Judge v Williams, 2011 WL 3759476 (E.D.N.C.) [Ireland] [ Attorneys Fees and expenses]

In Judge v Williams, 2011 WL 3759476 (E.D.N.C.) the matter was before the court on Petitioner Brian Anthony Judge's Application for an award of Expenses following the court's order, after a hearing, directing the return of his minor child, E.L.W.J. to the Republic of Ireland. On August 4, 2011, Petitioner timely filed his Application for Award of Expenses, pursuant to 42 U.S.C. 11607(b)(3), along with his affidavit and supporting documentation and an affidavit from his counsel.

The District Court observed that ICARA provides: Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of the proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 42 U.S.C. 11067(b)(3). It concluded that under the plain language of the statute, the court had the duty to order the payment of necessary expenses and legal fees unless Respondent satisfied her burden of showing that such an order would be clearly inappropriate. In this case, Respondent, who appeared at the hearing without counsel, failed to offer any response, and therefore the court could not find that she had met her burden in establishing that an award of expenses to Petitioner was clearly inappropriate. Petitioner sought $3,974.86 for expenses incurred by him personally, and submitted an affidavit supported by receipts. His expenses included the costs Petitioner incurred flying to North Carolina and back to the Republic of Ireland along with the costs of his lodging in North Carolina ($2,648.63), the costs Petitioner incurred flying E.L.W.J. from North Carolina to the Republic of Ireland ($844.30), and the cost of Petitioner's rental car in North Carolina ($481.93). The court found all these expenses to be reasonable and necessarily related to Petitioner's efforts to have E.L.W.J. returned to the Republic of Ireland. Petitioner also sought $673.84 for expenses incurred on his behalf by the law firm Womble Carlyle Sandridge & Rice, PLLC . Petitioner's counsel represented Petitioner pro bono in this proceeding, and accordingly, Petitioner was not seeking attorney's fees. He was seeking the expenses WCSR incurred on his behalf, including the filing fee for this action ($350.00), the cost of photocopies ($64.10), and his counsel's travel expenses to attend the hearing ($259.74). Petitioner's counsel submitted an affidavit detailing those expenses. The court found the expenses were reasonable and were related to the return of E.L.W.J. Accordingly, the court found that the total amount of $4,648.70 in expenses incurred by Petitioner or on his behalf to be reasonable and necessary to his efforts to have his child returned to the Republic of Ireland.

Chavez v Sequera, 2011 WL 3666581 (W.D.Tex.) [Mexico] [Default Judgment]

In Chavez v Sequera, 2011 WL 3666581 (W.D.Tex.) Plaintiffs filed their "Original Petition for Writ of Habeas Corpus and for Return of a Child Victim of International Abduction" in which they contended that on August 13, 2010 a female minor (N.H.S.) was with her parents in Ciudad Juarez when her parents were shot and killed. Juarez police allegedly delivered N.H. S. to Plaintiffs--N.H. S .'s paternal grandparents. The next day, while the minor child was left with her aunts, Defendants--the minor child's maternal grandparents and other relatives-allegedly acted together to physically overpower the aunts, abduct the minor child, and remove her to El Paso, TX. Plaintiffs subsequently initiated custody proceedings in the First Family Court of the Judicial District of Bravos, Chihuahua, Mexico, which they contended was a court of proper venue and represented that the court granted them temporary legal custody of N.H.S. in absentia since Defendants were "avoiding detection" in both Mexico and the United States. On March 4, 2011, Defendants were served with the Petition. Defendants had until March 25, 2011 to file an answer, but failed to do so. Fed. R. Civ. P. 12(a)(1)(A)(i). On March 31, 2011 the Clerk of the Court filed an "Entry of Default." As a result, Plaintiffs asked that the Court grant default judgment in their favor. The district court noted that a defendant must serve a responsive pleading within 21 days after being served with a summons and complaint. Fed. R. Civ. P. 12(a)(1). When a defendant fails to otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. Fed. R. Civ. P. 55. If a plaintiff's claim is not for a "sum certain" or for an amount that can be made certain by computation, application for the entry of a judgment by default must be made to the court. Fed.R.Civ.P. 55(B)(2). It indicated that on April 18, 2011, with all parties present, the Court held a hearing in order to apprise Defendants of the consequences of failing to answer Plaintiffs' Petition. At that time the Court explained its limited role under the Hague Convention and made it clear to Defendants that it was not the Court's duty to make an independent determination about the best interests of the child nor to opine as to the substantive legal proceedings relating to the issue of custody which were before the Mexican legal system. Further, the Court informed Defendants that they had failed to comply with the law by filing an answer timely.

Defendants did not formally appear either through counsel or pro se and did not file responsive pleadings to the Petition or to the Motion for Default Judgment. Based on the pleadings, the Court found that the allegations in Plaintiffs' Petition were facial sufficient to state their claim and merit the relief they were seeking. As a result, the Court granted the Motion for Default Judgment. It directed that that Defendants contact Plaintiffs' counsel, and arrange for the physical return of N.H. S. to Plaintiffs not more than seven (7) days following the service of its Order. It further ordered, among other things, that should Defendants fail to timely return physical custody of N.H. S. to Plaintiffs, upon notification from Plaintiffs of such deficiency, the Court may enlist the services of the United States Marshal to assist Plaintiffs in carrying out the provisions of its Order.

Avendano v Smith, 2011 WL 3503330 (D.N.M.) [Federal Rules of Evidence]

In Avendano v Smith, 2011 WL 3503330 (D.N.M.) Smith argued that the Federal Rules of Evidence did not apply to proceedings under the Hague Convention. The District Court disagreed with her. It observed that Rule 1101(b) of the Federal Rules of  Evidence states: "These rules apply generally to civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, United States Code."

The cases the Court found suggested that the Federal Rules of Evidence apply in a court's consideration of a petition for return of children. It noted that in Danaipour v. McLarey, 386 F .3d 289 (1st Cir.2004), the mother removed her two daughters from the Kingdom of Sweden to the United States of America in violation of a Swedish Court order, and the father filed suit in the United States seeking to have the children returned pursuant to the "International Child Abduction Remedies Act, and the Hague Convention on the Civil Aspects of International Child Abduction. The United States Court of Appeals for the First Circuit addressed the district court's conclusion, under rule 1101(b) of the Federal Rules of Evidence, that "the summary character of Hague Convention proceedings does not require application of the Federal Rules of Evidence regarding hearsay...." 386 F.3d at 296. The First Circuit stated: "While summary proceedings certainly may occur in cases under the Convention, this was not one. Indeed, this was a full trial." 386 F.3d at 296. The First Circuit stated, however: "Whatever our doubts, nonetheless, Danaipour has not directly raised on appeal the point of the applicability of the Federal Rules of Evidence; at most he argues that the mother's family's recounting of the children's statements to physicians constituted inadmissible double hearsay and was inherently unreliable."

The United States Court of Appeals for the Third Circuit has also suggested that the Federal Rules of Evidence apply in adjudications of petitions for return of children under the Hague Convention. See Karkkainen v. Kovalchuk, 455 F.3d 280, 285 (3d Cir.2006)(rejecting Karkkainen's claim that the district court improperly permitted testimony regarding the daughter's best interests, stating that "Karkkainen points to no specific instances in which the District Court permitted such testimony, and we have found none within the record. We also conclude that the District Court admitted hearsay testimony only under the exceptions of the Federal Rules and properly limited its use," and concluding, "[t]hus, we find no abuse of discretion on these points").

The Court thus concluded that the Federal Rules of Evidence apply to its consideration of the Petition.

Radu v Toader, 2011 WL 3418368 (E.D.N.Y.) [Romania] [Rights of Custody][Ne Exeat Rights]

In Radu v Toader, 2011 WL 3418368 (E.D.N.Y.) Iulian Cristian Radu ("petitioner") brought an action against Petruta Toader ("respondent") for the return of their child L.R. to Romania pursuant to the Hague Convention. Petitioner was a Romanian citizen, and currently lived in Romania. Respondent and L.R. were also Romanian citizens, but currently resided in Forest Hills, New York. The petition was filed on April 6, 2011. Petitioner and respondent were born in Romania and were Romanian citizens. In January 2003, the two married in Romania. Two years later, on January 13, 2005, L.R. was born in Romania. Petitioner, respondent, and L.R. lived together in respondent's parent's home in Bucharest, Romania until August 2009. In May 2009, respondent took a business trip to New York for approximately five days. Upon her return, she demanded that the family move to New York. When petitioner refused, respondent filed for divorce at the end of May 2009. Petitioner contended that after respondent filed for divorce, she refused to let him see his child. On October 2, 2009, a Bucharest court issued a Divorce Decree granting respondent sole custody of the child and granting petitioner visitation rights, for one year, for two weekends each month, two weeks during the summer, one week during winter vacation, and one week during the Easter holiday. The Divorce Decree provided that, pursuant to Romanian Family Code and Law no. 272/2004, the noncustodial parent "shall retain the right to a personal relationship with the child," have input in the "upbringing and education of the child," and maintain a "close emotional relationship" with the child. The Decree also required that petitioner pay 300 Lei each month in alimony, which he continued to do since the divorce. The court defines the custody determination as a "final and irrevocable court decision." The Divorce Decree stated that the dissolution of the marriage was by "shared fault." Both parties were represented by counsel during the signing of the Decree and there was no other evidence to indicate that there was any illegality in its construction. The district court noted that petitioners visitation rights did not amount to custodial rights as required for the return of the child to Romania. Between the divorce in October 2009 and L.R.'s removal from Romania in September 2010, petitioner exercised his visitation rights and provided financial and emotional support to the child. From approximately December 2009 to June 2010, respondent permitted petitioner to have additional visits with the child beyond his decreed visitation schedule. On September 17, 2010, respondent and the child moved to the United States without notifying petitioner. Respondent noted that she did not tell petitioner that she intended to change the child's domicile because she was "unsure how her relationship with another man-now her husband-would turn out." Respondent also maintained that her Romanian attorney told her that, pursuant to law 248/500, respondent did not need petitioner's permission to change the child's domicile. On September 25, 2010, petitioner went to pick up his child from respondent's home for his scheduled visit and was told by respondent's parents that respondent and the child had resettled in the United States. On September 29, 2010, petitioner received a letter from respondent's attorney, which provided him with respondent and L.R.'s new
address and telephone number in Forest Hills, New York. Petitioner has since had telecommunications with his child via both phone calls and video conference.

On February 25, 2011, petitioner filed a petition in the Bucharest Court seeking a decision that respondent's removal and retention of L.R. outside of Romania was illegal. On May 5, 2011, the Bucharest Court dismissed the action, finding that petitioner did not have standing to bring the suit and was without remedy of law.

The District Court observed that in order to raise a prima facie case, a petitioner had to prove by a preponderance of the evidence that: "(1) the child was habitually resident in one State and has been ... retained in a different State; (2) the ... retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights [or would have exercised those rights] at the time of the ... retention." Gitter v Gitter, 396 F.3d at 130-131. If a court deems that there has been a wrongful removal or retention of a child under the age of sixteen, and the petition was brought within a year of the wrongful removal or retention, the country in which the child is located must "order the return of the child forthwith," unless the respondent is able to raise an affirmative defense. Hague Convention art. 12. 

The District Court found that petitioner failed to establish a prima facie case of  wrongful removal and retention by a preponderance of the evidence. The parties did not dispute that L.R. was a habitual resident of Romania at the time of his removal. The pinnacle issue was whether respondent's unilateral decision to change the child's domicile was in breach of petitioner's rights of custody. Both sides cited to Abbott as the seminal case in determining whether petitioner has a ne exeat right-the right of a parent to require his consent before a child is taken out of the country. In Abbott, the Court held that a parent's ne exeat right qualifies as right of a custody under the Hague Convention. See 130 S.Ct. at 1990. Therein, the father and mother separated and a Chilean court awarded visitation rights to the father. Id. at 1988. The Court found that while visitation rights or "rights of access" alone did not amount to a ne exeat right, where the law of the country of residence explicitly requires a parent to give consent before removing the child, a custodial right exists. Thus, absent an explicit award of custody, the Court consulted the law of the country of residence to determine whether a parent had a ne exeat right.

The district court observed that the final and irrevocable Divorce Decree only awarded petitioner visitation rights, not custodial rights. The Court rejected petitioners argument that his visitation rights, in conjunction with four Romanian laws, amounted to a ne exeat right. The first law to which petitioner cited was the Romanian Law on the Protection and Promotion of the Rights of the Child, Law 272/2004, which concerns a child's temporary travel abroad. That law provides, in part, that "the child[ ]'s travel in the country or abroad may only be done when both parents have been notified and have agreed; any misunderstanding between the parents concerning the expression of this agreement is ruled upon by the court of law." Here, respondent did not notify petitioner of L.R.'s travel to the United States; however, any disagreement arising from the child's travel outside of Romania had already been ruled upon by "the court of law"--that is, the irrevocable and final decision rendered in the Divorce Decree, which granted sole custody to respondent. Although petitioner argued that his visitation rights alone created a ne exeat right, this argument was misguided. See Abbott, 130 S.Ct. at 1988-89 (finding that "direct and regular visitation rights," are recognized as "rights of access," but that these rights alone do not offer a return remedy under the Convention). Upon reading Law 272/2004 in full, the district court observed that the law clearly anticipated that a final and irrevocable custody determination would modify and limit the very parental rights which Law 272/2004 espoused. Article 16, for example, provides that the "court of law, considering the best interests of the child as a priority, can limit the exercise of the [noncustodial parent's right to maintain direct contact]." The Bucharest court that issued the parties' Divorce Decree did just that, and negated petitioner's custodial rights by awarding respondent sole custody of the child. Thus, petitioner failed to establish that the Divorce Decree and law 272/2004 created a ne exeat right. The second law to which petitioner cited was the Status of the Free Movement of the Romanian Citizens Abroad Law 248/2005, ("248/2005"), which states that a minor  Romanian citizen may leave the country when accompanied by one of his parents "without the need for the other parent's affidavit, only if the accompanying parent  presents proof that she has custody of the minor based on a final and irrevocable court decree." This law clarified that because respondent has a final and irrevocable Divorce Decree vesting her with sole custody of L.R., she could temporarily remove L.R. from Romania without petitioner's permission. The Court found that the Divorce Decree superseded the prior Romanian law requiring both parents' consent. The Romanian Consulate affirmed this finding in a letter to this Court, noting that "[i]n accordance with the Romanian Law no. 248/2005, as amended, the parent who has the custody of the child is entitled to request the issuance of a Romanian passport/travel document for the said child and to approve any trip abroad, without the other parent's consent." Accordingly, Law 248/2005 failed to confer upon petitioner a ne exeat right.

The Court concluded that petitioner had not established that he had any ne exeat rights as to L.R. under the Divorce Decree or Romanian law. The Romanian court rendered a final and irrevocable custodial determination in favor of respondent, did not award any custodial rights to petitioner, and was silent as to petitioner's ne exeat rights. This Decree, under Romanian law, then superseded any ne exeat right that petitioner may have had. Accordingly, petitioner failed to establish that respondent's retention of L.R. was in violation of his custodial rights.. Because the Divorce Decree did not afford petitioner with custodial rights, and Romanian law does not grant a ne exeat right in the face of the superseding Divorce Decree, petitioner had no custodial rights to exercise at the time of L.R.'s removal. Accordingly, petitioner failed to meet the third element of his prima facie case. The petition was therefore dismissed.

Vasquez v Colores,--- F.3d ----, 2011 WL 3366380 (8th Cir.(Minn.))[Mexico] [Grave Risk of Harm] [Evidence]

In Vasquez v Colores,--- F.3d ----, 2011 WL 3366380 (8th Cir.(Minn.)) Dr. Carlos Colores Vasquez filed a petition to return his twenty-two-month-old daughter, I.R.C., to Mexico. Stephanie Colores, Dr. Colores's estranged wife and mother of I.R.C., opposed the petition. The district court entered an order granting the petition. Ms. Colores appealed, arguing that the district court erred in denying her motion for a continuance and in excluding the testimony of two witnesses. The Eighth Circuit affirmed.

The Court observed that the Article 13(b) exception, on which Ms. Colores relied, applies if the party opposing the petition establishes by clear and convincing evidence that "there is 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." It indicated that it has recognized two types of grave risk that are cognizable under Article 13(b): cases in which a child is sent to a zone of war, famine, or disease and those involving serious abuse or neglect. (Citing Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003).

Ms. Colores, an American citizen, and Dr. Colores married in Minnesota in the summer of 2007 and moved to Mexico. Their daughter, I.R.C., was born in December 2008. In early May 2010, Ms. Colores left Mexico with I.R.C. and traveled to South Carolina, where her mother was vacationing. The three returned to her mother's home in Minnesota in late May. Dr. Colores filed his petition for emergency ex parte relief under the Convention on August 23, 2010. The district court granted that petition two days later. Ms. Colores sought a continuance, claiming that she needed more time to obtain additional information from the United States Embassy in Mexico City and security footage from the gated community in which she and Dr. Colores had lived. Dr. Colores objected to the continuance, arguing that Ms. Colores had failed to demonstrate that the information was material to the petition. The district court denied the motion for a continuance, and the parties commenced the first of three evidentiary hearings on September 1. The parties agreed that I.R.C. was a habitual resident of Mexico and that her removal was wrongful because Dr. Colores did not consent and I.R.C. did not have a valid passport.

Ms. Colores claimed that the Article 13(b) exception applied and thus the district court was not obligated to return I.R.C. to Mexico. Over the course of the hearings, she sought to establish that Dr. Colores's anger problems and history of abuse posed a grave risk of physical or psychological harm that satisfied the Article 13(b) exception. She testified that Dr. Colores had abused I.R.C. by shaking her head forcefully six to ten times a month, head-butting her two to three times a month, or hitting her on the back with his fist. Barbara Jo Gangl, Ms. Colores's mother, testified that she had witnessed Dr. Colores shake I.R.C.'s head forcefully and pull her hair. Following Ms. Colores's testimony, she sought to elicit testimony from John Gangl, her stepfather. She proffered that he would corroborate her account of Dr. Colores's episodes of rage by recounting a telephone conversation in which Dr. Colores allegedly lashed out at Gangl after he complained about Dr. Colores's refusal to pick up Barbara Jo from the airport when she visited. The district court inquired whether Gangl had witnessed Dr. Colores in a rage in the presence of I.R.C. and was told that he had not. The district court concluded that the proffered testimony was not relevant and excluded it. Ms. Colores also sought to elicit expert testimony from Dr. Jeffrey L. Edleson, Professor and Director of Research at the School of Social Work at the University of Minnesota and the Director of the Minnesota Center against Violence and Abuse. On September 7, 2010, when Ms. Colores first broached the topic of calling Dr. Edleson with the district court, he was unavailable to appear because he had been hospitalized. When questioned, counsel for Ms. Colores could not provide the court with more information why Dr. Edleson had been hospitalized or when he might be available. As part of her offer of proof, Ms. Colores recounted Dr. Edleson's expertise in the area of domestic violence and referred to a study, funded by the National Institute of Justice, the research arm of the U.S. Department of Justice, that addressed "the risk of harm to children in the context of domestic violence against parents and children in [Hague Convention cases]." At the time, the study was unpublished and not subject to peer review. Dr. Colores objected to the proposed testimony, noting that the witness had not been disclosed previously and had not examined I.R.C. or interviewed either of her parents. Dr. Colores argued that the proffer consisted of a generalized summary of phenomena associated with domestic abuse and was irrelevant to the specific issues at issue in the proceedings. Dr. Colores also maintained that such testimony would not shed light on the specific claims Ms. Colores made, but would only extend the proceedings and thereby exacerbate his financial hardship. The district court excluded
Dr. Edleson's testimony, concluding that it was unreliable and irrelevant.

On September 14, 2010, the district court entered an order granting Dr. Colores's petition. It did not find credible Ms. Colores's allegations that there was a grave risk that I.R.C. would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if she were returned to Mexico. It cited findings of a pediatric neurologist who had examined I.R.C. at the district court's request and who opined, based on his examination and on I.R.C.'s normal, age-appropriate neurological development, that there was no evidence of any neurologic injury. The district court also found that Ms. Colores had never reported any injury and had been willing to leave I.R.C. with Dr. Colores for ten days when she returned to the United States to attend a funeral.

The Court of Appeals pointed out that Ms. Colores's motion for a continuance was based on her claim that she needed to gather evidence that was located in Mexico. According to Ms. Colores, the evidence consisted of witness statements and videotapes from surveillance cameras of the gated community in which she and Dr. Colores had lived, as well as a copy of a report she had allegedly filed with the U.S. Embassy documenting Dr. Colores's abuse of herself and of I.R.C. Dr. Colores contended that Ms. Colores failed to establish that the evidence she sought was material and that the district court appropriately denied the motion in light of the prejudice Dr. Colores suffered from continued delay and the primacy placed on expediency in Convention proceedings. Given the underlying circumstances and the professed goal of expediency in Convention proceedings, the Court of Appeals agreed that the district court did not abuse its discretion in denying the motion.

The Court also observed that a district court enjoys wide discretion in ruling on the admissibility of proffered evidence, and evidentiary rulings should only be overturned if there was a clear and prejudicial abuse of discretion. To warrant reversal, an error must affect a substantial right of the objecting party, and the burden of showing prejudice rests on that party. Ms. Colores maintained that her stepfather's testimony would have corroborated her account of Dr. Colores's rage and anger. The incident at the heart of the proffer occurred in December 2008, when Gangl and Dr. Colores argued on the telephone after Dr. Colores refused to pick up Barbara Jo from the airport when she came to visit and instead asked that she take a cab to the house. After hearing the details of the phone conversation and determining that Gangl was not physically present with I.R.C. when it occurred, the district court concluded that the proffered testimony was not relevant and excluded it. The Court of Appeals held that at best, the proffered testimony repeated Ms. Colores's account of her husband's behavior on the night of the telephone call. But I .R.C. was not implicated in the particulars of the phone call, and Gangl's proffered testimony would have been cumulative of prior testimony from Ms. Colores and her mother. Accordingly, it could not say that the district court abused its discretion in excluding this testimony.

Ms. Colores argued that the district court abused its discretion in excluding testimony from Dr. Edleson. Federal Rule of Evidence 702 governs the admission of expert testimony and requires that the district court function as a gatekeeper to "ensure that any and all scientific testimony or evidence is not only relevant, but reliable." (Citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert may testify in the form of an opinion or otherwise so long as "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702.

The Court held that it did not have to determine whether Dr. Edleson's testimony was unreliable because the report that would have served as its basis had not yet been published or peer-reviewed, because it concluded that the district court did not abuse its discretion in excluding the testimony as irrelevant after finding that Dr. Edleson had not interviewed either of the parties or I.R.C. The district court concluded that Dr. Edleson's testimony would not have directly aided the fact-finder in sorting out whether abuse had occurred and, if so, what effect it had on I.R.C. It emphasized that there was little physical evidence of abuse or mistreatment and that the veracity of the allegations of abuse turned primarily on the credibility of the parties' testimony. Questions of admissibility "are not to be measured by what we may have done were we the district court," but whether its evidentiary decisions constitute "a clear abuse of discretion." Dunn v. Nexgrill Indus., Inc., 636 F.3d 1049, 1057 (8th Cir.2011). Ms. Colores did not demonstrate that excluding the testimony was so prejudicial as to require reversal. She did not contend that Dr. Edleson had concluded that Ms. Colores or I.R.C. had been abused or that I.R.C. faced a grave risk of harm if she were returned to Mexico. So far as the district court was aware, Ms. Colores did not contend that Dr. Edleson had formed any opinion as to I.R.C. It concluded that the exclusion of Dr. Edleson's testimony did not warrant reversal.

Suarez v Castrillo, 2011 WL 2669198 (D.Colo.) [Venezuela] [Availability of Hague Convention as a Remedy]

In Suarez v Castrillo, 2011 WL 2669198 (D.Colo.) Petitioner and Respondent were the parents of three minor children. On or about June 29, 2011, Ms. Suarez filed a Petition For Enforcement of Child Custody Decree in the Colorado District Court for Arapahoe County. That Petition alleged that the parties were subject to a 2003 divorce and custody decree from a court in Venezuela that gave Ms. Suarez legal custody of the children. The Petition recited that the children resided with Ms. Suarez pursuant to that decree, first in Venezuela and, upon Ms. Suarez's move in September 2007, in Alberta, Canada. Ms. Suarez alleged that she and Mr. Castrillo reached an agreement by which the children would temporarily reside with Mr. Castrillo in Colorado for one school year, and then be returned to Canada. Ms. Suarez alleges that that agreement had now expired, but Mr. Castrillo refused to return the children to Canada.

The District Court observed that Ms. Suarez's proceeding in Arapahoe County invoked C.R.S.14-13-101 et seq., Colorado's implementation of the Uniform Child Custody Jurisdiction Enforcement Act. Part 3 of that Act incorporates the principles of the Hague Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980. The statute provides that Colorado courts "shall recognize and enforce a child-custody determination of a court of another state," including foreign nations, and allows those courts to "grant any relief normally available under the law of this state to enforce a registered child-custody determination made by a court of another state." Upon a properly-supported petition by a parent claiming custodial rights over a child, the state court is required to hold an expedited hearing and direct that the petitioning parent "take immediate physical custody of the child" unless the respondent parent demonstrates certain specific facts calling the validity of the custody order into question.

On July 5, 2011, Mr. Castrillo filed a Notice of Removal pursuant to 28 U.S.C. s 1446, removing the action from the Colorado District Court to this Court. Mr. Castrillo contended that this Court had original jurisdiction over the proceeding pursuant to 28 U.S.C. 1441, insofar as this action "involves a federal question," although Mr. Castrillo did not specifically identify the source of that question. He noted that Ms. Suarez's petition uses terms that are "used only in matters pursuant to the Hague Convention," that Ms. Suarez had previously filed a request with Canadian authorities under the Hague Convention, and thus, apparently concluded that this action "arises under the Hague Convention."

The District Court held that on its face, Ms. Suarez's petition did not invoke a federal question. Her claims arose exclusively under Colorado statutory law; she did not invoke any provisions of the federal International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. s 11601, either directly or inferentially. The fact that she used terminology consistent with the Hague Convention (and, for that matter, with ICARA) was of no significance, insofar as Colorado's UCCJEA is expressly cognizant of
the Hague Convention, and incorporates by reference certain aspects of that treaty. Ms. Suarez could have asserted a claim under ICARA either in lieu of or in addition to her claims under Colorado's UCCJEA, see 2 U.S.C. s 11603(a) (conferring concurrent jurisdiction on state and federal courts over ICARA claims), but for whatever reason, Ms. Suarez elected to pursue only those remedies that Colorado provides. Accordingly, the face of her pleading did not invoke any federal question. Mr. Castrillo's citation to Matter of Mahmoud, 1997 WL 43542 (E.D.N.Y.1997) (unpublished), was inapposite. There, the petitioning parent had filed an ICARA claim in state court, which the respondent parent sought to remove to federal court. Thus, the Court found that Ms. Suarez's claim arose purely under state law and was not preempted by federal law. Accordingly, Mr. Castrillo failed to carry his burden of demonstrating that the Court possessed subject-matter jurisdiction over the action and it was remanded to the Colorado District Court for Arapahoe County pursuant to 28 U.S.C. 1447(c).

Judge v Williams, 2011 WL 3100346 (E.D.N.C.) [Ireland] [Rights of Custody]

In Judge v Williams, 2011 WL 3100346 (E.D.N.C.) Petitioner Brian Anthony Judge filed a Verified Petition Under Hague Convention seeking the return of his minor child, E.L.W.J. ( "Child") to the Republic of Ireland. In an order filed on July 20, 2011, the court found, pursuant to 42 U.S.C. 11604 and North Carolina General Statute s 50A-31, that E.L.W.J. was imminently likely to be removed from the state by her mother, Respondent Rebecca Lynn Williams, if not taken into immediate custody pending the court's ultimate disposition of the Hague Petition. Accordingly, the court ordered that a warrant be issued directing the United States Marshal to take physical custody of E.L.W.J. and deliver her to the court for a hearing on the Hague Petition set for July 21,2011, at 4 p.m. The court ordered that the Marshal could, if necessary, deliver E.L.W.J. into the custody of Petitioner pending the hearing.

The matter came on for hearing on July 21, 2011. Petitioner was present with his attorney, Jennifer Lyday, and E.L.W.J. Respondent was present, without an attorney. The undersigned asked Respondent if she was prepared to go forward without an attorney, and Respondent answered yes. Both Petitioner and Respondent testified, and introduced evidence. Based on the testimony and evidence at the hearing and the Verified Hague Petition and Verified Application, the found that E.L.W.J. was born in the Republic of Ireland on May 4, 2007. Petitioner was E.L .W.J.'s father, and Respondent was E.L.W.J.'s mother. Petitioner and Respondent have never married. On January 26, 2010, Petitioner and Respondent executed a statutory guardianship declaration which granted Petitioner joint guardianship of E.L.W.J. under Irish Law pursuant to Section 4(2) of the Children Act of 1997. From E.L.W.J.'s birth until July 2009, Petitioner lived with the Child and raised the Child with Respondent. Both Petitioner and Respondent lived with the Child again from January 2010 until June 2010. From July 2009 to January 2010 and again from June 2010 until the events giving rise to the filing of the Hague Petition, Petitioner spent time with the Child every Wednesday and Saturday. The Child spent the night with Petitioner every other Saturday. E.L.W.J. lived in Ireland from her birth until March 2011. She was enrolled in a Montessori classes for the school term of September 2010-June 2010. In January 2011, Respondent told Petitioner that she would like to visit the United States to see her sister, and that she would like to take E.L.W.J. with her. Petitioner refused to sign a passport application for E.L.W.J. Petitioner averred that Respondent nevertheless obtained a United States passport for E.L.W.J. without his knowledge or consent. On the passport application, Respondent stated she would be using the passport to travel to the United States for six weeks. The passport was issued on March 3, 2011. On Wednesday, March 16, 2011, Petitioner spent time with E.L.W .J. during his regularly-scheduled access time. Respondent told him at the conclusion of the access time that she was planning on taking a trip over the upcoming weekend so Petitioner would not have his regularly-scheduled Saturday access time. On March 19, 2011, Petitioner sent Respondent a text message asking to speak with E.L.W.J. Respondent replied that Petitioner would be able to speak with E.L.W.J. on Monday. On March 22, 2011, Respondent emailed Petitioner telling him she was "gone for good." She told Petitioner it was in the best interest for her, E.L.W.J., and her older child to be away from Petitioner. She warned Petitioner not to come looking for her because he would never find her. Petitioner reported Respondent's taking of E.L.W.J. to the local police. He filed an application with the Irish Central Authority, the office designated by Ireland to administer its responsibilities under the Hague Convention. Petitioner thereafter filed for sole custody of E.L.W.J. He testified that the Irish District Court for the Dublin Metropolitan District served Respondent in the United States with notice of the hearing on the application. Respondent did not attend the hearing. The Irish District Court granted Petitioner sole interim custody of E.L.W.J. and scheduled another hearing on September 29, 2011. Respondent testified she did not feel E.L.W.J. was safe in Petitioner's custody. She testified that in the past Petitioner allowed E.L.W.J. to insert an object in her nostrils, necessitating a visit to the emergency room, and blamed the incident on E.L.W.J.'s older half-sister. She also testified that Petitioner had, on one occasion, locked E.L.W.J. and her half-sister in a sitting room for hours. In June 2010, he took painkillers that did not belong to him and was impaired. She also testified that E.L.W.J.'s half-sister was a witness to Petitioner physically assaulting Respondent on one occasion, and that Petitioner broke Respondent's arm while on a vacation in Spain. Respondent also testified that Petitioner spoke to E.L.W.J.'s half-sister about topics which were inappropriate. She introduced into evidence email correspondence between herself and Petitioner, wherein each accused the other of drug use and inappropriate behavior. Respondent testified that Petitioner had not, however, ever harmed E.L.W.J. Respondent also testified that separating E.L.W.J. from her half-sister would result in psychological harm to both children.

The District Court granted the petition. It noted that "Habitual residence" is not defined by the Hague Convention. Miller, 240 F.3d at 400. The Fourth Circuit has concluded, however, that "there is no real distinction between ordinary residence and habitual residence." A court must make a fact-specific inquiry on a case-by-case basis to determine a child's customary residence prior to the removal or retention. In undertaking this inquiry, the court uses a two-part framework. Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). The court first examines whether the parents shared a settled intention to abandon the former country of residence. The court then examines the extent of the child's acclimatization to the new country of residence. Under the framework set forth in Maxwell, E.L.W.J.'s habitual residence was the Republic of Ireland. First, there was no shared parental intent to abandon the Republic of Ireland as E.L.W.J .'s habitual residence. Second, there was no indication that the short four months E.L.W.J. has spent in the United States rendered her so acclimatized to her life in this country that the court "can say with confidence that [E.L.W.J.'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 life and social environment in which [her] life has developed." Petitioner had "custody rights" as to E.L.W.J. as they are defined under the Hague Convention and Irish law. The Hague Convention defines "rights of custody" as including "rights relating to the care of the person of the child, and in particular, the right to determine the child's residence." Convention, art. 5. The Eleventh Circuit, in examining Irish law, has observed that "guardianship" under Irish law " 'concerns matters of overriding seminal importance to a child's upbringing' " and " 'the duty to ensure that a child is properly cared for and that decisions relating to the child are made with his or her best interests at heart.' " Hanley v. Roy, 485 F.3d 641, 646 (11th Cir.2007). The Eleventh Circuit concluded that guardianship rights under Irish law "necessarily involve 'the care of the person of the child' within the meaning of the [Hague] Convention." The district court similarly concluded that joint guardianship under Irish law is a right of custody within the meaning of the Hague Convention. Additionally, it was undisputable that Petitioner had "custody rights" as to E.L.W.J. after June 29, 2011, when the Irish District Court awarded him interim sole custody of the child. Respondent's removal of E.L.W.J. from Ireland was in breach of Petitioner's custody rights. Petitioner's custody rights--by virtue of his joint guardianship of E.L.W.J.--included the right to make decisions of overriding seminal importance to E.L.W.J.'s upbringing. The nation where E.L.W.J. is reared is a matter of overriding seminal importance to E.L.W.J.'s upbringing, and Petitioner had the

right to take part in that decision. Moreover, Respondent's retention of E.L.W.J.

in the United States after the Irish District Court awarded Petitioner interim

sole custody of the child was in breach of Petitioner's custody rights. Petitioner was exercising his custody rights at the time of the E.L.W.J.'s removal from Ireland and retention in the United States. Courts "will 'liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.' " Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007)(quoting Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir.1996) ("Friedrich II "). The Fourth Circuit has explained that under this approach: " 'a person [who] has valid custody rights to a child under the law of the country of the child's habitual residence ... cannot fail to 'exercise those custody rights under the Hague Convention short of acts that constitute clear and

unequivocal abandonment of the child." Here, Petitioner had been active part in E.L.W.J.'s life from her birth until she was removed from Ireland.

The court found that Petitioner established, by preponderance of the evidence, a prima facie case under the Hague Convention. It next found that the Respondent had not met her burden in establishing the "grave risk of harm" affirmative defense. Petitioner had never harmed E.L.W.J. nor was there any suggestion that he would harm her. Nor was there evidence of a sustained pattern of physical abuse and/or propensity for violent abuse. Moreover, there was no evidence that E.L.W J.'s separation from her half-sister would result in the type of severe psychological harm envisioned by the affirmative defense. See Freier v. Freier, 969 F.Supp. 436, 443 (E.D.Mich.1996)(finding that a child's separation from her mother and two half-siblings did not establish the "grave risk" defense because "this sort of adjustment problem common in the relocation of most children is not enough"). Finally, Respondent had not shown, by clear and convincing evidence, that returning E.L.J.W. to Ireland would subject her to an intolerable situation.

Carnelli v Pas, 2011 WL 1983360 (D.N.J.) [United Kingdom] [Return to Different Country than Habitual Residence] [Wishes of Child]

In Carnelli v Pas,  2011 WL 1983360 (D.N.J.) Not for Publication, a  Petition was filed by Mirna Judith Rodriguez Carnelli ("Petitioner") for the return of her minor child. The District Court denied the Petition based on the "wishes of the child" exception.
 Petitioner and Respondent, both natives of Uruguay, were married on May 3, 1988 in  Uruguay. In June 1988, Respondent emigrated to the United States, and his wife and  young daughter, Virginia, followed in 1990. The family settled in Kearny, New  Jersey. On September 20, 1996, Daniel was born in Belleville, New Jersey. The family  resided together in Kearny until 2002, when Petitioner and Respondent separated. At  that point, Petitioner and her children continued to live in Kearny, New Jersey, while Respondent resided in a separate home in the neighboring town of Harrison. When Petitioner lost her job at a bank in 2004, she was unable to find new  employment, a circumstance she attributed to her immigration status. Through personal  connections, she was offered a job in Mallorca, Spain. Her emigration to  Spain required her to depart from her native Uruguay, where she was a citizen and  could obtain the necessary travel authorization. Prior to departing for Uruguay in or  about January 2005, she and Respondent reached an agreement regarding the minor  children: Virginia would live in the United States in Respondent's care and Daniel would
remain with his mother. Petitioner and Respondent jointly obtained a United States passport for Daniel's international travel to Uruguay, and then to Spain.
 While in Uruguay, Petitioner sought to dissolve her marriage with Respondent. Although Respondent also contends that he did not consent to the divorce, he admitted  that he signed the divorce documents. The Uruguayan court entered a Divorce  Decree terminating the marriage of the parties on or about September 28, 2005. It  included a custody agreement, whereby Respondent would continue to exercise custody over Virginia and Petitioner would exercise custody over Daniel.
Petitioner and Daniel moved to Spain, where they remained until January 2009. At that time, a loss of employment prompted Petitioner to relocate. She was offered a job in London,  and so in or about January 2009, Petitioner, Daniel, and Petitioner's second husband, whom she married on September 23, 2008, moved to the United Kingdom. Per a signed authorization transmitted from the Uruguayan Consulate in
New York to the Uruguayan Consulate in Palma de Mallorca, Respondent consented to Daniel's residence in Spain and the United Kingdom in the custody of Petitioner. In or about July 2009, Daniel traveled from the United Kingdom to the United States to  spend the summer with his father, as he had done every year since leaving the United  States in 2005. While Daniel was visiting Respondent, Petitioner's husband returned to
his native Argentina upon the death of his mother, and Petitioner soon relocated there to help her husband care for his ailing father. Petitioner informed Respondent of her  situation and asked that he keep Daniel in his care until she was able to sort out her  residency, which was necessary for Daniel to obtain his own Argentine residency. She  admited that she agreed to his enrollment in school in New Jersey, given the uncertainty regarding how long it would take for her residency to be approved but stressed that she made it clear to Respondent that Daniel should be returned to her once she obtained residency. When the residency was approved on October 15, 2009, Petitioner asked for Daniel to return but Respondent refused. Petitioner claimed that at that point, she began to encounter consistent difficulty in establishing contact with Respondent and ultimately was unable to establish contact at all.  Daniel  remained in the physical custody of his father since July 2009 to the present. Petitioner filed the Petition in this Court on June 16, 2010.  At that time, Daniel was 13 years old. He was currently 14.
  The Court found that Petitioner met her burden of proving that Daniel was wrongfully retained. The retention occurred in or about October 2009, when, according to Petitioner's testimony,  she asked that Daniel be returned to her and Respondent failed to comply with her  wishes. Petitioner conceded that the United Kingdom was the child's place of habitual residence. Petitioner's request for Daniel's return showed her exercise of her custody rights.   Having found a wrongful retention, the Court noted  that this case presented a slightly unusual situation with regard to the interplay between Article 3, which sets forth the standard for wrongful removal or retention, and Article 12, which directs the return  of the child forthwith if that standard is met. The country in which Daniel was habitually resident immediately before his wrongful detention--which Petitioner conceded was the United Kingdom–was not the country to which Petitioner sought he be returned. Petitioner relocated to Argentina after Daniel traveled to the United States. Nor was Argentina a place Daniel ever called home, such that his return to his mother would effect the Convention's goal of having custody disputes resolved in the home country, as opposed to the place where the child has been wrongfully removed or retained. Petitioner argued that the discrepancy between the country of habitual residence, as defined by the Convention, and the country to which she sought Daniel's return should not foreclose the relief she sought because Article 12 of the Convention was deliberately silent on the matter of where the return of a wrongfully removed or retained  child should be ordered. Petitioner appeared to be correct. Article 12 simply provides that "the authority concerned shall order the return of the child forthwith," without specifying, as the preamble to the Convention contemplates, that the return be to the country of habitual residence. (see also Von Kennell Gaudin v.
Remis, 282 F.3d 1178, 1182 (9th Cir.2002) (noting that Convention does not make
clear to what country a child must be returned and pointing out difference between
Convention's preamble and its actual text). The Convention's official commentary, cited
by Petitioner in support of her argument, bears out the view that a court handling a
Convention claim may order the return of a child to the custodial parent even if the
parent is not in the place of the child's habitual residence. ( See Elisa Perez Vera, Explanatory Report P 110, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 459-60 (1982).
        Though the Court agreed with Petitioner's argument that it was authorized under the Convention to return Daniel to his mother's custody in Argentina, the Court found that Respondent had proven, by the required preponderance of the evidence standard, that Article 13's "wishes of the child" defense applied.  Article 13 provides that "[t]he judicial or administrative authority may also refuse to order the return of the child if it finds 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  [sic] views." Daniel unequivocally testified that he wished to remain in the United States with his father. There is no set age under the Convention at which a child is deemed to  be sufficiently mature; rather, the Third Circuit guides that the district court hearing the matter must make this fact-intensive determination on a case-by-case basis. Tsai-Yi Yang, 499 F.3d at 279. Daniel, who is 14, expressed his wishes to stay with his father in a cogent and well-reasoned manner. He explained that he enjoyed meaningful and close relationships with many family members also living in or near his father's home in Kearny, New Jersey, including specifically his sister, Virginia, his cousin Michael and his Aunt Betsy. He also testified that he was happy with his schooling as a  student in Kearny High School, where he enjoyed friendships and, as the records demonstrated, had achieved good grades. In contrast, he described an itinerant and somewhat lonely lifestyle with his mother. He also testified that while he spoke a little Spanish, he was not fluent in the language, which further provided a reasoned basis for his desire to remain with his father in the United States. Moreover, there was no indication that Daniel's wishes to remain with his father were somehow the product of undue  influence by his father or some other family member or third-party. The Court also noted that his wishes did not appear to arise from a teenager's rebellious streak or  some aversion to his mother. Daniel made it very clear that he loved both of his parents and wished to have a harmonious relationship with both of them. His preference to remain in the United  States with his father would seem to stem, rather, from a desire for a more stable  lifestyle than his mother was able to provide.  Petitioner drew attention to the fact that during this period of time that Daniel had been living with his father, it has been very difficult for her to contact Daniel and that,  moreover, the infrequent contact she did have with him (mostly over computer chats, as opposed to telephone) had been strained. She indicated her belief that this breakdown of communication with her son evidenced Respondent's efforts to alienate  Daniel from Petitioner. The Court  observed that communication between Petitioner  and her son had been lacking. Daniel did display feelings of resentment toward  his mother, but based on his testimony, the Court understood this tension to stem  from Daniel's frustration with his mother's lack of candor with respect to her pursuit of this Petition and her role in the commencement of an ultimately unsubstantiated child welfare investigation by New Jersey's Division of Youth and Family Services. The Court listened attentively to Daniel's testimony, and it did not perceive the communication problems between Daniel and Petitioner to be indicative of any manipulation by  Respondent of Daniel's thoughts and feelings but rather of the boy's difficult position in which he is caught in a tug-of-war between his adversarial parents. The Court weighed this unfortunate circumstance and concluded that it does not diminish the  reasonableness of Daniel's wish to remain in the United States with his father.  The Court found that Daniel presented as a thoughtful and intelligent young man, who, at the age of 14,  demonstrated a degree of maturity at which it was appropriate for the Court to consider his views regarding whether to stay with his father or be returned to his mother. Accordingly, the Court  denied the Petition under Article 13 of the Convention and the  implementing statutory provision, 42 U.S.C. 11603(e)(2)(B).

Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) [Ukrane] [Federal and State Judicial Remedies]

In Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) Petitioner Oleg Yuriyovich Khalip (Petitioner) sought the return of his two minor children, claiming that the children's mother, Respondent Alla Viktorivna Khalip, a/k/a Alla Viktorivna Galkin, (Respondent), wrongfully removed them from the Ukraine to Michigan. Petitioner was born in 1964 in the Ukraine and was a citizen and resident of the Ukraine since his birth. Respondent was born in 1977 in the Ukraine. She was a native and citizen of the Ukraine, where she resided until June 11, 2010. Petitioner and Respondent were married on January 25, 2002. Their two children were born in the Ukraine; IOK in 2002 and KOK in 2003. On November 20, 2009, Petitioner and Respondent divorced; a custody agreement was not reached during the divorce proceedings. On May 11, 2010, Petitioner signed a notarized application, which gave consent to Respondent to permanently move IOK and KOK to the United States. On June 1, 2010, Petitioner signed a notarized application revoking his consent because, according to Petitioner, Respondent breached an oral agreement related generally to the upbringing of the children and their permanent residence after the age of 16. According to Petitioner, he personally served the revocation application on Respondent on June 8, 2010. In support, he proffed three affidavits from witnesses who said that they overheard the conversation between Petitioner and Respondent. Respondent disputed that she was ever served with Respondent's revocation. On June 10, 2010, Respondent moved to Michigan with IOK and KOK, where they permanently resided since. According to Petitioner, Respondent picked up the children from school on June 10, 2010, and secretly took them to Michigan without Petitioner's knowledge. According to Respondent, Petitioner agreed to the move. Respondent asserted that upon their arrival in Michigan, she provided Petitioner with telephone and email contact information. She said that the children had regular contact with Petitioner via phone and video chat and that Petitioner visited them twice in Michigan within two months. Petitioner did not admit or deny the visits. On June 14, 2010, Respondent remarried to Leonardo Alex Galkin (Galkin). Respondent, Galkin, and the two children now lived together in Ann Arbor, Michigan.

The Court observed that under Ukrainian law, each spouse has equal rights and obligations in the marriage and family. Article 51, Ukraine Constitution. The Family Code of Ukraine establishes the equal rights and duties of the parents with regard to a child whether they were married or not. Article 141, Ukraine Family Code. Particularly, a divorce does not influence on the extent of the parental rights and duties. A child's residence under the age of ten shall be determined by the consent of his or her parents. Article 160, Ukraine Family Code. If a mother and a father who live separately have not come to agreement in the question where the minor children should live, their dispute may be resolved by a court. Article 161, Ukraine Family Code. Finally, if one of the parents or any other person willfully, without consent of another parent or another persons, with whom the minor child lived according to the law or by the court decision, change the place of his or her residence, also by means of abduction, a court, upon application of the interested person, has the right to deliver immediately the decision on depriving the child and his or her return to the last place of residence. Article 162, Ukraine Family Code.

On July 7, 2010, a Ukraine district court entered a decision in response to Petitioner's consent revocation application, which certified Petitioner's revocation and held that Respondent had illegally taken the children without Petitioner's consent. The Ukrainian appeals courts affirmed the lower court's decision, after which the Ukranian district court ordered immediate taking of the children. On February 2, 2011, Respondent appealed to the Highest Specialized Court of Ukraine. The high court accepted the appeal, effectively staying the lower court's rulings.

On September 3, 2010, Petitioner filed the petition. On March 9, 2011, the Court heard oral argument on the petition. On March 23, 2011, the Court interviewed the children in chambers. Each articulated the reasons that they do not want to return to the Ukraine: generally, because they recalled that the Ukraine was dirty and preferred the United States, which they said was cleaner and bigger. KOK stated that she did not want to be without her mother. Petitioner moved the Court to appoint an independent psychologist to interview the children, and the Court ordered a psychologist to "determine and report to the Court and both parties whether or not the children have attained an age and degree of maturity for the Court to take account of their views." If the answer to the first question was "yes," the psychologist was further ordered to "determine and report the children's views regarding returning to the Ukraine to live." The psychologist's report was filed with the Court, and both parties, on April 19, 2011. In response to the Court's first question, the psychologist stated: In my professional opinion, speaking as a psychologist, neither child (IOK or KOK) is at his or her present age and stage of cognitive and emotional development capable of conducting a mature (in the sense of: thoughtful, rational, and reasonably balanced and comprehensive) analysis of his or her own best interests with respect to the question of returning to live in the Ukraine with their father.

Respondent conceded that the Ukraine, where the children were born and had always lived, was the habitual residence of the children prior to their removal. To demonstrate that he was exercising valid custody rights at the time the children were removed to Michigan, Petitioner, inter alia, cited his consent revocation application and the decisions from the Ukraine district and appellate courts, which certified the revocation and ordered the children's return. Respondent said she did not wrongfully remove the children because Petitioner consented to the children's permanent change of residency, relying on the May 11, 2010, consent application. She asserted that she was not aware of Petitioner's June 1, 2010, revocation at the time that she moved with the children on June 10, 2010. Based on the evidence, particularly the consent revocation document, which was notarized before Respondent moved with the children, the court held that Petitioner submitted sufficient evidence to show that at the time the children were removed he was exercising his custody rights. Further, the surreptitious nature of Respondent's move with the children--without Petitioner present and executed in an unplanned manner by picking up the children from school without the Petitioner's knowledge or that of the children's caretaker--weighed in favor of Petitioner's assertion that Respondent moved without his consent. Finally, even if Respondent was not aware of the revocation, it did not take away from the fact that Petitioner exercised his rights by expressly revoking his consent in a notarized writing, which he then filed in the Ukranian courts for certification. This was not a case where Petitioner simply changed his mind. Thus, Petitioner established by a preponderance of the evidence that the children were wrongfully removed.

Respondent argued that Petitioner consented to the removal when he signed the consent application, and that he subsequently acquiesced in the removal of the children when he visited them in Michigan on two occasions. In response, Petitioner argued that he did not consent to the children's removal and again profferred the consent revocation document and the Ukranian district and appellate court decisions to support his assertion. On balance, the evidence weighed in Petitioner's favor. Particularly, the consent revocation document and the Ukranian district and appellate court decisions persuaded the Court that Petitioner was actively exercising his custodial rights before and after the children were removed. Also, the manner in which the children were removed supported the inference that Petitioner did not consent to the children's removal. Petitioner's visits to Michigan and communication over email and through video chat failed to demonstrate that he acquiesced in the removal. The Court also found that IOK and KOK had not reached the requisite level of maturity that a Court should consider their views. Accordingly, the Court found that the age and maturity defense did not apply.

The Petition was granted and it was ordered that the parties' children, IOK and KOK, be returned to the Ukraine, pursuant to the Convention and ICARA. However, in light of Respondent's May 13, 2011, supplemental filing, submitted on the eve of the Court's decision, the Court stayed the effectiveness of this decision for 30 days. The Court recognized that the July 7, 2010, decision from a district court in the Ukraine, which ordered the immediate return of the children appeared to have been effectively stayed by the Highest Specialized Court of Ukraine. In the Ukraine, "High Specialized Courts shall consider cassation complaints of respective court jurisdiction; analyze, study, and cumulate court practice; assist lower courts to ensure identical application of Constitutional norms and laws in court practice; perform other functions." Martindale-Hubbell Law Digest, Ukraine, 11 (2008). The Highest Specialized Court of Ukraine "ruled": (1) [t]o start cassation proceedings, concerning the claim of [Petitioner] towards [Respondent] ... concerning separation of the children, their return to the permanent place of residence to Ukraine and determination of the place of residence of the children with [Petitioner]"; (2) [t]o suspend execution of decision of Leninskiy district court of Zaporizhya city dated July 07, 2010 till termination of the cassation proceedings of the case"; (3) "[t]o demand the mentioned civil case from Leninskiy district court of Zaporizhya city"; and (4) "[t]o send the copies of the cassation appeal and the enclosed materials of the case to the persons who participate in the case[,] to explain their right to file an objection to cassation appeal till May 20, 2011."

Based on the above ruling, the nature of the future proceedings in the Ukraine courts was not altogether clear. As it related to the present petition, under Article 15 of the Convention: judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. The Court should also consider the "length of time it will take to obtain the required documentation." Hague International Child Abduction Convention; Text and Legal Analysis, Department of State, March 26, 1986, at 14-15. In the interest of comity, the Court gave considerable weight to the Ukraine court decisions in deciding whether the children were wrongfully removed and should therefore be returned to Petitioner; the Highest Specialized Court's decision is no different. On the other hand, the Court has an obligation under the Convention to make an expeditious decision. With these conflicting considerations in mind, effectiveness of this decision was stayed for 30 days to allow the parties the opportunity to further illuminate the status of the legal proceedings in the Ukraine, including the time it will take the courts in the Ukraine to resolve the pending proceedings.

Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) [Israel] [Habitual Residence]

In Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) the Eight Circuit reiterated the rule it established in Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir.2010) and Silverman v. Silverman, 38 F.3d 886, 897 (8^th Cir.2003) (en banc) that the factors relevant to the determination of habitual residence include "the settled purpose of the move from the new country from the child’s perspective....", rejecting the approach of the Ninth Circuit.


Michelle, a dual citizen of the United States and Israel, met Martin, on a visit to Israel in 2000. He was a dual citizen of Israel and Canada. Michelle moved from the United States to Israel with her two children. Martin and Michelle were married in a religious ceremony in Israel. Their son DJ was born in 2003. In 2005 Michelle was accepted in a doctoral program at Iowa State University, and Martin signed a document consenting to her traveling to Iowa with DJ "for as long as she is enrolled in her PhD studies." Martin characterizes the document as memorializing a mutual agreement that Michelle and DJ would return to Israel as soon as her studies ended. Michelle denied there was such an agreement, and only Martin signed it. The document did not specify what would happen after Michelle's studies ended. In August 2005 Michelle moved to Iowa with her older children and DJ, who was then two. Martin followed in October 2005, after closing his taxi business in Israel. Michelle filed for divorce in October 2007 although she did not serve Martin with any papers. Martin returned to Israel in February 2008. At that time he believed Michelle would soon follow him there with the children. Shortly after Martin left the United States, Michelle proceeded with the divorce and requested temporary custody of DJ. During divorce proceedings, Michelle revealed that she would return to Israel with DJ and her other children only if she could find work there in her field.


Martin brought an action in the district court for DJ's return to Israel under ICARA. The district found after trial that DJ habitually resided in the United States. It found DJ had "considerable connections with his current [Iowa] environment." At the time DJ was seven years old and had been living in Iowa since he was two. He had visited Israel once when he was three. DJ had finished one year of kindergarten in Iowa and had celebrated holidays with Michelle's family in Des Moines. In sum, the district court found that DJ had acclimated to Iowa. Regarding the intentions of DJ's parents, the district court found that the couple had intended to make Iowa DJ's habitual residence, at least during Michelle's studies, even though they planned to return to Israel eventually. Based on its findings it denied Martin's petition. The Eighth Circuit affirmed.


On appeal, Martin argued that the district court gave insufficient weight to the parties' intention to return to Israel after Michelle graduated. The Eight Circuit pointed out that in Barzilay, supra, it explained that "factors relevant to the determination of habitual residence [include] 'the settled purpose of the move from the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.' " Settled purpose "need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' " It concluded that from the perspective of the child, who had lived in Missouri for five years, the settled purpose of the family's move was to remain there permanently despite an agreement by the parents to move the whole family to Israel should either spouse return.  Here, the district court found that from DJ's perspective, the settled purpose of his relocation to Iowa was to reside there habitually. In reaching this decision, the court relied on Barzilay and a Third Circuit case discussing the element of  settled purpose, Whiting v. Krassner, 391 F.3d 540 (3rd Cir.2004). Whiting held  that settled purpose does not require an intention to stay in a new location  forever. Rather, one's "purpose while settled may be for a limited period," and education could prompt such a move.(quoting In re Bates, CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).


Martin argued that the district court gave too much weight to DJ's perspective in considering the move's "settled purpose" and too little to the Sterns' intent to return to Israel after Michelle finished her degree. He argued that the Court should focus on the parents' intention to return to Israel rather than on DJ's acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), a Ninth Circuit case that did not consider the settled purpose concept "very useful" which held, in contrast to its decisions in Barzilay and Silverman, that without "settled parental intent, courts should be slow to infer from [a child's] contacts that an earlier habitual residence has been abandoned." The Eighth Circuit rejected this approach, pointing out that the settled purpose of a child's move must be viewed from the child's perspective, and observing it had been rejected by the Sixth Circuit, which characterized it as having "made seemingly easy cases hard and reached results that are questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007). It held that the child's perspective should be paramount in construing this convention whose very purpose is to "protect children," and declined to adopt a framework that would contradict its own precedent and frustrate the Convention's goal of 'deter [ring] parents from crossing borders in search of a more sympathetic court.


The record here favored Iowa as DJ's habitual residence whether the Court emphasized DJ's perspective or that of his parents. The district court found that the parties' intent at the time of the move was to make Iowa DJ's habitual residence. It did not clearly err in doing so. The Court concluded that under the Hague Convention "the court must focus on the child, not the parents, and [must] examine past experience, not future intentions," Silverman, 338 F.3d at 898.

Mc Curdy v Shreve-McCurdy, 2011 WL 1457158 (E.D.Mich.) [Canada] [Habitual Residence]

In Mc Curdy v Shreve-McCurdy, 2011 WL 1457158 (E.D.Mich.) the court granted Brian McCurdy’s petition against Respondent Princess Shreve McCurdy for immediate return of the couple's minor child, B.M., to Canada. Brian was 43 years old. Princess was also 43 years old. Brian and Princess had two children together, Brian McCurdy, Jr., who was 18 years old and resided with his mother in Southfield, Michigan; and B.M., who was born in 2004 and was six years old. Princess also had an adult daughter named Lutece Shreve. Brian resided at 450 Superior, LaSalle, Ontario Canada N9H 0A3 ("the 450 Superior Residence"), with his sister, Linda McCurdy, and her minor son, LM. Brian had dual citizenship in the United States and Canada. Princess resided in Southfield, Michigan, along with Brian McCurdy, Jr. Princess was a licenced registered nurse in both Canada and Michigan. BJM was born in Canada in 2004. Following her birth, Brian and Princess resided together with BJM in LaSalle, Ontario Canada for a short period of time. At that time, they resided at the 450 Superior Residence, with Brian's sister Linda. Brian, Princess and BJM later moved to Detroit, Michigan, where they resided with Princess's sister Laura Lee and her husband, until August of 2005.

In August of 2005, the couple and BJM moved to Flatrock, Michigan. Brian and Princess were married on April 20, 2006. As of 2007, however, the couple's relationship was deteriorating. In July or August of 2007, the couple separated and Brian returned to LaSalle, Ontario Canada. Brian and Princess agreed that BJM would reside with Brian at the 450 Superior Residence and attend school in LaSalle the following year. At this time, Brian was still in the process of obtaining his masters degree at Michigan State University. In the fall of 2008, Brian had an internship position that required him to temporarily reside in California. In the fall of that same year, Princess's mother was diagnosed with terminal cancer. After the diagnosis, Princess cared for her ill mother and, as a result, was unable to care for BJM on a full-time basis. At that time, Brian, Princess, and Linda agreed that BJM would reside at the 450 Superior Residence in LaSalle and attend school in LaSalle. On October of 2008, Brian, Princess, and Linda executed a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of BJM and that BJM "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." That agreement further provided that Linda "shall have the authority to make inquiries and decisions concerning the health, education and welfare of the child. Specifically, the Aunt shall have the authority to enroll the child in school in LaSalle." The parties entered in to that written agreement so that Linda would be able to enroll BJM in school in LaSalle. Linda was able to enroll BJM in school in LaSalle. On November 3, 2008, BJM was registered in junior kindergarten at Sandwich West Public School in LaSalle, Ontario Canada. B.M. attended the remainder of that school year at Sandwich West Public School, while residing at the 450 Superior Residence. Princess's mother passed away in December of 2008. Once the school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan.

In September of 2009, B.M. returned to LaSalle. From September 8, 2009 to June 30,  2010, B.M. was registered in senior kindergarten at Sandwich West Public School in  Canada. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Towards the end of the 2009-2010 school year, Princess told Brian that she wanted B.M. to come live with her in Michigan and the couple argued about her request. Brian expressed that he wanted B.M. to remain with him during the school years, at least until the couple's older son graduated from high school. Brian wanted his son to be able to get through his senior year of high school without having to baby-sit and care for his sister while his mother was working. Although Brian understood that Princess wanted B.M. to come to Michigan to attend first grade at Laurus Academy, Brian did not agree or consent to that. In June, 2010, B.M. came to Michigan to stay with her mother. When B.M. left Canada for the summer, she did not take her personal belongings with her to Michigan. Her toys and the majority of her clothes remained in her bedroom at the 450  Superior Residence. Before leaving to visit her mother for the summer, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. In August of 2010, Princess called Brian and asked for B.M.'s vaccination records. Brian believed that Princess wanted those records so that she could enroll B.M. in first grade in Michigan and he did not give her the records. In August of 2010, Brian consulted a lawyer to advise him about his custody rights. B.M. returned to the 450 Superior Residence on September 3, 2010. From September  3, 2010 to September 7, 2010, B.M. was in Canada with Brian. On September 7, 2010, B.M. was registered in grade 1 at Sandwich West Public School in Canada. On September 7, 2010, Brian took B.M. to school for her first day of first grade at Sandwich West Public School. Later that evening, however, Princess came to the 450 Superior Residence and took B.M. back to Michigan without Brian's consent. On September 8, 2010, Princess registered B.M. in grade 1 at Laurus Academy in Southfield, Michigan. B.M. began attending Laurus Academy on September 8, 2010.

After Princess took B.M. to the United States on September 7, 2010, Brian sought legal advice on how to obtain a custody determination through the appropriate legal channels. On November 11, 2010, Princess brought B.M. back to Canada so that B.M. could receive medical treatment. Because the child was ill and could not return to school, and Princess was working full-time, Princess returned B.M. to the 450 Superior Residence and asked that Brian care for B.M. Princess asked that Brian return B.M. to her in Michigan on November 14, 2010, but Brian did not do so. On November 18, 2010, Brian filed an Application for Custody in the Ontario Court of Justice. As of November 21, 2010, B.M. was still in Canada with Brian, residing at the 450 Superior Residence. Princess and Brian McCurdy Jr. went to the 450 Superior Residence on November 21, 2010. At that time, Brian stated that he would not let Princess take B.M. to Michigan. Both Brian and Princess were upset and argued with each other. Linda, who was an attorney in Canada, was also present at the home and served Princess with legal documents from the custody action in the Ontario Court of Justice. Princess then left the house and returned to the United States without B.M. Princess read the documents that she was served with on November 21, 2010, and understood that Brian had initiated custody proceedings in Canada. On November 22, 2010, Brian re-enrolled B.M. at Sandwich West Public School, so that she could go back to school there. On November 24, 2010, Brian picked B.M. up from school and dropped her off at his sister's house, Cheryl McCurdy-Ducre, to play with B.M.'s cousins. On November 24, 2010, Princess traveled to LaSalle in order to get B.M. and bring her to the United States. Princess drove to Canada with her adult daughter, Lutece Shreve, her sister, Laura Lee, and a friend, Tammy Biddles. The group knew that B.M. was at Brian's sister's house and drove to the house. Because Princess knew that they would not let her in the house if she came to the door, Princess told her daughter Lutece to go in the house and get B.M. Lutece left the house with B.M., and brought B.M. to the car where Princess and the others were waiting. Neither Princess nor Lutece told Brian or his family members that they were taking B.M. from the house or that they were taking B.M. to the United States. Upon learning that Princess had taken B.M., Brian immediately contacted border control, to try to prevent Princess from taking B.M. across the United States-Canadian border. Brian also went to the LaSalle police station on November 24, 2010 and told the LaSalle police that B.M. had been removed from Canada by Princess without his consent. After returning to the United States with B.M. on November 24, 2010, Princess then stayed at a friend's house for a period of approximately two weeks and did not inform Brian where they were. From November 24, 2010 B.M. remained in Michigan with Princess and was attending Laurus Academy. On December 1, 2010, Princess initiated divorce and custody proceedings in the United States. Although she was aware that Brian had initiated custody proceedings in Canada in November, Princess signed an Affidavit stating that she had "no information"  regarding other custody proceedings concerning B.M. On December 8, 2010, Brian filed a Hague application in Canada. On March 11, 2011, Brian initiated this action.

The District Court observed that it was undisputed that Brian had custody rights and that Brian was exercising his custody rights. Thus, the Court had to determine whether Canada was B.M.'s habitual residence immediately prior to the removal. Brian alleged that B.M. was wrongfully removed from Canada on September 7, 2010, and that she had been wrongfully retained by Princess in the United States since that time. Thus, the Court had to determine B.M.'s habitual residence immediately prior to her removal on September 7, 2010. It found that Brian had established by a preponderance of the evidence that Canada was B.M.'s habitual residence immediately prior to her removal on September 7, 2010. B.M. was born in Canada. In the fall of 2008, Brian, Princess, and Linda all verbally agreed that B.M. would reside at the 450 Superior Residence in LaSalle during the school year and attend school there. In addition, in October of 2008, Brian, Princess, and Linda formalized that agreement by executing a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of B.M. and that B.M. "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." B.M. was enrolled in junior kindergarten at Sandwich West Public School in LaSalle on November 3, 2008, and attended the remainder of the 2008-2009 school year there, while residing at the 450 Superior Residence. Once the 2008-2009 school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan. That same plan was followed for the 2009-2010 school year. In September of 2009, B.M. returned to LaSalle to live with Brian and attend school at Sandwich West Public School. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Thus, for B.M.'s first two years of school, she attended school in Canada while residing with her father at the 450 Superior Residence during the school years and spent only the summer months visiting her mother in the United States. Respondent had stipulated that Canada was B.M.'s habitual residence as of June, 2010. After the end of her senior kindergarten school year, in June, 2010, B.M. came to Michigan to stay with her mother for the summer--as she had done the two previous years. When B.M. left Canada for the summer, she did not take her personal belongings with her. That is, her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Moreover, while living in Canada, B.M. participated in extracurricular activities such as cheerleading. Before leaving to visit her mother for the summer in June, 2010, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. Based on the evidence presented, the Court found that Canada was B.M.'s habitual residence prior to her removal on September 7, 2010, and that the removal was wrongful under the Hague Convention. (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). The Court found that Princess had not presented any evidence to establish that Brian consented by virtue of an action or statement with requisite formality, such as testimony in a judicial proceeding. To the contrary, Brian initiated legal proceedings in both Canada and the United States in order to retain custody of B.M. Moreover, although the couple had previously executed a written agreement that B.M. would attend school in Canada while residing at the 450 Superior Residence, there was no evidence to establish that the couple executed any subsequent written agreements regarding any changes in custody, schools, or B.M.'s primary residence. There was no evidence to establish that Brian signed any written renunciation of rights to custody. Nor was there any evidence that Brian consented or had a "consistent attitude of acquiescence over a significant period of time."

Brian did not consent or acquiesce to the removal and retention of B.M. In Respondent's Answer she asserted as an affirmative defense, that "[e]quitable estoppel bars the Father from relief in this cause of action." The Court noted that the case law in the Sixth Circuit reflects that if a Petitioner establishes that  removal or retention was wrongful, "the child must be returned unless" the defendant
can establish one of the narrow defenses that are expressly provided for in the Hague Convention. Friedrich, 78 F.3d at 1067. "Equitable estoppel" is simply not one of the narrow defenses set forth in the Hague Convention. Respondent had not supplied the Court with any legal authority to show that the Court had the authority to decline to order the child returned based on a theory of equitable estoppel. Accordingly, the Court rejected this proffered defense as a matter of law.

Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) [Germany] [Full Faith and Credit] [Well-Settled in New Enviorment]

In Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) on July 17, 2007, Mr. Muhlenkamp filed his petition for return. Also in the spring of 2007, Mr. Muhlenkamp began legal proceedings in Germany to regain custody of E.M. Apparently, without any notice to Ms. Blizzard or opportunity to defend herself. The Bayreuth Local Court entered a judgment finding Ms. Blizzard "wrongfully removed" E.M. from Germany to the United States based on a "plausible" showing of facts by Mr. Muhlenkamp. E.M. was born to Mr. Muhlenkamp and Ms. Blizzard on April 29, 2004, in Duisburg, Germany. Shortly thereafter, the parties obtained a U.S. birth certificate, a U.S. passport, and a U.S. social security number, all for E.M. The parties repeatedly discussed an eventual relocation to the United States. Mr. Muhlenkamp and Ms. Blizzard married on June 8, 2005, in Duisburg. Mr. Muhlenkamp was a musician and a citizen of Germany. Ms. Blizzard was an academic professor, a born citizen of the United States, and later became a resident of Germany, where she was a resident until June 2006. Mr. Muhlenkamp, Ms. Blizzard, and E.M. moved to Bayreuth, Germany, in August or September of 2005. At some point Ms. Blizzard's mother became ill. In order to receive care, Ms. Blizzard's mother moved from Germany to Mesa, Arizona, in January 2006. On February 22, 2006, Ms. Blizzard drafted a permission letter allowing her to travel with E.M. to Mesa, Arizona, from February 25, 2006, to March 20, 2006, which Mr. Muhlenkamp signed and was notarized. During this period, Ms. Blizzard and E.M. visited Ms. Blizzard's mother, who was in declining health, in Arizona at the address contained in the consent letter. In the spring of 2006 Ms. Blizzard was also focused on finding a career position outside of Germany. Her two-year term as a professor at a university in Bayreuth was to expire soon and, under local German law, Ms. Blizzard could not continue employment in the Bayreuth area. Ms. Blizzard explored new positions in a number of countries, including the United States. In late April and early May of 2006, Ms. Blizzard went alone to Spokane, Washington, for a job interview at Spokane Falls Community College. Upon arriving at the train station in Frankfurt, Germany, on May 1, 2006, for her final train leg to Beyreuth, Ms. Blizzard called Mr. Muhlenkamp to inform him she had arrived a day early. During this phone call, Mr. Muhlenkamp told Ms. Blizzard that he wished to separate from her. When Ms. Blizzard returned from the Spokane Falls interview, Mr. Muhlenkamp moved out of their shared apartment into his own apartment. He expressed no desire to visit Ms. Blizzard or to provide care for E.M. between May 1 and June 12, 2006. E.M. remained in the care of Ms. Blizzard and continued full-time daycare until June 12, 2006. On or about May 23, 2006, Ms. Blizzard informed Mr. Muhlenkamp that Spokane Falls Community College had offered her a job which he understood she would accept. Mr. Muhlenkamp then signed a letter terminating the lease on the marital apartment. On May 5, 2006, Ms. Blizzard drafted a permission letter to allow her "to travel internationally and remain abroad indefinitely with [E.M.]," which Mr. Muhlenkamp signed and was notarized. On June 7, 2006, at Mr. Muhlenkamp's request, Mr. Muhlenkamp and Ms. Blizzard met with Hubert Wattenbach, a social worker employed by the city of Bayreuth. Mr. Wattenbach testified that Mr. Muhlenkamp was concerned whether E.M. would be returned to him if Ms. Blizzard died while living with E.M. in the United States. Therefore, as of June 7, 2006, Mr. Muhlenkamp understood E.M. was to relocate to the United States because her mother, Ms. Blizzard, had employment in the United States. On June 12, 2006, Ms. Blizzard left with E.M. for the United States without any prior notice to Mr. Muhlenkamp. After arriving in the United States, Ms. Blizzard had her belongings shipped to her. When Ms. Blizzard and E.M. arrived in Phoenix, Arizona, Ms. Blizzard attempted to call Mr. Muhlenkamp several times in order to tell him their whereabouts, finally connecting with him on June 14, 2006, after 25 phone calls. During the phone call, Ms. Blizzard impressed upon Mr. Muhlenkamp that she would return to Germany within two weeks. In an email sent to Ms. Blizzard on June 16, 2006, Mr. Muhlenkamp expressed displeasure that Ms. Blizzard had taken E.M. to the United States without his knowledge. Mr. Muhlenkamp felt he had lost two weeks of time with E.M. prior to her final departure for the United States with Ms. Blizzard and pleaded with Ms. Blizzard, "please promise me that you will not just  leave [E.M.] in America." On June 22, 2006, Mr. Muhlenkamp sent another email to
Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with
E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court found that Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany under German law. At some point in August or September of 2006, Ms. Blizzard moved to Spokane, Washington, with E.M., where they resided since.

The District Court observed that in determining the appropriate location of a child under the Hague Convention, the threshold issue is whether the removal or retention of the child was wrongful. Here, the Bayreuth Local Court may have superseded the District Court in its determination that Ms. Blizzard wrongfully removed E.M. Thus, the Court was confronted with the question of whether the Court must respect the Bayreuth Local Court's decision and enter an order compelling the return of E.M. It noted thta United States courts are to give full faith and credit "to the judgment of any other ... court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." 42 U.S.C. 11603(g). The Bayreuth Local Court entered an order and "Certificate of Wrongfulness" declaring the removal of E.M. was "wrongful" within the meaning of the Hague Convention. Article 15 of the Hague Convention allows: The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Hague Conv. art. 15. Here, the question of the wrongfulness of E.M.'s detention had already been decided by the Bayreuth Local Court. Ahough the typical procedure under Article 15 would be for the District Court to request a determination of wrongfulness by a German court, because the Bayreuth Local Court had already made a determination, the Court had to determine whether to give the decision full faith and credit under ICARA, 42 U.S.C. 11603(g). The Court found that several concerns arose from the Bayreuth Local Court's decision. First, Ms. Blizzard never received notice of this proceeding , nor did the Bayreuth Local Court or Mr. Muhlenkamp ever attempt to notify Ms. Blizzard of the custody proceeding and Hague Convention issue. Second, the Bayreuth Local Court's requisite level of burden of proof was below the standard mandated by ICARA and the Hague Convention. That court simply stated that Mr. Muhlenkamp had "shown plausibly by submission of an affidavit dated October 18, 2006, and the notarized revocation of travel permission dated August 14, 2006[sic] that he has joint right of custody of [E.M.]," and therefore the court made a finding of "wrongfulness" pursuant to the Hague Convention. However, the requisite burden of proof is more than "plausible"; a petitioner must "establish by a preponderance of the evidence" the child  was wrongfully removed. 42 U.S.C. 11603(e)(1)(a). Because no notice was made to Ms. Blizzard of the proceeding and the Bayreuth Local Court applied a burden of proof substantially less then the requisite burden, the District Court did not give full faith and credit to the Bayreuth Local Court decision.

The Court found that Removal of E.M. from Germany occurred on June 12, 2006. Retention, if wrongful, occurred after the two-week window Mr. Muhlenkamp believed Ms. Blizzard would be in the United States. Thus, retention occurred on June 26, 2006. In determining the location of Habitual Residence the Court observed that although E.M. possessed a U.S. social security card, U.S. birth certificate, and U.S. passport prior to the removal, E.M. was born and lived in Germany her entire life. Therefore, at the time of removal, the Court concluded E.M.'s habitual residence was in Germany, though it is certain that the parties agreed that Ms. Blizzard was relocating to the United States with E.M. to begin her job in Spokane, Washington.

The Court noted that under the Hague Convention, rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Conv. art. 5. German law gives both parents equal custody of a child.(citing Burgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, ss 1621 P 1, 1627;) "The violation of a single custody right suffices to make removal of a child wrongful." Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir.2004) "Rights of access do not constitute rights within the meaning of the Hague Convention...." Croll v. Croll, 229 F.3d 133, 135 (2d Cir.2000). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Conv. art. 5(b). This case presented the question of whether Mr. Muhlenkamp retained merely a right of access, rather than rights of custody, when he agreed to let Ms. Blizzard take E.M. to the United States. On May 5, 2006, Mr. Muhlenkamp signed a general letter written by Ms. Blizzard giving his "express permission for Allison Blizzard to travel internationally and remain abroad indefinitely with [E.M.]." Mr. Muhlenkamp and Ms. Blizzard disagreed as to what "indefinitely" meant. From the facts, the court determined that Mr. Muhlenkamp retained the right to determine custody rights, including parental-decision making roles and the right of visitation, in Germany. For this reason, the Court concluded Mr. Muhlenkamp possessed rights of custody at the time of removal. Mr. Muhlenkamp did not know of Ms. Blizzard's intention on June 12, 2006, the time of removal, and therefore did not exercise his custodial right at the time of removal. However, when Mr. Muhlenkamp became aware of Ms. Blizzard's intent, he exercised his rights and did not acquiesce to the retention of E.M. in the United States. Therefore, the Court concluded wrongful retention occurred on June 26, 2006.

Mr. Muhlenkamp filed his petition on July 17, 2007. Wrongful retention began on June 26, 2006. The Court concluded the filing occurred outside the one-year limitation. It observed that the Ninth Circuit has stated: The question whether a child is in some sense "settled" in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life there. Further, attempting to make the standard more rigorous might actually make matters worse, as it could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit-such as having the child profess allegiance to the new sovereign. Mozes, 239 F.3d at 1079. The Ninth Circuit provides a dim light as to what factors are pertinent: "[S]ome courts regard the question whether a child is doing well
in school, has friends, and so on, as more straightforward and objective...." Here, E.M. was performing at two to three age levels above her own. E.M. also was well-liked and had a strong core of friends. Ms. Blizzard routinely took E.M. to community cultural events. E.M. had many relatives in the Northwest and in Arizona, where they often spent holidays. Thus, the Court found E.M. had settled. Because E.M. had settled, the one-year limitation exception applied. Therefore, even though the Court found Ms. Blizzard wrongfully retained E.M. outside of Germany, the Court concluded E.M. shall remain with Ms. Blizzard in the United States.

The District Court observed that while the ICARA allows a court to impose provisional remedies "to protect the well-being of the child involved or to prevent the child's further removal or concealment," IRACA only establishes the authority prior to "final disposition of the petition." 42 U.S.C. 11604 Thus, the Court did not enter a temporary order on custody.