Tucker v Ellenby, 2011 WL 5361154 (S.D.Fla.) [Belize] [Yunger and Colorado River Abstention]

In Tucker v Ellenby, 2011 WL 5361154 (S.D.Fla.) Petitioner claimed that Respondent wrongfully removed their two-year old son, Mateo Robinson Tucker, from his habitual residence of Belize and was wrongfully retaining the child in the United States, without his consent and in violation of his custody rights over the child. Prior to the filing of the Petition, on March 29, 2011, Respondent filed a petition for dissolution of marriage in the Circuit Court of the 11th Judicial Circuit in Miami-Dade County, Florida, seeking in part sole parental custody of the child. The case was pending until very recently. Parental time-sharing was ordered but final determinations on dissolution and custody have not yet been made. It was undisputed that Petitioner did not ask the state court to order that the child be returned to Belize based on allegations of wrongful removal and retention pursuant to the Hague Convention and ICARA or on any other basis.
Respondent argued that the District Court should abstain from deciding the Petition and allow the issues raised therein to be decided in the state custody proceeding pursuant to the Younger and Colorado River abstention doctrines. The District Court rejected her argument. It observed that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.2003) (citing Colorado River, 424 U.S. at 817)). "Virtually" is not "absolutely," however, and in exceptional cases federal courts may and should withhold equitablerelief to avoid interference in state proceedings. "The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). This doctrine is an exception to the general rule of nonabstention and derives from "the vital consideration of comity between the state and national governments." 31 Foster Children, 329 F.3d at 1274 (internal citation omitted). Under Younger, abstention is warranted when (1) there is an ongoing state judicial proceeding with which the federal proceeding would interfere; (2) the state court proceeding implicates important state court interests; and (3) the state court proceeding provides the petitioner with an adequate opportunity to raise his claims. Yang v. Tsui, 416 F.3d 199, 202 (3d Cir.2005).
The District Court concluded that Respondent failed to demonstrate that its adjudication of the Hague Convention claim would interfere with the ongoing state custody proceeding, an essential showing under the first Younger factor. In deciding this issue, it looked to the relief requested and the effect it would have on the state proceeding. The adjudication of the issues raised in the Petition--whether the child's removal from Belize and his retention in this country were wrongful and, if so, whether he should be returned to Belize--would not affect the custody determination that would be made in state court pursuant to state family law. In Yang, because the Hague Convention had not been raised in the state custody proceeding, the court concluded that the federal court's adjudication of a Hague Convention petition would not interfere with the state action. As in Yang, in this case the Hague Convention was not raised in the state proceeding. Because there was no Hague Convention claim pending in the state proceeding, the adjudication of the Petition would not interfere with the state proceeding. If a custody proceeding does not have a Hague Convention claim before it, an adjudication of such a claim by the federal court would not constitute interference." The second Younger factor, whether the state proceeding implicates important state court interests, likewise did not support abstention. It could not be disputed that the
State of Florida has a strong interest in domestic relations and custody matters, but
they are not issues in the case. The Petition sought the return of the child "under the
Hague Convention and ICARA, which is a federal statutory matter." If a federal court abstained from adjudicating a Hague Convention petition simply because child custody was being disputed in state court, the Hague Convention and ICARA would be rendered meaningless. Finally, Respondent failed to establish the third Younger factor for abstention. Although the state court has jurisdiction to entertain a Hague Convention petition, Petitioner did not raise such a claim in the state proceeding. He chose instead to file the Petition in federal court. It was unlikely, therefore, that Petitioner would have an adequate opportunity to raise his Hague Convention claims in the state forum. Because Respondent failed to meet the Younger requirements for abstention, the court denied her motion on that ground.
Respondent also asked the Court to abstain from adjudicating the merits of the Petition under the Colorado River abstention doctrine. This doctrine allows abstention by a federal court in favor of a parallel state proceeding based on "considerations of '(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' " Colorado River, 424 U.S. at 817. Abstention from federal jurisdiction is the exception, however, not the rule. Lops, 140 F.3d at 942. When a parallel state court proceeding exists, the Supreme Court has outlined six factors to consider in determining whether to abstain and dismiss a federal action: (1) whether one of the courts has assumed jurisdiction over any property in issue; (2) the inconvenience of the federal forum; (3) the potential for piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal or state law will be applied; and (6) the adequacy of each forum to protect the parties' rights. No one factor is per se determinative; how each factor is weighed depends on the facts of each case. When on balance the factors weigh against abstention, the federal court should
proceed notwithstanding the existence of the a parallel state proceeding. The Court first had to determine whether the concurrent state and federal cases were in fact
parallel proceedings. The cases need not involve identical parties, issues, and requests
for relief. Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1329-30
(11th Cir.2004). Rather, they must "involve substantially the same parties and
substantially the same issues." If the cases are not parallel, the Colorado
River doctrine does not apply. The Court found that this threshold test had not been met. Arguably the parties were not substantially the same. Petitioner was asserting a wrongful retention claim against the Ellenbys in federal court whereas neither of the Ellenbys was a party to the divorce and custody proceeding in state court. Although the relief requested in federal court was the return of the child to Belize, which based on the facts of the case was directed more toward Respondent than her parents who allegedly were assisting in the wrongful retention of the child, the Ellenbys were nevertheless subject to this Court's jurisdiction, once properly invoked, under the Hague Convention. More significant to the determination was the fact that the issues were not substantially similar. The subject matter of the two cases was decidedly different. The Court could not decide issues of custody, only which jurisdiction should properly determine custody. And the state court cannot decide whether the child should be returned to Belize. The fact that the same evidence could be used in both proceedings does not mean the issues are necessarily substantially similar. Even assuming the existence of a parallel state proceeding, the Court found abstention under Colorado River inappropriate. It considered all of the factors and found that they strongly militated against abstention under the Colorado River doctrine. Accordingly, Respondent's motion was denied on this basis.

Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) [Denmark] [Habitual Residence] [Wishes of the Child defense]

In Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) the District Court granted the father’s petition under the Hague Convention for the return of his eight-year-old daughter to Denmark, which it found was the father's residence, the daughter's habitual residence, and the situs of the marriage, the divorce, and the creation and enforcement of the custody rights at issue.
Eight-year-old D.S.D. lived in Denmark since infancy. Her parents, Peter Dalsgaard and Denise Montoya, were divorcing, in Denmark. The parents shared joint custody of D.S.D., and under Danish law parents with joint custody must each consent to a child's remaining abroad. A March, 2011, agreement signed by both parents allowed D.S.D. to visit Montoya, who moved to the United States after the separation, from June 25, 2011, until August 1, 2011. On August 1st Dalsgaard flew to Tampa, Florida, to accompany his daughter during her return to Denmark in
accord both with the agreement and with Danish law. D.S.D. refused to return with her father; the preponderant evidence suggests Montoya and her family assented to, and perhaps fueled and encouraged, D.S.D.'s resistence. Dalsgaard returned to Denmark and gained full temporary custody of D.S.D. from the pertinent Danish authority. On September 28, 2011, Dalsgaard petitioned the District Court for D.S.D's return to Denmark under the Hague Convention on the Civil Aspects of International Child Abduction. After a hearing the court orally ordered D.S.D. returned to Dalsgaard and to Denmark on Tuesday, October 25, 2011.
Montoya exerted no effort arguing that D.S.D.'s "habitual residence" is the United States. Nor could Montoya argue with any success that no retention occurred. "[T]he term 'retention' is meant to cover the circumstances where a child has been prevented from returning to h[er] usual family and social environment." Pielage, 516 F.3d at 1288. A "retention" began when without Dalsgaard's consent Montoya kept D.S.D. in the United States and away from "her usual family and social environment" after August 1st. Montoya protested that no "intentional" or "overt" retention occurred because she merely acquiesced to D.S.D.'s desire to remain. Although whether the retention is intentional is not controlling under the Convention, Montoya signed an agreement under which her eight-year-old was due back in Denmark on August 1st. The record was devoid of evidence that Montoya insisted or even urged D.S.D. to return to Denmark--certainly nothing suggests that Montoya attempted to enforce the agreement with the persistence, authority, and persuasion typifying the responsible parent of an eight-yearold. The Convention grants Montoya no presumption of neutral (let alone pristine) motivation. The retention that began August 2nd was "wrongful" under the Convention. A retention is not "wrongful" because of an abductor's intentions; a retention is "wrongful" because of a violation of a custody right in the child's habitual residence. D.S.D.'s habitual residence is Denmark, and the question is whether Montoya retained D .S.D. in contravention of Danish law. Under Chapter 1, Section 3 of the Danish Act on Parental Responsibility: (1) If the parents have joint custody, they must agree on significant decisions regarding the child. The parent with whom the child lives can make decisions about general day-to-day matters relating to the child, including where in Denmark the child will have his or her habitual place of residence. (2) If the parents have joint custody but disagree about the custody, they both have to give their consent for the child to leave the country.... They also have
to give their consent if the child's stay abroad ... is extended beyond the agreed, presumed, or specified duration, unless an agreement has been made according to section 17(1)....Under Chapter 3, Section 17, "(1) If the parents have joint custody and disagree about which parent the child should live with, the court will decide the matter.... (2) The court can change an agreement or a decision about a child's place of residence." A letter from the Department of Family Affairs to the State Department confirmed that under Danish law "[b]oth parents must [ ] consent if a child's stay in a foreign country is extended beyond what is decided or agreed." see Familiestyrelsen, Legislation and Rules,
http://www.familiestyrelsen.dk/en/englishversion/legislationandrules/ (last visited Oct. 22, 2011); Hague Convention, Art. 14 (permitting direct judicial notice of the law of the habitual residence).
Dalsgaard and Montoya's March, 2011, agreement declared joint custody and
provided that D.S.D. will visit the United States for "specified duration[s]." Unless a Danish court orders otherwise, Danish law required that Dalsgaard consent before D.S.D. remained outside Denmark for longer than the "agreed, presumed, [ ] specified duration."
The Court found that Montoya's retention of D.S.D. violated Danish law. A Danish state administration granted Dalsgaard temporary full custody, which further proved that Montoya retained D.S.D. in violation of the law of D.S.D.'s habitual residence. Also, Dalsgaard applied for temporary full custody on August 2nd, the day that Montoya's wrongful retention of D.S.D. began. Not that Montoya challenged the point, but the order confirmed that Dalsgaard unquestionably exercised his custody rights when the wrongful retention began.
Montoya claimed that Dalsgaard consented to the retention and that D.S.D. "objects to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of [her] views." Montoya's argument that Dalsgaard consented to the retention required no attention because the only evidence of consent under the Hague Convention was the evidence that fails to show consent under Danish law, namely, the "re-assessment" provision of the March, 2011, agreement. The one difference is the burden of proof; under Article 13 of the Hague Convention and ICARA, Montoya had to demonstrate consent by a preponderance of the evidence. No evidence showed that Dalsgaard consented under Danish law to D.S.D.'s move to
the United States. That left D.S.D.'s state of mind and "degree of maturity." The burden was again Montoya's by a preponderance of the evidence, though even if D.S.D. was mature and objected to return, application of the exception was not mandatory. The Court indicated that before the evidentiary hearing, an hour and twenty minute in camera interview of D.S.D. transpired; no lawyers and no parents. Although a vibrant, cheerful, and delightful guest in chambers, D.S .D. when questioned had little to say about her parents' dispute. D.S.D. expressed in head nods and one-word sentences a preference to remain in the United States. Her reticent and laconic responses (she had plenty to say about other matters) left the depth and sophistication of her conviction, and the maturity behind her conviction, highly doubtful. Contributing to this doubt, Montoya conceded that D.S.D. was "in a lot of turmoil right now" and "has to digest a lot of things." Montoya admitted also that D.S.D.'s desire to
remain in the United States wavered. Dalsgaard asserted that D.S.D.'s preference to remain in the United States was the product of Montoya and her family's influence. Montoya denied that D.S.D. experienced untoward manipulation. Based on her testimony, however, Montoya conspicuously failed to explain to D.S.D. that D.S.D. was supposed to return to Dalsgaard on August 1st. The evidence suggested that Montoya allowed a belief to fester in D.S.D. that returning to Denmark betrayed Montoya. The point was, even if Montoya inflicted no "undue" influence, D.S.D. behaved as if she believes she must elect between her parents, and her unenviable position obviously agonized her. Head nods and monosyllables in favor of the status quo--an eight-year-old's best effort at a balance of terror–was the closest D.S.D. can get to appearing to favor neither parent. The sentiments of a perspicacious district judge addressing a Hague Convention petition for a ten-year-old boy resonate. D.S.D. was not afraid of the girlfriend, who in fact treated D.S.D. well by D.S.D.'s own account.
The Court concluded that D.S.D.'s distressing story fully justified an order to return.

Walker v Walker, 2011 WL 5008533 (N.D.Ill.) [Australia] [Habitual Residence] [Abandonment and Consent]

In Walker v Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the return of his children to Australia who he claimed were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children. At the evidentiary hearing the Petitioner testified, and Respondent moved for a directed verdict. The court found based on its observations in court of Petitioner's testimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. The Court found that Respondent's testimony was entirely credible.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States. The Respondent decided to permanently remain in the United States with the Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children. Petitioner did not visit the Children after he left the United States in July 2010 and before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a parent could establish a habitual residence of a child by the "wrongful removal and sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.

Rowe v Vargason, 2011 WL 4529341 (D. Minn.) [Australia] [Grave Risk of Harm] [Well Settled in New Environment] [Conditional order]

In Rowe v Vargason, 2011 WL 4529341 (D. Minn.) Petitioner, Kim William Rowe, filed a Petition for Return of Child to Australia on July 20, 2011. Petitioner and Respondent, Tammie Joan Vargason, were both citizens of Australia.
The parties met in Australia in 2005, when Respondent was 17 years old and the Petitioner was 30 years old. TJR was born in November 2006. In early 2007, they moved to Brisbane to allow Petitioner to find work different work. Petitioner found work but testified he was fired after a couple of weeks because Respondent was needy and would constantly call him at work and demand that he come home. Respondent testified that Petitioner was fired from his job because he repeatedly failed to go to work. When TJR was approximately three or four months old, Respondent began to engage in prostitution. Petitioner testified that it was Respondent's idea to become a prostitute, and that she placed an ad in the paper, announcing her services. Petitioner claimed that he did not want Respondent to engage in this activity, but that Respondent insisted. To ensure her safety, Petitioner testified that he went to "appointments" with Respondent, and waited for Respondent in the car with TJR. Respondent testified that Petitioner forced her into prostitution, that he placed the ads, collected the money and made all appointments. Respondent further testified that after just a few weeks, she arranged to move back into her mother's home so she would not have to prostitute herself anymore.
The parties returned to Dalby, where the parties were able to get their own apartment, next to Respondent's mother. A police report from October 2007 provided that there was a domestic disturbance involving the parties, and that Respondent told the police that Petitioner was domineering and controlling, and that he previously forced her into prostitution. Respondent also told the police that Petitioner would take Respondent's money, and would control what money she would receive. By May 2008, their relationship had completely deteriorated. On May 13, 2008, Petitioner came home to find that Respondent was talking with another man, her now husband, over the internet. An argument ensued, resulting in Petitioner being stabbed with a knife by Respondent. Petitioner claimed that they were arguing, and that Petitioner blocked the door to prevent Respondent from leaving with TJR. Petitioner claimed that Respondent then retrieved the kitchen knife to get Petitioner away from the door, and that during a struggle, Petitioner was stabbed. Respondent claimed that Petitioner got the knife from the kitchen and was threatening to kill her, but that she was able to get the knife away from Petitioner, and that Petitioner was stabbed during a struggle.
An Intervention Order was entered that prohibited contact. At that time, Petitioner agreed that Respondent would have custody of TJR, and that Respondent and TJR would live with Respondent's mother, as long as her mother did not drink any alcohol, as there were concerns the mother was an alcoholic. Because Respondent's mother began to drink, Respondent and TJR moved to Darwin, Australia, to live with Respondent's father. She did not notify Petitioner of this move.
Petitioner was able to locate Respondent, and the two began talking with each
other, despite the Intervention Order that prohibited such contact. Respondent
eventually moved to Morewell, Australia, after her current husband, Andrew Vargason
moved to Australia to be with Respondent. During this time, Petitioner did have not any
contact with TJR. Approximately one year later, Petitioner moved to Perth,
because he had lost his job and was unable to find another. Petitioner testified that he was also depressed, as he learned that Andrew Vargason, Respondent's husband, wanted to be TJR's father, and that he did not want Petitioner to have any contact with TJR. Petitioner testified that during this time period, he tried to commit suicide.
Petitioner testified that he tried to get the Intervention Order modified, but was
unsuccessful. Respondent testified that she received a call from Petitioner's mother, Christine Rowe, on December 19, 2009, during which Respondent was told that Petitioner was doing drugs and was planning on kidnaping TJR. In an application for an Intervention Order, Respondent made the following allegations: 1) that Petitioner's mother called and told her that Petitioner and his new girlfriend were planning on kidnaping TJR and that Petitioner was doing drugs; 2) "[Petitioner] found out I was talking to someone (my new husband) on the internet he yelled and choked me then pulled out a kitchen knife threatening to kill me while he was yelling at me I struggled to get the knife off him, he then lunged at me, it cut him (a small cut) I threw the knife, picked up my baby and ran to my mother's house down the street where I had the police called"; 3) Petitioner had raped her three times in 2006-07 in the State of Queensland; 4) Petitioner had been with girls under the age of 15 and that he is a pedophile; 5) Petitioner had forcibly shaken their son; 6) Petitioner was caught masturbating, while their son lay next to him on the bed.
The hearing on Respondent's application was held on January 8, 2010. Petitioner did not attend the hearing, although he did receive notice. An Intervention Order was entered on that date, prohibiting all contact between Petitioner and Respondent and TJR through January 7, 2012. The Order noted that Petitioner did not agree to the Order being made. After the January 2010 Intervention Order was entered, Petitioner filed a passport alert with the Australian passport authority. Shortly thereafter, Respondent filed an application for a passport for TJR. Around this time, Respondent had given birth to a daughter, and in her passport application indicated that she and her husband wanted to travel to Minnesota to visit her husband's grandmother. Respondent noted in the application that she planned on being in the United States for three months. Notwithstanding the alert filed by Petitioner, Respondent was able to obtain a passport for TJR without Petitioner's consent, under the "special circumstances" exception due to the allegations of abuse and the Intervention Order.
Respondent, with her husband and both children, left Australia on July 19, 2010.
After learning that Respondent and TJR were in the United States, and that
Respondent did not plan to return to Australia, Petitioner instituted proceedings for the
return of TJR with the Central Authority in Australia, which lead to the Petition being
filed electronically on July 19, 2011 and entered into the court docketing system on July
20, 2011.
Petitioner asserted that at the time of removal, he had rights of custody to TJR and was exercising or attempting to exercise those rights, citing to the Australia Family Law Act 1975 (Commonwealth) ss 60CA, 60CC and the Family Court Act of 1997 (State of Western Australia) 66A, 70A and 66C. Petitioner also submitted an affidavit of applicable law in accordance with the Hague Convention, executed by a lawyer of the Australian Capital Territory Supreme Court, which stated that section 69 of the Family Court Act 1997(WA) and 111B(4)(a) of the Family Law Act of 1975 is that "both parents of a child retain joint parental responsibility under Australian law and 'rights of custody' for purposes of the Convention for their child until their child reaches the age of 18 years, unless parental responsibility has expressly been taken away by an order of the court."
The Court reviewed the Intervention Order dated January 8, 2010, and
found that the Order in no way addressed parental responsibility or rights of custody. It was temporary in nature, and it responded only to specific threats alleged by the
Respondent, that were unchallenged by Petitioner at the time of issuance. Accordingly,
the Court found that the Intervention Order did not terminate Petitioner's rights of
custody to TJR.
The Court declined to find that in issuing a passport to TJR, the Australian
passport authority made a de facto determination as to Petitioner's parental rights for
purposes of a claim under the Hague Convention. There was nothing in the record
to support Respondent's assertions that the passport authority made any de facto
custody determinations for purposes of a claim under the Hague Convention.
Respondent argued that even if Petitioner did have rights of custody under the
Convention that were breached, Petitioner did not plead that he was exercising those
rights at the time and had not plead that he had or sought regular contact with TJR.
The Court observed that in determining whether a petitioner is exercising rights of custody for purposes of a claim under the Hague Convention, other courts have interpreted "exercise" very broadly. Respondent admitted that Petitioner provided support for TJR on at least one occasion. Petitioner testified that he provided regular support payments, and had made sporadic attempts to contact Respondent over the last two years. Petitioner filed a passport alert, to prevent the Respondent from obtaining a passport for TJR without his consent. While these attempts did not establish regular contact with TJR, they demonstrated that Petitioner did not clearly and unequivocally abandon his custody rights to TJR. The Court found that for purposes of Petitioner's claim under the Hague Convention, Petitioner had custody rights that he was attempting to exercise at the time, Respondent removed TJR from Australia, and that such removal was in breach of Petitioner's rights. Accordingly, the Petitioner established a prima facie claim for return of TJR to Australia.
Respondent argued that there was a grave risk that TJR's return to Australia would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Respondent claimed that Petitioner physically and psychologically abused her when they were together. Respondent testified that early in their relationship, Petitioner raped her on three occasions; once when she was three months pregnant with TJR. Respondent further alleged that Petitioner was very controlling; that he would isolate her from family and friends, and that he would control the money she received from the government, and that he forced her into prostitution. Respondent also testified that Petitioner abused her emotionally by telling her she was fat or that she looked too old. Respondent also claimed that Petitioner choked her and threatened to kill her with a knife. Respondent further alleged that on three occasions, she witnessed Petitioner shake TJR. Respondent further testified that Petitioner had inappropriate contact with minor girls on numerous occasions, and that she believed Petitioner sought out 11 year old prostitutes when he told Respondent he was going out to get food for TJR.
In support of her claim that TJR would face a grave risk of harm if returned to
Australia, Respondent presented expert testimony from Dr. Jeffrey Edleson and also offered an expert opinion from Dr. David Matthews. In response to questions from the Court, both Dr. Edleson and Dr. Matthews conceded that they did not have complete information before them concerning the abuse inflicted by Respondent's current husband on both Respondent and TJR. Respondent did not dispute that she suffered serious abuse at the hands of her husband, and evidence had been submitted showing that she had a protection order against him. Respondent testified to the fact that her husband had physically abused her, and that for a time, she and TJR could no longer live in the home she shared with her husband and her in-laws. Because neither expert had complete information before them concerning the abuse by Respondent's husband, Respondent's new relationship, and TJR's current living arrangements, the Court found their expert opinions unreliable.
Respondent's sister-in-law, Ashlee Fairbanks-Vargason, testified that she witnessed Respondent's husband's abuse towards Respondent and her children. She said she witnessed both TJR and his younger sister being injured by Andrew Vargason and that on occasion, Respondent would vent her frustration on TJR. One evening, Andrew Vargason had hit TJR with a belt, and later in the evening, Ms. Fairbanks-Vargason observed bloody welts on TJR's buttocks. She also recounted conversations she had with Respondent concerning Respondent's relationship with Petitioner. Respondent told her that the parties argued a lot, and were not good together, but that Respondent was not scared of Petitioner however, was afraid of her husband, Andrew. Ms. Fairbanks-Vargason also testified that Respondent had told her that she lied about some documents in order to get a passport for TJR, and that she indicated that the allegations of prostitution was one of the false documents, as was the contention that Andrew's grandmother was dying. Ms. Fairbanks-Vargason testified that Respondent had, before this Petition was filed, told her that she considered trying to work out an agreement with Petitioner to allow them to share custody of TJR and Respondent talked about sending TJR to Australia full- time. She was also aware that the parties spoke frequently on the telephone. Ms. Fairbanks-Vargason also testified that Respondent had been involved with another man, Jonathan Jackson, since March or April, 2011. Ms. Fairbanks-Vargason testified that in May 2011, Andrew's mother asked both Respondent and her son to leave her home. Respondent and TJR left the Vargason home, without her young daughter, and went to Jackson's home on a reservation near Detroit Lakes. Respondent had called her and asked her to pick up TJR, because she did not believe TJR was safe there, and that child protection had been there. TJR was retrieved from the Jackson home, but Respondent remained there with Mr. Jackson, instead of leaving with TJR. Respondent also told her that Mr. Jackson was very controlling and that he had pushed her and has gotten physical during arguments.
The District Court observed that in determining whether the Article 13(b) exception applies, the Court must also take into consideration "the people and circumstances awaiting that child in the country of [the child's] habitual residence." Nunez-Escudero 58 F.3d at 378. Petitioner informed the Court that he currently lived in Perth, Australia, in a home with his fiancee and their child, and that TJR would have his own room in this house. The evidence shows, however, that TJR had never visited Perth, and had not met any of Petitioner's family or his fiancee.
The Court noted that Respondent told her sister-in-law that she was not scared of Petitioner, and that she considered sending TJR to Australia during summers, or during the school year, or even full-time. The fact that Respondent did not fear Petitioner was further supported by the fact that, despite Intervention Orders prohibiting contact, the parties frequently contacted each other, and Respondent never reported such contact to the police.
Although there was evidence that while they were together, the parties had a contentious relationship, and that Petitioner physically and emotionally abused Respondent, the Court stated that the Article 13(b) exception applies only where the evidence is clear and convincing that the child is subject to a grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation, if returned to Australia. On the record before the Court, the evidence did not meet this threshold.
The Court observed that Article 12 of the Hague Convention provides that where the petition is filed more than one year after the alleged wrongful removal of the child, return is not warranted if it is demonstrated, by a preponderance of the evidence, that the child is now settled in his new environment. In this case, the Respondent left Australia on July 19, 2010. Counsel for Petitioner submitted the Petition, Exhibits and IFP Application to the Clerks Office on the evening of July 19, 2011, but the case was not opened until July 20, 2011, pursuant to the Electronic Case Filing Procedures for the District Court, Section II(A)(2)(d). Assuming, without deciding, that the action was filed more than a year after the wrongful removal and the well-settled exception applied, the Court found that at this time, Respondent failed to establish that TJR was well-settled in Minnesota. TJR was almost five years old, and he left Australia at age three. Respondent admitted that her husband was physically abusive towards her, and there was testimony that her husband physically abused TJR as well. Respondent was now separated from her husband, but was involved with another man, who, as told to Respondent's sister-in-law, was controlling and physical during arguments.
Respondent testified that she had since moved into a safe, undisclosed location, had separated from her husband, and had enrolled TJR in school and was trying to obtain employment. This evidence, was not enough to show that at this time, TJR was
well-settled, given the uncertainties that existed due to Respondent's pending divorce,
potential custody issues concerning Respondent's young daughter, and Respondent's
unemployed status.
The Court observed that despite the fact that the parties had been apart since May 2008, and Intervention Orders have been entered, neither party commenced family court proceedings in Australia to make the appropriate custody determinations concerning TJR. The Court believed that such proceedings must be commenced in Australia, prior to TJR's return, to ensure that the Australian court system will be able to assert jurisdiction over the parties and TJR, and to enter the appropriate orders providing for a swift resolution of custody issues and to see to TJR's well-being. The Court granted the Petition, contingent upon Petitioner providing proof to the Court, within thirty days of the date of its Order, that he had commenced child custody proceedings in Australia.

Lockhart v Smith, 2011 WL 4402361 (D.Me.) [Canada] [Wishes of the Child]

In Lockhart v Smith, 2011 WL 4402361 (D.Me.) the District Court granted Kimberly Ann Lockhart’s second Petition for Return of her child. In 2006, the Court held an evidentiary hearing on her first Petition for Return and it incorporated by reference the factual findings from its earlier opinion, Lockhart v. Smith, 2006 WL 3091295 (D.Me. Oct. 20, 2006). Petitioner was a citizen of Canada and resided in Nova Scotia, Canada. She was the mother of S.P.S. and G.T.S. Respondent Philip Gavin Smith ("Smith") was a citizen of the United States and resided in Maine. He was their father. S.P.S. was the eleven year old daughter of Lockhart and Smith. G.T.S. was their twelve year old son. They each had dual citizenship in the United States and Canada.

Petitioner and Respondent stipulated that Petitioner was the custodian of the Children; that Canada was their habitual residence; that Petitioner was exercising or attempting to exercise her custodial rights at the time she filed her Petition; and that Petitioner made a prima facie case against Respondent for wrongful retention under the Hague Convention. In addition the Respondent waived all other defenses under the Hague Convention and stipulated that his sole defense in this action was the "child's wishes" defense under Article 13 of the Hague Convention.

The District Court indicated that it had interviewed the Children in camera. When it interviewed S.P.S. in camera, it found her to be delightful and mature. She expressed that she was happy to return home to Canada, that she missed her friends in Canada, and that she was ready to return to school in Canada. S.P.S. expressed no negative views about returning to Canada and she did not object to returning to Canada. When it interviewed G.T.S. in camera, it found him to be delightful and  mature as well. He also expressed that he was happy to return home to Canada, that he missed his friend in Canada, and that he was ready to return to school in Canada. G.T.S. expressed no negative views about returning to Canada and he did not object to returning to Canada.

The District Court found that Petitioner had made a prima facie case against  Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "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 views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expressed no negative views about returning to Canada and he did not object to returning to Canada.

The District Court found that Petitioner had made a prima facie case against  Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "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 views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expe views about returning to Canada, and he expressed that he would be happy to return to Canada. The Court found that Respondent has failed to establish that the Children objected to being returned to Canada, and granted the Petition.

Norinder v Fuentes, --- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) [Sweden] [Discovery] [Habitual Residence] [Attorneys Fees]

          In Norinder v Fuentes, --- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) Petitioner, Magnus Norinder, filed suit against his wife, Sharon Fuentes, seeking the return of their son, JRN, to Sweden. Norinder was from Sweden and Fuentes was from the United States. Norinder asserted that Sweden was his habitual residence, and that Fuentes abducted JRN to the United States in violation of the Convention. The district court agreed and ordered JRN returned to Sweden, where Norinder was living and where Fuentes and JRN lived until recently. The Seventh Circuit affirmed.
          Norinder and Fuentes, who were both physicians, met on the Internet in 2006. Norinder, a citizen of Sweden, lived in Bors, Sweden at the time; and Fuentes, who was a citizen of the United States, lived in Texas. In February 2007, Fuentes visited Sweden and the couple got engaged; in April, she returned and they conceived a child; in August they were married in Sweden. After the wedding, Fuentes returned to Houston, Texas, to complete a fellowship in pathology. Norinder was chief physician of a hospital in Bors at the time. He took paternity leave in January 2008 to join Fuentes in Houston. JRN was born there the next month. In July, the whole family moved to Sweden. On March 17, 2010, under the guise of a two-week vacation to Texas, Fuentes traveled to the United States with JRN. On April 7, 2010--the day she was scheduled to return to Sweden--Fuentes sent Norinder a text message saying that she was keeping their son and planned to remain in the United States. Norinder hired a lawyer. Eventually, he found them in southern Illinois, and on May 26, 2010, his lawyer there filed the petition for return of the child.
Fuentes's first argument on appeal was that the district court improperly cut off her pretrial discovery, thereby seriously undermining her ability to show that Norinder posed a grave risk of harm to JRN. In her view the district court erred by refusing to apply the Federal Rules of Civil Procedure to the proceedings. The Court of Appeals observed that the district court was properly trying to move this case along on an expedited basis. Norinder's petition was filed on May 26, 2010, and on June 4 the district court set June 22 as the date for the start of a bench trial.  On June 8, Fuentes hired a lawyer. A few days later, on June 15, Norinder filed a discovery plan that recommended completing discovery by June 18. On June 16, Fuentes's lawyer filed his first appearance in the case. On June 21, the day before trial was set to begin, Fuentes filed a response to Norinder's petition and in it requested additional discovery for the first time. She said that the court's current schedule would interfere with her effort to gather evidence needed for trial, and her lawyer submitted an affidavit outlining what she was requesting: medical records relating to Norinder's alleged alcohol and drug use; documents that might reveal past domestic violence; Norinder's prescription drug records; and all documentation kept by his employer. On June 22, at the first of five hearings held by the district court over a month-long period, Fuentes requested a continuance, urging again that she needed  the additional discovery to proceed with the case.  The district judge denied the request and went ahead with the hearing. Later that day, the court said:  And let's see, now I would like for Dr. Norinder, as soon as we finish today, to  execute a waiver or a release for, if the Respondent wishes to have it, for your  medical records since January 2008 [the month before JRN's birth], and employment records, any prescription records, any alcohol or drug abuse treatment records, and any legal records relative to any domestic abuse, or any  crimes for that matter, and any report of investigations at the hospital in Sweden. And I know those won't be here tomorrow, but I suspect they can be obtained expeditiously. The hearing resumed on three additional days in June. On June 30, the district court determined that JRN's habitual residence was Sweden and that Norinder had demonstrated that his rights of custody under Swedish law had been violated when Fuentes abducted JRN to the United States. The court limited the remaining proceedings, which were to take place at the end of July, to the question whether JRN would be exposed to a grave risk of harm if he was returned. All of Fuentes's reasons for seeking more time for discovery before trial related to the grave-risk-of-harm defense--that is, to the part of the case that the court had not yet resolved. On July 14, Norinder produced the medical and employment records that the district court had ordered on the first day of trial; he did not
produce any documents relating to past prescription drug use. On July 22, the district court held the final day of hearings to consider whether Norinder posed a threat to JRN. The court concluded that he did not, and on July 23, it issued an order requiring the return of JRN to Sweden.
Fuentes took  the position that the court's denial of her request for pretrial discovery was an error of law because, she said, the court failed to apply the Federal Rules of Civil Procedure to the case. The Seventh Circuit held that there was no question that the Federal Rules of Civil Procedure apply to cases brought under the Act and the Convention in federal court.. But there was nothing in the district court's opinion that suggested that it was acting outside of the framework established by the Rules. Fuentes made a discovery request on June 21 and the next day asked for more time to pursue that discovery. Such requests occur routinely. As in any case, the question was whether the district court's decision to deny additional discovery was an abuse of discretion. It held that the district court's management was eminently reasonable. A party who seeks additional discovery must let the district court know in a timely fashion. Fuentes's lawyer was aware that a trial date of June 22 had been set at the moment he was hired on June 8 (or he should have made himself aware of that fact); the lawyer had Norinder's expedited discovery plan in hand on June 15, and so he knew that it proposed a completion date for discovery of June 18. It would have been easy to ask the judge for more than three days. Yet Fuentes said nothing about a need for additional discovery until the day before trial and did not request a continuance until the morning it was to start. The district court was under no obligation to push back the proceedings when Fuentes had missed multiple opportunities to tell the court that she needed more time.  Despite the late notice, the district court actually accommodated Fuentes's request for additional information. It quoted above the court's order during the first hearing telling Norinder to produce precisely the documents that Fuentes  contended she needed before trial could begin. The court recognized that those documents could not be retrieved right away, and so it took the additional step of first resolving all of the issues in the dispute that were unrelated to the document production it had ordered. The question of grave risk of harm was put off until a week after Norinder produced the requested records. There was no evidence in the record that Fuentes ever objected to the document production order; nor did she suggest after Norinder had furnished the additional documentation that she needed anything more.
The denial of a continuance was the correct course here because of the time-sensitive nature of the case, filed as it was under an international convention designed to protect children unlawfully abducted to foreign countries. Courts have leeway to limit discovery in many circumstances where the additional discovery would undermine the litigation.  The Convention and its implementing Act were full of the language of urgency and in no uncertain terms contemplate expedited procedures to guarantee that children are returned quickly to the correct jurisdiction. The adjudication of a petition for return of a child is much like a district court's exercise of equitable power in the context of a preliminary injunction or a temporary restraining order. In both circumstances, discovery often must proceed quickly, the district court must apprise itself of the relevant facts, and a decision must be rendered on an expedited basis. The Court  concluded that an expedited schedule is appropriate when a court is considering a petition for relief under the Convention. Nothing about the district court's schedule in this case was at all objectionable, particularly in light of the lack of complaint about the materials actually produced.
The Circuit Court noted that the first step for a court considering a petition is to determine the child's habitual residence. The forum-shopping concern,  means that habitual residence must be "based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them." In Koch v. Koch, 450 F.3d 703 (7th Cir.2006), it  discussed how habitual residence should be determined, and adopted a version of the analysis set out by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The question was whether a prior place of residence (the United States) was effectively abandoned and a new residence established (Sweden) "by the shared actions and intent of the parents coupled with the passage of time." This case was not a close one. Although JRN was born in Houston, Texas, the family moved to Sweden five months after the child's birth and lived there until the trip Fuentes took that triggered this lawsuit. Fuentes said that the 2008 move to Sweden was supposed to be a temporary relocation and that she never would have gone if she thought it was a permanent move. As a result, she continued, she never shared the intent to abandon the United States as her and JRN's habitual residence. The district court was unconvinced:  [T]he uncontroverted evidence is that [Fuentes] had at least 80% of her personal  items shipped to Sweden in July 2008, including two automobiles. She applied for  and received permanent residency status in Sweden as of the end of 2009. She was  engaged in negotiations for a position at a hospital in another city [in Sweden]  and she and Norinder had looked for homes in that city. She took Swedish lessons  right up to the time she left for the United States. Notably, she did not retain  a residence in the United State[s]. She did not have a house, nor was there any evidence introduced of a driver's license, or taxes paid in the United States. This was enough to convince the district court that Fuentes shared the intent to reside in Sweden with Norinder and JRN and was enough to convince the Seventh Circuit as well.
Fuentes  based her assertion that Norinder posed a serious risk of harm to JRN on a handful of serious fights the couple had; an incident in which Fuentes contended that Norinder threw JRN on the ground during an argument; allegations that Norinder was addicted to prescription drugs and that he abused alcohol; and the testimony of two psychiatrists, Drs. Roth and Woodham, who appeared on Fuentes's behalf at trial. Norinder responded that he was a fit and loving parent; he disputed that he ever threw JRN or harmed the child in any way.  Norinder presented testimony from his long-time psychiatrist, Dr. Vikander, about his history of drug and alcohol abuse. He asserted that Fuentes fell far short of showing the requisite grave risk of harm required by the Convention.  The district court agreed with Norinder on every point. It found that Fuentes's testimony about Norinder's past behavior was not credible.  The court also thought that Norinder's distant history of drug and alcohol abuse did not suggest that he would harm JRN. It was not persuaded by the testimony of Fuentes's expert witnesses. The past fights, the court said, were best viewed as "minor domestic squabbles" rather than anything detrimental to JRN. The district court concluded, "[T]here is no credible evidence that this return of the child to the custody of the Petitioner will, in any manner, present a grave risk of harm."
          The Seventh Circuit found no fault in the lower court's factual findings. Concern with comity among nations argues for a narrow interpretation of the 'grave risk of harm' defense; but the safety of children is paramount. The risk of harm must truly be grave. The respondent must present clear and convincing evidence of this grave harm because any more lenient standard would create a situation where the exception would swallow the rule. Fuentes did not met this demanding standard.
Finally, Fuentes challenged the district court's award of fees and costs. She objected to particular line items that Norinder claimed in his motion for fees and costs; and, she said that her financial situation was so dire that she should not be required to pay fees or costs at all. The district court used the lodestar method to calculate attorney's fees and carefully evaluated all of the expenses that Norinder claimed. It reduced the total amount of time billed by Norinder's lawyer and paralegal by 20% and cut the fee charged by the lawyer down to $300 an hour and that charged by the paralegal to $125 an hour. In addition, the court excluded expert witness fees and expenses that were paid to Norinder's psychiatrist because there was not adequate
documentation to support the claimed expenses. Norinder's motion was thus granted in part and denied in part: Norinder asked for $170,000 and the court awarded $150,570. Fuentes said that it should reduce that award by "at least $75,000." Fuentes objects in particular to four line items. The short answer was that the district court evaluated these arguments and made adjustments where appropriate.
Fuentes argued that the fee award was so large that it would make it impossible for her to conduct divorce and custody proceedings in Sweden. At least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child. The district court recognized these cases but decided that, because Fuentes stood to make "in excess of $300,000 a year" following her fellowship, the award of $150,000 would not inflict that sort of harm. Fuentes told the Seventh Circuit that her monthly income was just $3,300, and was consumed almost entirely by expenses and debts. Fuentes herself has said that she would make $300,000 a year. Fuentes had not provided any sort of rebuttal to this claim in this court, and her silence suggested that the fee award was not a substantial problem. With nothing in the record causing it think that the award would have a detrimental impact on JRN, it concluded that the district court acted within its discretion when it awarded costs and fees to Norinder.

Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) [Mexico] [Rights of Custody] [Patria potestas] [Grave Risk of Harm ] [Attorneys fees]

In Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) Quesada was from Costa Rica and K. Stoner was born in the United States. Quesada and K. Stoner were married on June 5, 1993 in State College, Pennsylvania. Quesada and K. Stoner moved to Mexico together in 1998. Both Quesada and K. Stoner held permanent positions as professors at the National Autonomous University of Mexico since 1998; K. Stoner no longer held her position at the National Autonomous University of Mexico. Quesada and K. Stoner were the parents of two minor children: Alejandra Quesada Stoner ("A.S.’), born September 29, 2000, in Puerto Vallarta, Jalisco, Mexico; and Victoria Quesada Stoner ("V.S.") , born November 16, 2004, in Morelia, Michocan, Mexico. A. S. and V. S. were American citizens born in a foreign country; Quesada and K. Stoner thought it would be good for them to have dual citizenship. A. S. was now ten years old, and V. S. was six years old. Since their marriage and the birth of their children, Quesada and K. Stoner maintained a home in common wherein they carried out their parental responsibilities towards the children. In the last five years, A. S. and V. S. lived with Quesada and K. Stoner at the family's home at Calle de las Vientas 120, Fraccionamianto Country Club Campestra La Huerta, Morelia, Michoacan, Mexico. Quesada lived with his children all of their lives. Before K. Stoner took the children to the United States, the children went to school in Mexico, and were settled and integrated in Mexico's life and culture.

From August 2008 through August 2009, A. S. and V. S. lived in Los Angeles, California, and attended school while K. Stoner was on sabbatical. K. Stoner and the children lived in Los Angeles alone for several months until Quesada joined them. Quesada's personality changed over the past ten years, and his personality had become worse lately when he was intoxicated. Quesada consumed alcohol to excess at times when he was not working, but when he was with the family. The alcohol was neither a habit nor extreme, but was a concern. Quesada had been abusive towards K. Stoner, especially when he was intoxicated.. Around Easter, in 2008, Quesada, K. Stoner, and the children went on a family vacation to Costa Rica with several members of Quesada's family. Quesada, K. Stoner, the children, and Quesada's family slept in a room together. Late one night, Quesada came back to the room intoxicated. He grabbed K. Stoner's wrists and raped her.K. Stoner was afraid of waking the children, so she did not scream or call out. On December 24, 2009, the family was staying at Quesada's mother's house in Costa Rica. On one occassion K. Stoner tried to calm Quesada's brother down, and Quesada told her "shut up bitch" and hit her. Quesada never harmed his children.

K. Stoner left Mexico with A. S. and V. S. on July 13, 2010, with Quesada's permission.. The plan was that the children were going to be returned to Mexico on August 3, 2010 after their vacation at K. Stoner's parents' house in Las Cruces. K. Stoner and the children were scheduled to return to Mexico on August 3, 2010, and the children were scheduled to start school again in Morelia on August 23, 2010. The children never came back to Mexico; K. Stoner returned to Mexico in early August when Quesada was in the United States for work, and took several household items and the car, which she drove from Mexico to New Mexico without telling Quesada anything. K. Stoner admitted that she deceived Quesada to get herself, and A. S. and V. S. out of Mexico in what she thought was a legal way. K. Stoner left Mexico with the children to travel to the United States and planned to allege that she was fleeing from the abusive behavior.

The District Court found that K. Stoner did not leave Mexico with the children because of abusive behavior; she left because she wanted custody of the children and because she was not securing the custody through divorce negotiations. It also found that Quesada did not acquiesce in K. Stoner's removal of A. S. and V. S. from his custody. At no time did Quesada agree to K. Stoner retaining the children in the United States.. A. S. and V. S. had now successfully completed a year of schooling at Mesilla Valley Christian School. The children were well acclimated to the United States, and they enjoyed it. In September, 2010, Quesada filed a Mexican Petition Under the Hague Convention, asking the Mexico Secretary of State under the Hague Convention to contact the United States Secretary of State. Quesada filed a petition for divorce in Mexico in April, 2011. There was no custody order from any court that has awarded custody of the children to either parent. K. Stoner filed a case seeking a divorce, child support, and child custody in Dona Ana County, State of New Mexico.

On June 23, 2011, Quesada filed a Verified Petition for Return of Children to Petitioner. At the hearing on August 2, 2011, both Quesada and K. Stoner testified. They did not present any other witnesses. The children were present outside of the courtroom, but did not testify.

The District Court granted the Petition. It observed that the Civil Code for the State of Michoacan states: Parental authority/responsibility (patria potestas ) over the children will be exerted: I. By the father and mother. II. By the paternal grandfather and  grandmother or by the maternal grandfather and grandmother, indistinctly, considering those with whom the children will have a better moral, educational, social, economical and family development. ... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the residence of those who exert it without their permission or by order emitted by an authority legally qualified to do so. Michoacan Civil Code ss 367, 373. It observed that the Federal Civil Code states: Paternal uthority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets. Regarding the care and education of the minors, parental authority/responsibility (patria potestas ) is to be exerted in the manner prescribed by the order pronounced by the judge and in accordance with the Law of Social Prevision of Juvenile Delinquency of the Federal District (Distrito Federal ). .... Parental authority/responsibility (patria potestas ) is exerted by both parents.

When due to any circumstance one of them ceases to exert it, it shall be exerted by the other one. .... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the house of those who exert it without their permission or by means of an order emitted by an authority legally qualified to do so. 18 Federal Civil Code art. 413, 414, 421.

The Court held that Quesada had established by a preponderance of evidence that the children have been wrongfully removed or retained. A. S. and V. S. were physically present in Mexico "for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from a child's perspective," Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995), because they were born in Mexico and, because, before their removal to the United States, they lived in Mexico and went to school there, except for a year that they spent in Los Angeles when their mother was on sabbatical. Quesada's and K. Stoner's shared intentions regarding their children during the time preceding the abduction reflected an intention to stay in Mexico, because Quesada and K. Stoner owned a house in Mexico, because they were professors at a university in Mexico, and because the children were registered to begin school in Mexico in August, 2010. Because it appeared Quesada had rights of custody under Mexico law, and because K. Stoner did not have the right to remove the children, K. Stoner's removal of the children from Mexico, and retention of the children in the United  States, was in breach of Quesada's custody rights under the laws of Mexico. Although Quesada did not give K. Stoner money for supporting the children since January, 2010, he paid the mortgage of their home where he, K. Stoner, and  the children lived, and throughout the children's lives Quesada and K. Stoner had provided for the children's food, shelter, and education. The District Court found that Quesada was exercising his rights to custody at the time K. Stoner removed the children to the United States, and retained them in the United States, because  he and K. Stoner lived with the children, because he participated in the children's lives, and because he helped to provide the children with food, shelter, and education. See Friedrich v. Friedrich, 78 F.3d at 1066 ("We ... hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.").

The District Court found that although K. Stoner argued that Quesada acquiesced or consented in the removal of the children, because he legally abandoned the children by his failure to financially support them, K. Stoner had not directed the Court's attention to authority which states that a person can acquiesce or consent to removal through abandonment. All the cases that the Court found which discuss abandonment related to whether the petitioner exercised his or her rights to custody. Quesada did not consent to the removal or retention under the convention,  because although he consented to the children going on a trip to the United  States, he did not consent to the children staying in the United States. It also found that K. Stoner has not proved by clear and convincing evidence that there was a grave risk that the children will be put in an intolerable situation, or will be subject to physical or psychological harm, if they are returned to Mexico. K. Stoner had not proved by clear and convincing evidence that Quesada's drinking or abuse of her would create a grave risk that the children would be put in an intolerable situation, or would be subject to physical or psychological harm, if they are returned to Mexico. Because there is no evidence that Quesada had abused his children, and because, although Quesada can, at times, drink to excess, he was not an alcoholic and there was no evidence he had been abusive towards his children when he was drinking, there was not clear and convincing evidence that the children would be put in an intolerable situation, or subject to psychological or physical harm, if they were returned to Mexico. Although there was evidence that Quesada raped and abused K. Stoner, "any instances of physical abuse by Petitioner were limited incidents aimed at persons other than the child[ren] at issue, and thus are not sufficient to support application of the 'grave risk' exception."

The Court ordered K. Stoner to "pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, ... and transportation costs related to the return of the child." 42 U.S.C. s 11607(b)(3). To determine attorneys' fees, the Court multiplied "the number of reasonable hours expended by a reasonable hourly rate." Neves v. Neves, 637 F.Supp.2d 322, 339-40 (W.D.N.C.2009)("In determining the amount of reasonable attorney's fees to award under ICARA, federal courts typically apply the lodestar method. Under the lodestar method, the Court multiplies the number of reasonable hours expended by a reasonable hourly rate." (citing Wasniewski v.. Grzelak-Johannsen, 549 F.Supp.2d 965, 971 n. 5 (N.D.Ohio 2008); Distler v. Distler, 26 F.Supp.2d 723, 727 (D.N.J.1998); Freier v. Freier, 985 F.Supp. 710, 712 (E.D.Mich.1997); Berendsen v Nichols, 938 F.Supp. 737, 738 (D.Kan.1996); Flynn v. Borders, No. 5:06-323-JMH, 2007 WL 862548, at *2 (E.D.Ky. Mar. 20, 2007); Friedrich v. Thompson, No. 1:99-CV-772, 1999 WL 33951234, at *3 (M.D.N.C. Nov. 26, 1999)). Quesada filed an affidavit for attorneys' fees and costs. Quesada's attorney, Shane English, represented that his hourly rate was $160.00 per hour until May 31, 2010 and $180.00 per hour thereafter. The Court found that this hourly rate was reasonable for federal court practice in the District of New Mexico. The Court ordered K. Stoner to pay Quesada's attorneys' fees and costs of $14,5 81.72, and transportation costs related to the return of the children.

Application of Garcia v Varona--- F.Supp.2d ----, 2011 WL 3805778 (N.D.Ga.) [Spain] [Rights of custody] [Patria potestas ] [Consent] [Abandonment]

In Application of Garcia v Varona--- F.Supp.2d ----, 2011 WL 3805778 (N.D.Ga.) the District Court granted the petition for return. Petitioner and Yanine Hernandez Varona ("Respondent") were the unmarried parents of two children, A.J.H. and F.J.H. Petitioner was a Spanish national. Respondent was a Cuban national, who possessed a Spanish residency card. Both were born in Seville, Spain and were Spanish nationals. Petitioner was the biological father of both children.

From April 2004 until separating in April 2010, Petitioner and Respondent lived together with the Children in Seville, Spain. Petitioner moved out of the family home in April 2010 because the situation between he and Respondent became intolerable and he had concluded that moving to his mother's house was best for the Children. Between April 2010 and the removal of the Children from Spain in December 2011, the Children resided principally with Respondent. During this period, Petitioner visited the Children every Tuesday and Thursday and the Children lived with him every other weekend. Petitioner also provided 400 Euros a month to Respondent for the support of the Children; paid for A.J.H's English classes; and paid the mortgage and a portion of the utility bills for the home in which Respondent and the Children were living. In July 2010, Respondent visited Florida with the Children to vacation with her maternal relatives there. Petitioner supported the visit to Respondent's family. While driving back from the airport following the vacation to Florida, Respondent claimed she told Petitioner that her and the Children's future was in the United States, and she claimed Petitioner said she could live where she wanted. Petitioner denied that he ever gave consent to allow Respondent to remove the Children to the United States if she chose to reside there.

Believing that Respondent may remove the Children from Spain without telling him, on September 24, 2010, Petitioner initiated a proceeding in Spain to establish "provisional measures" regarding his parental rights. On November 24, 2010, the Spanish Court issued its preliminary order regarding the Emergency Petition. The Spanish Court considered Petitioner's request for "provisional measures," "accepted that the couple have children who are minors," and required Petitioner and Respondent to appear at a hearing on December 15, 2010. The summons and complaint filed in the Spanish Court apparently was not served upon Respondent before she departed Spain. On November 30, 2010, Petitioner went to the Children's school and learned they were absent. Distressed about the location of Respondent and the well-being of the Children, Petitioner began a search to find the Children, and ultimately learned from Respondent's relatives in Spain that she had departed Seville, taking the Children with her that morning. After Petitioner learned Respondent and the Children were no longer in Seville,the parties had a telephone conversation on the evening of November 30, 2010. In the November 30, 2010, telephone conversation, Respondent did not disclose to Petitioner her plans to depart Spain the next day for the United States and to take the Children with her. On or about December 9, 2010, just days before the December 15, 2010, hearing, Respondent informed Petitioner by phone and by a letter sent by facsimile that she had moved to the United States with the Children.

On December 9, 2010, the Spanish Court, after being advised of the possibility that the Children might be removed from Spain by Respondent without the Petitioner's consent, issued a second order. The Spanish Court noted "the possible exit" from Spain of A.J.H. and F.J.H.. The court further noted that the Children had "stopped going to the school where they were registered, [which] reinforces the possibility that the mother wants to leave the country with the minors.". The court's December 9th order prohibited the departure of A.J.H. and F.J.H. from Spain, prohibited the issuance of passports to the Children, and recalled any passports issued to the Children. (Id.). The Spanish Court imposed the removal prohibition "to save, the minors' interests and their rights to relate to their father" as set forth in Article 156 of the Spanish Civil Code. The Spanish Court stated in its order: "In addition in respect
to the article 156 of the Civil Code, Paternal authority will be exercised together by both parents or just by one of them with the other's clear or tacit consent, and in this case there is evidence that the father has expressed his negativity towards leaving the country."

After departing Spain, Respondent took up residence with the Children in Georgia at the residence of Mr. Hinojosa. Respondent and the Children were currently living with Mr. Hinojosa. Respondent represented to the Court that she and Mr. Hinojosa were engaged and he was assisting Respondent in obtaining a work permit to remain in the United States. On May 12, 2011, Petitioner filed with the Office of Children's Issues, United States Department of State, an application for the return of the Children. On July 29, 2011, Petitioner filed his Motion Under the Hague Convention for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing [2],as well as his Verified Complaint and Petition for Return of the Children [1]. Petitioner sought a temporary restraining order ("TRO") and expedited hearing on his motion for injunctive relief.

A hearing was held by the Court on August 4, 2011, and an order was issued prohibiting the Children from being removed from this jurisdiction and setting an August 25, 2011, date for a trial on the merits.

The District Court observed that non-emancipated children in Spain are under the authority of their parents. C.C., Art. 154. A biological, unmarried parent has the same status under the Spanish Civil Code as a married parent or an adoptive parent. C.C., Art. 108. Article 108 of the Spanish Civil Code uses the term "filiation." C.C., Art. 108. Black's Law Dictionary defines "filiation" as "the fact or condition of being a son or daughter; relationship of a child to parent" and as "judicial determination of paternity." Black's Law Dictionary (9^th ed.2009). Spanish parental authority is normally exercised by both parents, or by one of them with the express or tacit consent of the other. C .C., Art. 156. Parental authority includes the duties towards one's children of "looking after them, keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. "Separation, annulment and divorce shall not exonerate parents from their obligations to their children." C.C., Art. 92.1. When parents are living separately, parental authority will normally be exerted by the parent with whom the child is living. C.C., Art. 156. However, when parents are living separately and do not agree on a custodial arrangement, then a judge will decide which parent will take care of the children under legal age. C.C., Art. 159. A judge may also, on request of the other parent and acting on behalf of the child, assign parental authority to be exerted jointly between the parents. C.C., Arts. 156, 158. All parents under Spanish law, including those who are not granted custodial rights, have the right to keep in touch with their underage children, unless a judicial body determines otherwise. C.C., Art. 160. An additional component of parental responsibility in Spain is the doctrine of patria potestad. This doctrine is codified in the Spanish Civil Code at Articles 154 and 156 and translates, respectively, as "authority of the parents" and "parental authority." C.C., Arts. 154, 156; Patria potestad includes the right of a Spanish parent to "make decisions regarding a child's education, well-being, protection, upbringing, and place of residence." See C.C., Arts. 154, 156, 160; Moreno, 2008 WL 4716958, at * 8. Patria potestad encompasses more than the parental authorities and responsibilities in the Civil Code and extends to "parental authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside," and "decisions about ... the children's residence or those which will affect the scholar, health, and religious limits." Black's Law Dictionary defines "patria potestas" as "[t]he authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated." Black's Law Dictionary (9th ed.2009).

The Court further observed that under the Convention, rights of custody include "rights relating to the care of the person of a child," and in particular, "the right to determine the child's place of residence." These rights of custody may be based on the law of the state of habitual residence or a judicial decision having legal effect under the law of that state. Because the Children lived in Spain for their entire lives prior to being removed, Spain was their habitual residence and Spanish law applied in determining Petitioner's rights of custody.

The District Court held that the Petitioner had rights of custody under spanish law. Spanish parents have the duty of "looking after [their children], keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. Under the doctrine of patria potestad, Spanish parents also jointly possess authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside. These obligations continue even when parents separate. C.C., Art. 92.1. Although parental authority is principally exercised by the parent with whom the children are living during a separation, that authority is not exclusive to that parent and is subject to a judicial determination where there is disagreement. C.C., Arts. 154, 159. When parents cannot agree on a custodial agreement for minor children or the scope of the parental authority each may assert after separating, the Spanish Court determines these issues. C.C., Arts. 156, 159. Until that determination occurs, both parents continue to enjoy the rights of custody afforded to them as parents under Spanish law, to include those specifically enumerated in Articles 154 and 160 of the Spanish Civil Code, as well as those arising from patria potestad. See C.C., Arts. 92.1, 154, 156, 159-160. Under Spanish law, Petitioner, as a parent, enjoyed authority to communicate with and make decisions regarding the Children that "fall within the ambit of decisions relating to the 'care of the person of the child' within the meaning of Article 5 of the Convention. This decision-making parental authority qualifies as rights of custody as defined by the Convention and understood by our courts. Thus, the Court found that Petitioner established by a preponderance of the evidence that he enjoyed rights of custody under the Convention and Spanish law and that the removal of the Children from Spain violated Petitioner's rights of custody. The Court's conclusion that Petitioner had and was exercising rights of custody when the Children were removed from Spain by Respondent was further supported by the December 9, 2010, judicial decisions of the Spanish Court and Spanish Justice Court. These decisions expressly recognized Petitioner's rights of custody under Spanish law with respect to his relationship with the Children as their biological father, including the right to decide where the Children lived.

The recognition of these rights led to these Spanish judicial decisions to prevent the Children from departing Spain and to issue a criminal indictment against Respondent based on her wrongful removal of the Children from the country. In determining if there has been an exercise of rights of custody, courts within the Eleventh Circuit have favorably used the standard adopted by the Sixth Circuit that "[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to 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." See, e.g., Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir.1996) Once a court "determines that the parent exercised custody rights in any manner, the court should stop-- completely avoiding the question whether the parent exercised the custody rights well or badly." Friedrich, 78 F.3d at 1066. Lastly, when one parent removes the child without seeking a ne exeat holder's consent, it is clearly an instance where the right would have been "exercised but for the removal or retention." Convention, Art. 3(b); Abbott, 130 S.Ct. at 1992. The Court found that Petitioner had established by a preponderance of the evidence  that he was actually exercising the rights of custody he had under Spanish law at the time of removal. Petitioner sought to be a continual presence and influence in the life of the Children up until the day of their wrongful removal, seeing them  every Tuesday and Thursday, living with them every other weekend, providing a variety of financial support to them, and resorting to the Spanish Courts to formally establish his ne exeat and custody rights under Spanish law. The Court further found that Petitioner would have exercised his ne exeat right of custody,  as validated by the Spanish Court's judicial decision of December 9, 2010, but for the removal of the Children from Spain without Petitioner's knowledge and without his consent.

Respondent raised the defenses of consent and abandonment. Consent or "acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070; see De Vasconcelos v. De Paula Batista, No. 4:10-CV-00628, 2011 WL 806096, at *7 (E.D.Tex. Mar. 1, 2011) (applying the Friedrich standard for acquiescence) Respondent, however, did not offer any factual basis for her claim that Petitioner consented or acquiesced to her removal of the Children to the United States beyond her self-serving testimony that Petitioner said she could take the Children anywhere. The Court, having observed Respondent testify on this matter at  trial, found her testimony unconvincing and not believable. Having had the benefit  of observing Petitioner during his testimony, the Court found highly credible that  he did not and would not have consented to the removal of the Children from Spain. The Court found Respondent has not met her burden of proving by a preponderance
of the evidence that Petitioner consented to the removal of the Children. With regard to the affirmative defense of abandonment, this argument was, at  most, based on Respondent's contention that Petitioner, having moved five minutes  away to reside with his mother, was not actually exercising his custodial rights when the Children were removed. The evidence showed, however, that while Petitioner moved out, he did so in the best interests of the Children, intending to and
remaining actively engaged in their lives, including by being available to care for the Children when Respondent called to say she had to run errands or attend to other matters. A court cannot find a failure to exercise custody rights by a parent "short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066; see Moreno, 2008 WL 4716958, at *9. There was simply no evidence of abandonment in this case.

In re Application of Lozano, 2011 WL 3667444 (S.D.N.Y.) [United Kingdom] [Well-Settled in New Environment]

In re Application of Lozano, 2011 WL 3667444 (S.D.N.Y.) the case involved a dispute between Manuel Jose Lozano ("Petitioner") and Diana Lucia Montoya Alvarez ("Respondent"), regarding their five-year-old child. On November 10, 2010, Petitioner filed a Petition for Return of Child to Petitioner pursuant to the Hague Convention requesting that the Court issue an order requiring that his child be returned to London, United Kingdom, to have a British court make a custody determination. The Court held an Evidentiary Hearing on February 2 and 3, 2011. Petitioner testified and observed
the hearing via video conference in the London office of his counsel. The court denied the petition and denied the request for counsel fees on the ground that the child had been in New York for more than a year after the wrongful removal and was well settled in her new environment.

Petitioner and Respondent, who were both originally from Colombia, met and began dating in early 2004 in London. Petitioner moved into Respondent's flat about two or three months after they began dating. At the time they met, Respondent was not working and received government benefits; Petitioner worked in maintenance for a tax office and also had a nighttime cleaning job. The Parties never married. After the Parties moved in together, Petitioner mainly financially supported the household, while Respondent was responsible for cooking, cleaning, and taking care of their child
after her birth. Respondent received incapacity benefits because she suffered from depression. Respondent testified that when she arrived in London, she became very depressed because she missed her family and was unable to obtain a professional job like she had in Colombia; after she resigned from the job that she did have, she was very frustrated and became more depressed, and her doctor prescribed her Prozac. Respondent took Prozac for several years, but stopped when she first became pregnant with Petitioner's child; however, she started taking it again in 2008 before she left Petitioner. Petitioner claimed that although they had normal couple problems, generally they were "very happy together" and had a good relationship. Although Respondent agreed that they were very happy at the beginning and describes Petitioner as charming, kind, fun, and spontaneous when she initially met him, she testified that after a month of living together, he began to treat her badly, insult her on a regular basis, and be generally very controlling. Respondent described a pattern of physical and emotional abuse. She testified that Petitioner tried to kick her in the stomach when she was pregnant, pulled her out of bed one night when she received a wrong number phone call and called her a prostitute, and raped her four times. In addition, Respondent maintained that Petitioner repeatedly told her that she was stupid and useless and that her friends and family hated her, often told her to kill herself, and threatened to take the child away from her. Petitioner denies ever hitting or raping Respondent, forbidding her from speaking to her family or friends, or pushing her while she was pregnant, and testified that he never insulted, threatened, or raised his voice to Respondent. Respondent also testified that Petitioner drank heavily and watched pornography. In contrast, Petitioner testified that he did not watch pornography , and denied that he drank a lot or had ever been so drunk that he did not know what he was doing, although he admitted that he sometimes has drunk about three beers in an evening. In May 2009 Respondent and the child moved to a shelter. After Respondent left Petitioner and took the child with her, Petitioner attempted to locate Respondent and the child through the United Kingdom court system. When Respondent moved to New York, she was treated by the therapist who diagnosed her with post-traumatic stress disorder ("PTSD") based on her symptoms, which included heightened startle response, hypervigilance, nightmares, tearfulness, and flashbacks. The Court found that Petitioner's claims that he never insulted or mistreated Respondent in any manner were not credible. The Court found that there was insufficient evidence to conclude that Petitioner either sexually or otherwise physically abused the child in any manner.

In November 2008, Respondent came to New York to visit her sister Maria and attempt to gather evidence to support Respondent's and Petitioner's case regarding a problematic loan. During this time, the child stayed in London with Petitioner and Petitioner's mother who was visiting from Colombia. Petitioner claimed that when he picked Respondent up at the airport upon her return, Respondent "was a completely different person" than when she left London a week earlier and she demanded that Petitioner and his mother leave their house immediately. Respondent testified that when she returned from New York, Petitioner and his mother were acting very suspicious and the child was acting fearful and strange around Petitioner; Respondent became extremely scared, and decided to leave. On the following day, November 19, 2008, Respondent left to bring the child to nursery school and never returned. Respondent and the child resided at a shelter, from November 24, 2008, until July 3, 2009. On July 3, 2009, Respondent and the child left the United Kingdom, traveling first to France and then to New York, where they had lived since July 8, 2009. Petitioner described a multitude of channels that he pursued in an attempt to find his child and resolve the situation. After having "exhausted all possibility that [the child] was still in the [United Kingdom]," on March 15, 2010, Petitioner filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom; the application was sent to the United States Department of State Office of Children's Issues on March 23, 2010. The application detailed more of the steps that Petitioner undertook to find Respondent and the child and indicated that Petitioner believed that Respondent and the child were in Manhattan.

Since arriving in New York, Respondent and the child lived with Respondent's sister Maria, Maria's partner, Respondent's niece (Maria's daughter), and the niece's two-year-old daughter. Maria worked as a nanny for the same family for four years; Maria's partner owned a grocery business. Maria financially supported Respondent and the child and, in return, Respondent cooked, cleaned, and took care of the children.

Respondent has not had a job since she came to the United States. Because Respondent and the child had British passports, they were allowed to enter the United States without a visa; however, Respondent testified that they are currently overstayed, and have been since October 2009. Respondent testified that she was consulting with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen. The child attended the same school since she and Respondent arrived in New York and was enrolled in kindergarten; according to Respondent, the child was doing very well in school. On the Academic Standards Report at the end of that school year, the teacher wrote that the child "has made a lot of progress socially [and] is beginning to assert herself more [; she] is progressing academically as well." After arriving in New York, Respondent and the child began receiving therapy from a psychiatric social worker at a family medical clinic in July 2009.

The District Court found that Petitioner has adequately established a prima facie case of wrongful retention under the Hague Convention. Respondent did not attempt to argue otherwise. The court observed that the Court "is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). Respondent had to establish this defense by "clear and convincing evidence." 42 U.S.C. s 11603(e)(2)(A). This defense recognizes that "[t]he interest of the child in not being removed from its habitual residence ... gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation." Blondin v. Dubois, 238 F.3d 153, 161 (2d Cir.2001) ("Blondin IV" ). However, "[t]he level of risk and danger required to trigger this exception has consistently been held to be very high." The Court found that Petitioner's claim that he never mistreated Respondent through any verbal abuse was not credible. However, the Court was presented with much less evidence regarding any physical abuse by Petitioner, and, the evidence was entirely insufficient to find that Petitioner abused the child physically, sexually, or psychologically. Although the therapist testified that the child clearly showed signs of trauma when they first met, the therapist was unable to pinpoint the source of that trauma. There was reason to believe that, whether in combination or in isolation, the time the child spent at the shelter, as well as being uprooted from her life in the United Kingdom, could have been the cause, or the primary cause, of the trauma that the child was suffering upon her arrival in the United States. The Court therefore agreed with the Petitioner’s expert’s conclusion that based on the record before the Court, it was impossible to determine, by even a preponderance of the evidence, that the child's trauma was caused by anything Petitioner did to the child. The Court therefore agreed with Petitioner that Respondent failed to carry her burden of establishing by clear and convincing evidence that returning to the United Kingdom would pose a grave risk of harm to the child. There was insufficient evidence that merely returning to the United Kingdom--even if that country was the site of some of the child's trauma, whether caused by the child witnessing Petitioner's abuse of Respondent or by being in the shelter--in and of itself would present a grave risk.

The Court noted that the Convention provides that where a period of more than one year has elapsed between the dates of the wrongful removal of the child and "the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is," the judicial or administrative authority "shall [ ] order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Hague Convention, art. 12. For this defense to apply, Respondent must persuade the Court, by a preponderance of the evidence, that the child should not be returned to the United Kingdom because the child has been in New York for more than one year and has become settled. See 42 U.S.C. s 11603(e)(2)(B).

In the instant case, the Petition was filed more than a year after the wrongful removal of the child. The child was removed from the United Kingdom in July 2009 and Petitioner did not file his Petition in this Court until November 10, 2010. Petitioner asserted that the one-year period should be equitably tolled because Respondent concealed the whereabouts of the child from Petitioner, preventing him from timely filing his Petition. Petitioner maintained that the Article 12 defense was not available to Respondent and that the Court must order the child's return. The Court observed that neither the Hague Convention nor ICARA mention equitable tolling, and the Second Circuit has not considered whether the one-year period in Article 12 may be tolled. However, a number of courts outside the Second Circuit have applied equitable tolling, concluding that refusing to toll the one-year period would create incentives for abducting parents to conceal the child's whereabouts until after one year had lapsed and thus reward the behavior the Convention seeks to prevent. However, the only court within the Second Circuit to consider this issue determined that equitable tolling does not apply to the Article 12 settled defense. See Matovski, 2007 WL 2600862, at *11. The Matovski court concluded that "the one-year period in Article 12 is not a limitations period, nor is it analogous to a limitations period [because] ... '[a] petition for return of the child is not barred if it is filed over one year from the date of removal.' "

The District Court agreed with the conclusion reached in Matovski finding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. It was clear, from both the wording of Article 12 and the Perez-Vera Report, that the purpose of the settled defense is not to give petitioners a reasonable amount of time in which to bring their claims, as is the function of most statutes of limitations. Instead, the purpose is to take into account that if the child has become settled, its interests have to be weighed. And the Convention decided that after one year had passed, the child's interests would almost presumptively carry more weight than the interest of a petitioner. Because the child had been in New York for approximately sixteen months at the time the Petition was filed, the Court must consider whether the child had become settled in her new environment. To establish the merits of this exception, Respondent "had to show by a preponderance of the evidence that the child was in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." Koc, 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at * 13 ("Respondent must marshal substantial evidence of the child's significant connections to New York." Among  the factors that courts have considered in determining whether or not a child has become settled are: "the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's employment[;] and whether the child has friends and relatives in the new area." Koc 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at *13; Reyes Olguin, 2005 WL 67094, at *8. Here, a number of these factors supported a finding that the child was now settled. At the time Petitioner initiated this action, by all indications, the child had been living in one place for sixteen months, which is a long period of time in the life of a five-year-old. Since they arrived in New York, Respondent and the child had lived in the same location with Respondent's sister, the sister's partner, Respondent's niece, and the niece's daughter; the child had become close to this family, and also saw other extended family who lived nearby on the weekends. Her school records showed that she was enrolled in pre-kindergarten last year, and currently attended kindergarten at the same school. The child's pre-kindergarten report cards stated that she was progressing socially and academically. Respondent testified that the child had made friends at school with whom she sometimes played after school and met at the park or library, went to ballet class, and attended church. Both experts testified that Respondent appropriately cares for the child, and the child told Petitioner’s expert, Dr. Fraser that she loved where she lived and was happy in New York. The therapist also testified that the child had improved dramatically since she began seeing her and seemed to be doing very well here in her current environment. However, Respondent was unemployed and she and the child are entirely dependent on Respondent's sister Maria and Maria's partner for financial support. The Court pointed out that in Matovski, the court concluded, in similar circumstances to here, that the mother's inconsistent employment history was not a major factor because the children and mother were financially supported by the children's grandparents, with whom the children and mother lived, rendering their overall financial stability "reasonably assured." Matovski, 2007 WL 2600862, at * 14 (determining that overall, there was "substantial, persuasive evidence" that the children had significant connections to their new environment because they had lived in the same home since arriving in New York, consistently attended school and activities with the same classmates, socialized and played with many friends, and were attached to their large extended family in New York). In contrast, in Koc, the  court viewed the mother and child's financial dependence on the mother's parents as a negative factor, see Koc, 181 F.Supp.2d at 154, but there they also received support from public services, and had only lived with the child's grandparents for the first three months of the twenty-seven months that they had been living in New York prior to the filing of the petition. Under the circumstances presented the Court found there was nothing to suggest that the financial and other support that the child and Respondent were receiving from Maria's family was in jeopardy, or is unlikely to continue for the foreseeable future. There was also some concern as to the immigration status of Respondent and the child. They have both overstayed their visas and were not legally in the United States. In Koc, the court, in determining that the child was not settled, took into account that she and her mother had overstayed their visas and were in the country illegally, which the court noted would make it virtually impossible
for the child to see her father if she remained in the country. However, the Ninth Circuit has rejected the idea that immigration status should render an otherwise settled child not settled, concluding that immigration status should only be a significant factor in the settled analysis if there is an immediate, concrete threat of deportation. See B. del C.S.B., 559 F.3d at 1010-14. Here, there was no indication that Respondent and the child faced an imminent, or any, threat of deportation, and there was unrefuted testimony from Respondent that she was looking into methods to gain legal status, including having her sister Maria, who was a United States citizen, sponsor Respondent and the child for citizenship. There was nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent was likely to upset the stability of the child's life here in New York.

The child's life does not have to perfect for her to be settled. Viewing the totality of the circumstances, the description of the child's life, as presented to the Court, suggests stability in her family, educational, social, and most importantly, home life the Court concluded that the preponderance of the evidence demonstrated that the child was settled in her current environment. To uproot her once again would be extremely disruptive; she reached the "point at which [she has] become so settled in [her] new environment that repatriation [is] not ... in [her] best interest." Blondin IV, 238 F.3d at 164. Accordingly, the Court found that the elements of the Article 12 defense had been met.

The Court chose not to exercise its discretion to order the child returned even though she was now settled. Accordingly, the Petition was denied. Because the Court was denying the Petition, Petitioner's request for an order directing Respondent to pay Petitioner's legal costs and fees was also denied.