Hofmann v Sender,--- F.3d ----, 2013 WL 1955846 (C.A.2) [Canada] [Habitual Residence] [Consent or Acquiesence]

In Hofmann v Sender,--- F.3d ----, 2013 WL 1955846 (C.A.2) the Petitioner–Appellee father initiated proceedings for return of his children to Canada. petitioner Adam Hofmann was a Canadian citizen. He was born, raised, educated, and continued to work in Montreal, Quebec. He was not a citizen of, nor did he have a visa to work in any other country. Respondent Abigail Sender was a United States citizen. She was born and raised in the United States and attended medical school beginning in 1999 at McGill University in Montreal, Quebec. She was formerly a permanent resident of Canada. At one time she applied for, but never received, Canadian citizenship. Hofmann and Sender met and began dating while they were residing in Montreal and serving as medical residents at McGill. Both parties earned medical degrees that were recognized as the equivalent of a comparable degree in the United States. Hofmann, however, was unable to work in the United States due to his immigration status. In Montreal, the parties attended the Spanish and Portuguese Synagogue. They were married there in February 2008 and lived together in Montreal as husband and wife until May or June of 2011. Their first son, R, was born in Montreal in January, 2009. After the baby's birth, Sender traveled to New York so that her family could help her care for the child. Id. In the fall of 2009, Hofmann took two months of unpaid leave in order to spend time with his wife and child at the home of his in-laws in New York. Id. At that time, Hofmann and Sender discussed their marital difficulties, including problems they were having with their families. They also discussed the possibility of having a second child and of relocating outside of Canada. Id. They took various trips to communities in New York and New Jersey in order to see whether any would make a suitable future home. They were particularly concerned about finding an Orthodox Jewish community where they could raise their family. The wife retained the children in New York on September 5, 2012,

The district court concluded that the parties' children were habitually resident in Canada; and although Hofmann had consented to the children's removal to the United States, that consent was a conditional one, contingent on his accompanying them and residing with them and Sender as a family in the United States. The district court found, therefore, that the parties' last shared intent with respect to the children's residence was for the children to reside in Canada. (citing Mota v. Castillo, 692 F.3d 108 (2d Cir.2012)). The district court also concluded that the children had not become so acclimated to New York that a return to Canada would be harmful to them,, and because the wrongful retention of the children under the Hague Convention occurred on September 5, 2012, when Sender had Hofmann served with divorce papers, the affirmative defense that the children were well settled in the United States did not apply. The district court also found that the affirmative defenses of consent and acquiescence did not apply. The court granted Hofmann's petition and ordered that the children be returned to Canada, enabling the Canadian courts to determine issues of parental custody. Subsequently, the Quebec Superior Court, Family Division issued an order granting temporary sole custody to the Respondent–Appellant Sender and directing that the children be returned to New York. A further hearing is scheduled in Montreal on May 23, 2013. The Quebec Superior Court awarded Petitioner–Appellee Hofmann visitation and phone access rights.

On appeal, the parties did not dispute that Hofmann had custody rights under Quebec law, which he was exercising at the time the children were retained by Sender. To determine which country is a child's country of habitual residence under the Hague Convention, the Second Circuit applied the two-part test set forth in Gitter v. Gitter. There it held that: "First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent." Gitter, 396 F.3d at 134.

Here, the district court determined, that the last shared intent of the parties was that the children would reside in Canada. Correlatively, the court also found that at the time the parties were transitioning from Montreal to New York, Hofmann only intended the children to reside habitually in New York if he was also resident in New York with his children and his wife, as a family. The district court's decision was amply supported by the record, Turning to the law applicable to the resolution of this issue on appeal it observed that in Mota it considered whether the father's retention of a child was wrongful under the Hague Convention when the mother's consent to the child coming to the United States was conditional, based on the mother's also being able to join the child and the father in this country. In that case the child, Elena Mota, lived with her mother in Mexico until approximately the age of three. Mota, 692 F.3d at 110. When Elena was six months old, her father had entered the United States illegally to find work. In the spring of 2010 the family decided to attempt to reunite in New York. Id. The plan was to pay to have Elena smuggled across the border. Id. The mother would then attempt to cross the border herself, and mother and child would travel together to New York. Id. Elena was successfully smuggled into the United States, but her mother was unable to cross the border. Id. Elena was reunited with her father, who proceeded to keep her in New York. He subsequently took up residence with another woman, and he stopped sending money to Mexico to support Elena's mother. Elena's father then refused to return her to Mexico, and her mother filed a petition pursuant to Article 3 of the Convention seeking her return. On appeal, it held that the record supported the district court's determination that the mother's consent to Elena's remaining in New York was conditioned on the mother, father and Elena's living in New York together. Acknowledging the effect of the unmet condition precedent, it affirmed the district court's determination that the last shared intent of the parents regarding Elena's residence was that she live in Mexico. For purposes of the Convention, therefore, Mexico was the "State in which the child was habitually resident." Hague Convention Art. 3.

The decision in Mota directly controlled the outcome in this case. As the district court found, "the petitioner has demonstrated by his testimony and his actions that he intended for the children to relocate to New York on the condition that he would join the household and continue to be the father to his children and the husband to his wife." Just as in Mota, "if the parents [here] did not agree that [the children] would live indefinitely in ... [the United States] regardless of [their father's] presence, it cannot be said that the parents ‘shared an intent’ " that New York would be the children's "state of habitual residence." Mota, 692 F.3d at 115. The district court properly determined under the Convention that the parties' last shared intention regarding the children's residence was that they live in Canada and for that reason the habitual residence of the children remained in Canada.

Turning to the second prong of the Gitter analysis, having concluded that the children were properly determined to be habitually resident in Canada, the court "inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' last shared intent." Gitter, 396 F.3d at 134. "[C]ourts should be ‘slow to infer’ that the child's acclimatization trumps the parents' shared intent." Id. As it noted in Mota, "[i]t would frustrate the objectives of the Convention if a parent or guardian could secure an advantage in an anticipated custody dispute merely by whisking the child away to a foreign land, and retaining her there long enough to amass evidence of the child's acclimatization to the new location." A finding that this standard is satisfied is therefore only appropriate "in ‘relatively rare circumstances' in which a child's degree of acclimatization is ‘so complete that serious harm ... can be expected to result from compelling his [or her] return to the family's intended residence." Id. It was clear that the children had not become so acclimatized to life in New York that returning them to Canada would be tantamount to removing them from the environment where their lives had developed. While, at this point, the children had resided in New York for over a year, they moved and changed communities within New York recently. There was no basis to conclude that the district court clearly erred in finding that the children were not so acclimatized to life in the United States that a return to Canada would be harmful to them.



Article 13 of the Convention provides that "the judicial or administrative authority of the requested State is not bound to order the return of the child if ... the person ... having care of the person of the child ... consented to or subsequently acquiesced in the removal or retention." The court found that although Hofmann initially consented to the children's removal to the United States, that consent was conditioned upon his accompanying them and residing in this country as a family with his children and wife. "Article 13(a) does not provide that if a parent consents to removal of the child for a period, under certain conditions or circumstances, that retention of the child beyond those conditions or circumstances is necessarily permissible." Because the condition on which Hofmann consented to his children moving to the United States was not met, there was no basis to conclude that he consented to Sender's retention of the children in the United States. The potential defense under Article 13 of the Convention had no application to the facts of this case.

Sender's reliance on the "now settled" exception contained in Article 12 of the Convention was similarly unavailing. Article 12 provides, in relevant part, that: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. By its terms, the "now settled" exception only applies where the child has been in the destination state for more than one year from the date of the wrongful removal or retention. The date of wrongful retention in this case was September 5, 2012, Because one year had not elapsed between the wrongful retention of the children and the institution of these proceedings under the convention, the district court's determination that the "now settled" exception did not apply was affirmed.

Vasconcelos v. Batista, 2013 WL 600200 (C.A.5 (Tex.)) [Brazil] [Age and Maturity]

In Vasconcelos v. Batista, 2013 WL 600200 (C.A.5 (Tex.)) Appellant Eduardo Henrique Vasconcelos petitioned for the return of his child, B.V., to Brazil.

B.V. was 13 years old at the start of district court proceedings in January 2011 and was now 15 years old. In 2005, B.V. was removed from her former place of residence, the State of Alagoas in Brazil, by her mother, Appellee Michelly De Paula Batista. Ms. Batista had primary custody over B.V. pursuant to a joint custody agreement with Mr. Vasconcelos. Ms. Batista and Mr. Vasconcelos were never married. Ms. Batista removed B.V. from Brazil without Mr. Vasconcelos's consent. After leaving Brazil, Ms. Batista moved with B.V. to Denton, Texas, where she married Rod Richards, who has been B.V.'s stepfather since.

The petition was brought before the District Court for the Eastern District of Texas. The hearing included an in camera interview between a magistrate judge and B.V., in which B.V. was represented by a guardian ad litem and in which she apparently stated her desire to remain in the U.S. and not to meet Mr. Vasconcelos. The District Court denied the petition. The Fifth Circuit affirmed.

The Fifth Circuit in a per curium opinion held that this appeal could be resolved under the Hague Convention's age and maturity exception, and it was unnecessary to discuss the threshold issue of whether Mr. Vasconcelos had established a prima facie case under the Convention. Like the district court, it assumed arguendo that Mr. Vasconcelos had custody rights under Brazilian law, and thus that he successfully established a prima facie case.

The Fifth Circuit observed that the Hague Convention provides that "[t]he judicial or administrative authority [considering a petition] may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention art. 13. This age and maturity exception is to be narrowly construed and must be shown by a preponderance of the evidence. England v. England, 234 F.3d 268, 272 (5th Cir.2000) (citing §§ 11601(a)(4), 11603(e)(2)(A)). It concluded that the district court's findings with respect to this exception were not clearly erroneous. Whether the child has reached an appropriate age and degree of maturity is a factual determination and thus subject to clear error review. See Dietz v. Dietz, 349 F. App'x 930, 934 (5th Cir.2009). "[G]iven the reliance on live oral testimony, ‘the clearly erroneous standard is particularly strong because the judge had the opportunity to observe the demeanor of the witness[es].’ " Id. (quoting United States v. Santiago, 410 F.3d 193, 197 (5th Cir.2005)). "The Convention does not set an age at which a child is automatically considered to be sufficiently mature, rather the determination is to be made on a case-by-case basis." Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 279 (3d Cir.2007). B.V.'s age of 13 at the start of district court proceedings is consonant with that of other children whom courts have found to be of sufficient age and maturity for the purposes of this exception. Mr. Vasconcelos's only cogent argument regarding B.V.'s age and maturity was that Ms. Batista unduly influenced B.V.'s opinion and tainted B.V.'s judgment. In particular, Mr. Vasconcelos contended that "over the approximately 5 years since the abduction, [Ms. Batista] told B.V. that Mr. Vasconcelos was violent towards her and that he hit her, ‘gradually’ adding more detail to the story as B.V. became ‘able to absorb and process according to her age.’ " Mr. Vasconcelos cited the Third Circuit, which stated that "[i]n making its determination, a court should also consider whether a child's desire to remain or return to a place is ‘the product of undue influence,’ in which case the ‘child's wishes' should not be considered." Tsai–Yi Yang, 499 F.3d at 279.

The Court held that Mr. Vasconcelos's argument could not prevail under a clear error standard. First, even if it accepted that there was some evidence that B.V. had a skewed perception of Mr. Vasconcelos, it was not convinced that that evidence rose to the level of undue influence such that the district court clearly erred in its age and maturity findings. Notably, there was no evidence that Ms. Batista coerced B.V. into objecting to return. Ms. Batista's testimony reflected that she was sensitive to B.V.'s youth and did not want to influence B.V.'s opinions too soon. Even if B.V.'s perception of her biological father was one-sided, that one-sidedness stemmed in great part from the fact that Mr. Vasconcelos never reached out to B.V. from the time she was taken from Brazil up until the start of these proceedings, although he knew B.V.'s whereabouts, knew how to contact her, and had authorization to travel outside Brazil.

The Fifth Circuit disagreed with Mr. Vasconcelos's suggestion that B.V.'s in camera interview was an improper basis for the district court's age and maturity findings. The interview was conducted by the magistrate judge, during which B.V. was represented by an attorney ad litem. After the interview, the magistrate judge found that [I]t is appropriate to take into account BV's views here. Although softspoken and understandably shaken by the prospect of leaving the United States, she demonstrated an understanding of the proceedings and of her right to state her preferences. She was a good student, demonstrated clear cognitive abilities, and stated a desire to remain with her mother and stepfather. The Court found that her wishes were another basis to deny Petitioner's request for her return to Brazil." These findings were perfectly reasonable, and Mr. Vasconcelos had not argued that the interview was somehow defective under Texas law.

The question of whether B.V. was of sufficient age and maturity was a fact-intensive inquiry. Mr. Vasconcelos gave the Fifth Circuit no reason to second-guess the district court, which had a unique "opportunity to observe [the child] in person."

The Court pointed out that even if B.V. was of sufficient age and maturity for her views to be taken into account, the age and maturity exception is not satisfied unless B.V. also objects to her return. Hague Convention art. 13. Although there was no case law directly on-point, it was logical to assume that the question of whether B.V. objected is fact-intensive, and thus the district court's finding that she objected was subject to clear error review. See de Silva, 481 F.3d at 1287. A child's "generalized desire" to remain in the United States is "not necessarily sufficient to invoke the exception"; rather, the child must "include particularized objections to returning to" the former country of residence. Tsai–Yi Yang, 499 F.3d at 279.

Mr. Vasconcelos argued that the Hague Convention requires B.V. to "clear[ly] object" to her return to Brazil. To show that B.V. did not clearly object, he cited the district court's statements that B.V. only "expressed an interest to remain here," and that B.V. only "stated a desire to remain with her mother and stepfather." Inasmuch as Mr. Vasconcelos sought to argue that the Hague Convention requires an explicit objection from B.V., the Court found that the case law did not support him. If found that the Tenth Circuit's decision in de Silva undercut his argument. In de Silva, the Tenth Circuit affirmed the district court's finding that the age and maturity exception applied. The court quoted approvingly the findings of the magistrate judge, who conducted an in camera interview with the 13–year–old child. At no point in de Silva did the child explicitly object to being returned to his country of former residence, namely Canada. Nevertheless, the Tenth Circuit found it sufficient that the child was mature and had expressed his preference for staying in the United States. Therefore, de Silva contradicted Mr. Vasconcelos's contention that the child's objection need be explicit. The facts in de Silva contrast with those in Tsai–Yi Yang, in which the Third Circuit affirmed the district court's decision to not apply the age and maturity exception because of the child's "generalized desire to remain in" the United States. 499 F.3d at 279. Here, B.V. has not expressed a mere generalized desire or preference to stay in the United States. During her in camera interview with the magistrate judge, in which she was represented by an attorney ad litem, she specifically expressed that she did not want to visit her father while he was in the United States. She also "demonstrated an understanding of the proceedings and of her right to state her preferences" and she "stated a desire to remain with her mother and stepfather." Further, B.V.'s express desire to stay with her mother and stepfather in the United States does not derive merely from some generalized affinity for this country after having lived here a long time. Rather, she had particularized ties to the United States, whereas she had virtually no ties to Brazil and barely any knowledge of Mr. Vasconcelos, who had done nothing to communicate with her since she left Brazil. It was reasonable for the district court to conclude from these facts that B.V. did not simply "like" being in the United States, but specifically wished to stay here and to not be with Mr. Vasconcelos. It therefore concluded that the district court did not err in finding that B.V.'s statements constituted an objection within the meaning of the age and maturity exception.

Chafin v Chafin, --- S.Ct. ----, 2013 WL 598436 (U.S.) [Scotland][ Federal & State Judicial Remedies - Appeals - Mootness]

 In Chafin v Chafin, --- S.Ct. ----, 2013 WL 598436 (U.S.) Petitioner Jeffrey Lee Chafin was a citizen of the United States and a sergeant first class in the U.S. Army. While stationed in Germany in 2006, he married respondent Lynne Hales Chafin, a citizen of the United Kingdom. Their daughter E.C. was born the following year. Later in 2007, Mr. Chafin was deployed to Afghanistan, and Ms. Chafin took E.C. to Scotland. Mr. Chafin was eventually transferred to Huntsville, Alabama, and in February 2010, Ms. Chafin traveled to Alabama with E.C. Soon thereafter, Mr. Chafin filed for divorce and for child custody in Alabama state court. Towards the end of the year, Ms. Chafin was arrested for domestic violence, an incident that alerted U.S. Citizenship and Immigration Services to the fact that she had overstayed her visa. She was deported in February 2011, and E.C. remained in Mr. Chafin's care for several more months. In May 2011, Ms. Chafin initiated this case in the U.S. District Court for the Northern District of Alabama. She filed a petition under the Convention and ICARA seeking an order for E. C.'s return to Scotland. On October 11 and 12, 2011, the District Court held a bench trial. Upon the close of arguments, the court ruled in favor of Ms. Chafin, concluding that E. C.'s country of habitual residence was Scotland and granting the petition for return. Mr. Chafin immediately moved for a stay pending appeal, but the court denied his request. Within hours, Ms. Chafin left the country with E. C., headed for Scotland. By December 2011, she had initiated custody proceedings there. The Scottish court soon granted her interim custody and a preliminary injunction, prohibiting Mr. Chafin from removing E.C. from Scotland. In the meantime, Mr. Chafin had appealed the District Court order to the Court of Appeals for the Eleventh Circuit. In February 2012, the Eleventh Circuit dismissed Mr. Chafin's appeal as moot in a one-paragraph order, citing Bekier v. Bekier, 248 F.3d 1051 (2001). In Bekier, the Eleventh Circuit had concluded that an appeal of a Convention return order was moot when the child had been returned to the foreign country, because the court "became powerless" to grant relief. 248 F.3d, at 1055. In accordance with Bekier, the Court of Appeals remanded this case to the District Court with instructions to dismiss the suit as moot and vacate its order. On remand, the District Court did so, and also ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs, attorney's fees, and travel expenses. Meanwhile, the Alabama state court had dismissed the child custody proceeding initiated by Mr. Chafin for lack of jurisdiction. The Alabama Court of Civil Appeals affirmed, relying in part on the U.S. District Court's finding that the child's habitual residence was not Alabama, but Scotland.

 The Supreme Court in an opinion for a unanimous Court by Chief Justice Roberts held that father's appeal from the order entered by the district court was not rendered "moot" by fact that mother had returned with daughter to Scotland, abrogating the Eleventh Circuit opinion in Bekier v. Bekier, 248 F.3d 1051. It held that a case "becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. As long as the parties have a concrete interest, however small, in the outcome of t he litigation, the case is not moot. Because the Chafins continued to vigorously contest the question of where their daughter will be raised, this dispute was very much alive. This case did not address "a hypothetical state of facts," ,and there continued to exist between the parties "that concrete adverseness which sharpens the presentation of issues. Mr. Chafin sought typical appellate relief: reversal of the District Court determination that E. C.'s habitual residence was Scotland and, upon reversal, an order that E.C. be returned to the United States. The question was whether such relief would be effectual. In arguing that this case was moot because the District Court has no authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers, Ms. Chafin confused mootness with the merits. Mr. Chafin's claim for re-return could not be dismissed as so implausible that it is insufficient to preserve jurisdiction, and his prospects of success are therefore not pertinent to the mootness inquiry. As to the effectiveness of any relief, even if Scotland were to ignore a re-return order, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin and may command her to take action under threat of sanctions. She could decide to comply with an order against her and return E.C. to the United States. Enforcement of the order may be uncertain if Ms. Chafin chose to defy it, but such uncertainty does not typically render cases moot.

 Mr. Chafin also sought vacatur of the District Court's expense orders. That too is common relief on appeal, and the mootness inquiry comes down to its effectiveness. In contending that this case is moot due to Mr. Chafin's failure to pursue an appeal of the expense orders, which were entered as separate judgments, Ms. Chafin again confused mootness with the merits. Because there is authority for the proposition that failure to appeal such judgments separately does not preclude relief, it is for lower courts at later stages of the litigation to decide whether Mr. Chafin is in fact entitled to the relief he seeks. That relief would not be " 'fully satisfactory,' " but "even the  availability of a 'partial remedy' is 'sufficient to prevent [a] case from being moot.

 Justice Roberts noted that manipulating constitutional doctrine and holding these cases moot is not necessary to achieve the ends of the Convention and ICARA, and may undermine the treaty's goals and harm the children meant to be protected. If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. Such routine stays would
 conflict with the Convention's mandate of prompt return. He stated that Courts should apply the four traditional stay factors in considering whether to stay a return order: " '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.' " Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child's best interests. He pointed out that “Importantly, whether at the district or appellate court level, courts can and
 should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so....Cases in American courts often take over two years from filing to resolution; for a six-year-old such as E. C., that is one-third of her lifetime. Expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child.

 The judgment of the United States Court of Appeals for the Eleventh Circuit was vacated, and the case was remanded for further proceedings consistent with the opinion.

Ozaltin v Ozaltin, 708 F.3d 355 (2d Cir. 2013) [Turkey] [Rights of Access] [Attorney Fees]

 In Ozaltin v Ozaltin, 708 F.3d 355 (2d Cir. 2013), in December 2010, when the Ozaltins stopped cohabitating in Turkey, the Mother took the children to reside with her in New York City. ) Petitioner-appellee Nurettin Ozaltin ("the Father") brought suit seeking the return of his two minor children to Turkey, as well as an order enforcing his rights under Turkish law to visit the children as long as they stayed in the United States with their mother, respondent-appellant Zeynep Tekiner Ozaltin ("the Mother"). In an order dated June 5, 2012, the district court ordered that the Mother return the children to Turkey by July 15, 2012; allow the Father to visit with the children in the United States on alternating weekends prior to their return to Turkey (the "access order") in compliance with a prior order of a Turkish court; and (3) pay the Father's necessary expenses in bringing the suit (the "costs award"). In re S.E.O., 873 F.Supp.2d 536, 546 (S.D.N.Y.2012). Although the Mother returned the children to Turkey on July 15, 2012, she appealed from the District Court's order arguing that her removal of the children from Turkey in 2011 was not "wrongful" under the terms of the Hague Convention because it was authorized by the Third Family Court in Uskudar (the "Third Family Court")-a Turkish court that has been handling the Ozaltins' divorce and child-custody proceedings since February 9, 2011; that the District Court lacked jurisdiction to consider the Father's claim for visitation; and that awarding necessary expenses would be improper both because she should prevail on the merits with respect to the return order, and because of the particular circumstances of this suit.

 The Second Circuit affirmed the District Court's return order and vacated the costs award. It held that (1) The petitioner met his burden of showing that he retained custody rights under Turkish law, and that respondent ( Mother) removed the children from Turkey in interference with his exercise of those rights. (2) Federal law creates a private right of action to enforce access rights protected under the Hague Convention. See 42 U.S.C. § 11603(b). (3) When a district court considers awarding costs to a prevailing petitioner who obtains a return order under the Hague Convention, the court shall award "necessary expenses" relating to the action unless doing so would be "clearly inappropriate." 42 U.S.C. § 11607(b)(3). This standard is discretionary in
 nature and is governed by general equitable principles. (4) In the circumstances of this case, an award of all necessary expenses would be "clearly inappropriate."It remanded the cause to the District Court to determine appropriate costs in the first instance.

 Nurettin and Zeynep Ozaltin (the Father and Mother, respectively) were dual citizens of Turkey and the United States. They were married in 2001 and had two daughters, S.E.O. (age 9) and Y.O. (currently, age 7), who were also dual citizens of Turkey and the United States. Prior to December 2010, the children resided primarily in Turkey, where they attended school. The Mother alleged that in December 2010, she and the Father got into a heated argument about his purported drinking problem, and that during that argument he threatened her and told her to take their two children and leave. Within a day, the Mother and the children flew to New York City, where the Mother had family. The Mother alleged that during a layover in Europe, she spoke on the phone with the Father, who angrily told her that she and the children should stay in the United States. About two weeks later, on January 7, 2011, the Father filed an application with the Turkish Ministry of Justice seeking the return of the children to Turkey pursuant to the Hague Convention. On February 9, 2011, the Mother initiated divorce proceedings in the Third Family Court in Uskudar. In May 2011, the Father petitioned the Third Family Court for "the court to provisionally grant [him] the parental custody of the children." In the alternative, he requested "an order that [would] require [ ] the children to be brought to Turkey and [would] grant[ ] [him] visitation rights." On May 13, 2011, the Third Family Court declared that the Father's "request for grant of provisionary parental custody is rejected at this point," but it granted him "the possession of the children from 10 am on Saturdays until 12 pm on Sundays every first and third weeks of the month if he goes to the USA." The Father exercised his visitation rights in New York several times between May and August 2011. On March 30, 2012, the Third Family Court rejected another request by the Father for temporary custody, but it ordered that he be allowed to visit with the children on alternating weekends in the United States pursuant to the same visitation schedule that the court had ordered on May 13, 2011.

 On March 30, 2012 the Father filed this action under 42 U.S.C. § 11603(b), seeking an order enforcing his visitation rights, pursuant to Article 21 of the Hague Convention. Article 21 provides:

 An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

 The father also sought an order requiring the Mother to return the children to Turkey, pursuant to Article 12 of the Hague Convention; and a costs award in an amount to be determined at the end of the litigation, pursuant to Article 26 of the Hague Convention. Article 26 provides, in relevant part:

 Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

 In April and May of 2012 the District Court held evidentiary hearings. Both the Father and the Mother proffered testimony by Turkish legal experts as to the parties' respective custody rights. The District Court issued it’s a memorandum opinion and order on June 5, 2012, requiring the Mother to (1) comply with the Turkish court's visitation order, (2) return the children to Turkey by July 15, 2012, and (3) pay the Father for any "necessary expenses" incurred in connection with the suit.

 On July 15, 2012, the Mother returned the children to Turkey pursuant to the District Court's order. Since then, Turkish courts have issued several orders pertinent to questions raised in this appeal. On September 14, 2012, the Court of Appeals granted the Father's unopposed motion to take judicial notice of these recent Turkish orders.

 The Court of Appeals observed that for the purposes of this appeal, the pivotal issue was whether the Third Family Court actually exercised its authority to award custody to one of the parties, either by granting sole custody rights to the Mother, or by redefining the parents' respective rights such that the Mother could take the
 children to the United States without breaching the Father's custody rights. (Turkish Civil Code available at http:// www. hcch. net/ upload/ abduct 2011 cp_ tr 1. pdf (website of the Hague Conference on Private International Law). It found that the district Court's conclusion that the Father retained custody rights under Turkish law was well-founded. The Turkish Ministry of Justice-the Turkish "Central Authority" within the meaning of the Hague Convention submitted a letter to the U.S. Department of State explaining that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use[d] to exercise those rights." The Ministry of Justice explained that the Mother, therefore, was "in breach of [the Father's] rights of [ ] custody under the law of Turkey in which the children were habitually resident before the removal." The Mother disputed this conclusion, arguing that the Ministry of Justice was not aware of the various orders of the Third Family Court in Uskudar purportedly granting (or at least endorsing) her custody of the children. Be that as it may,
 a removal under the Hague Convention can still be "wrongful" even if it is lawful. The evidence offered at trial showed that the Father retained custody rights-including the right to determine the children's residence-under Turkish law, even if the Mother had primary custody of the children. Most importantly, the Mother did not point to an order of the Third Family Court explicitly recognizing her sole custody of the children, or explicitly recognizing her right to remove the children to the United States without breaching the custody rights of the Father. The Court held that he children were wrongfully removed under the Hague Convention, and it affirmed the District Court's return order.

 The District Court awarded to the Father "any necessary costs ... incurred in connection with this action. The Mother argued that "federal courts lack subject matter jurisdiction over claims seeking to enforce rights of access." She claimed, petitioners may seek to enforce rights of access only in state court or through the State Department, which is the United States's designated "Central Authority" under the Hague Convention. The Court found that the Mother's argument was not jurisdictional in nature but instead goes to whether 42 USC § 11603(b) creates a federal right of action. Disagreeing with the Fourth Circuit, which held that it does not, (Cantor v. Cohen, 442 F.3d 196 (4th Cir.2006), it found that the statutory basis for a federal right of action to enforce access rights under the Hague Convention was in the implementing legislation. According to the enacting legislation, "[t]he courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the [Hague] Convention." 42 U.S.C. § 11603(a). The statute then announces the actions falling within that category: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.. 42 USC § 11603(b). The statute provides for the relevant burden of proof in access cases: "A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence ...in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights." 42 USC § 11603(e)(1)(B) These statutory provisions straightforwardly establish that a petitioner may "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child," and that "United States district courts shall have concurrent original jurisdiction" over such actions. Moreover, § 11603(e)(1)(B) underscores that actions arising under the Convention include "an action for arrangements for organizing or securing the effective exercise of rights of access." Accordingly, s 11603 unambiguously creates a federal right of action to secure the effective exercise of rights of access protected under the Hague Convention. The Hague Convention explicitly recognizes that if a Contracting State provides a judicial forum, petitioners seeking to enforce access rights may initiate judicial proceedings directly: This Convention shall not preclude any person ... who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention. Hague Convention, art. 29. Thus, initiating a petition with a State's Central Authority "is a nonexclusive remedy" for enforcing access rights. Article 29 permits the person who claims a breach of custody or access rights, as defined by Articles 3 and 21, to bypass the Convention completely,
 by invoking other applicable laws or procedures, such as provisions in ICARA. In sum, even though not required under Article 21, federal law in the United States provides an avenue for aggrieved parties to seek judicial relief directly in a federal district court or an appropriate state court.

 The Court of Appeals observed that the Hague Convention provides that "[u]pon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child ... to pay necessary expenses incurred by ... the applicant." Hague Convention, art. 26. These "necessary expenses" may include "travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child." ICARA provides that: Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. Although Article 26 of the Hague Convention provides that a court "may" award "necessary expenses" to a prevailing petitioner, § 11607(b)(3) shifts the burden onto a losing respondent in a return action to show why an award of "necessary expenses" would be "clearly inappropriate." Nonetheless, § 11607(b)(3) retains what we the Court had previously described as the "equitable" nature of cost awards. Accordingly, a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when "attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion." There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the relevant considerations. It vacated the District Court's award of "any necessary costs [that the Father] incurred in connection with this action," In re S.E.O., 873 F.Supp.2d at 546, because the Mother had a reasonable basis for removing the children to the United States. It also had concerns that, contrary to the spirit of the Hague Convention, the Father may have engaged in forum shopping with respect to certain aspects of the suit. While the Turkish court orders did not justify the Mother's removal of the children to the United States, they nonetheless suggested that her actions did not "run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes." In its view, an award of full expenses was unwarranted in light of the Mother's reasonable basis for thinking that she could remove the children from Turkey
 

Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) [Italy] [Grave Risk of Harm]

In Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) Emiliano Ermini ("Petitioner"), an Italian citizen, petitioned the seeking the return of his two sons to Italy alleging that the two boys, E.E., age 9, and D.E. age 7, who were Italian citizens, had been retained in the United States by their mother, Respondent Viviana Vittori ("Respondent"), also an Italian citizen, without Petitioner's consent. After a trial the district Court denied the petition without prejudice to renewal if D.E. was not able to continue with his current CABAS program and the Italian court system issued a final order requiring the return of the children to Italy. Petitioner's request for an award of legal fees and costs and expenses was also denied.

Petitioner and Respondent, the parents of E.E. and D.E., were married in Italy in July 2011. Respondent had initiated divorce proceedings in Italy and the parties were now legally separated. The family came to the United States in August 2011 in connection with efforts to secure effective medical and rehabilitative treatment for D.E., who was autistic. D.E. was diagnosed with autism on March 14, 2008, when he was approximately two years old. Petitioner and Respondent were both committed to helping D.E. and took him to various doctors in Italy as well as abroad in Scotland for medical treatment. When Petitioner and Respondent's own resources were inadequate to pay for the treatments, they solicited donations through a website and a blog about D.E. Dr. Antonucci was D.E.'s primary treating professional in Italy from December of 2008 until May of 2010. One of the treatments that Dr. Antonucci recommended for D.E. was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Velletri, Italy. He also treated D.E. for gut inflammation, heavy metal intoxication and viral issues believed to be underlying physical causes of autism. D.E.'s "support teacher" at his school in Italy did not know any specific techniques for treating children with autism. On their own initiative, Petitioner and Respondent attended training in Applied Behavioral Analysis ("ABA") techniques at a private institution, Pianeta Autismo, and Respondent attended three additional courses. With the permission of the principal of D.E.'s school, Respondent spent two hours each day at D .E.'s school, instructing the support teacher in the ABA techniques. Petitioner and Respondent also consulted with another doctor in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for D.E. According to Respondent's expert, Dr. Fiorile, ABA therapy is "the most common treatment" for children with autism in the United States and it can have an enormous impact on the life of an autistic child Dr. Antonucci also endorsed ABA treatment. Respondent estimated that she personally provided 70-80% of D.E.'s thirty to forty weekly hours of ABA treatment while the family were living in Italy. Professional ABA treatment would have been preferable but very expensive. The Italian national health care system covered 90 minutes a week of psychomotility therapy for D.E. for the first year after his autism diagnosis, with an extra 90 minutes of speech therapy during the second year, but did not pay for other types of treatment or therapy for D.E. Both Respondent and Petitioner were unhappy with the options for D.E.'s schooling and therapy in Italy as they did not see results in D.E.'s developmental progress. They began to look elsewhere for treatment options, and in October of 2009, the family traveled to Florida for a week, at the recommendation of Dr. Antonucci, to consult with an American doctor about therapies available for D.E. in the United States. In April or May of 2010, Petitioner and Respondent met Dr. Giuseppina Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a practice in Suffern, New York, who focused on children with special needs. In August of 2010, Petitioner and Respondent traveled with E.E. and D.E. to Suffern, New York, so that Dr. Feingold could assess and begin treating D.E. The family stayed with Respondent's first cousins, John and Patricia Tempesta, at their home in Ridgefield, Connecticut. During that August 2010 visit, they met other parents at Dr. Feingold's clinic, who told them about provisions for special needs children at the local schools in the Suffern area. Both Respondent and Petitioner were impressed
by the treatment options available for D.E. in the United States. Around this time, Petitioner and Respondent began to formulate a plan for the family to move to the United States for two or three years, during which time Petitioner and Respondent could decide if it would be possible and appropriate to make a permanent move to the United States. Meanwhile, Petitioner began meeting with Marcello Russodivito, to whom he had been introduced through one of Mr. Tempesta's contacts, about potentially investing in Mr. Russodivito's restaurant so that he could obtain a business visa for himself and derivative ones for his family, which would allow them to pursue treatment for D.E. in the United States. Mr. Russodivito understood that Petitioner planned to fund the restaurant investment by selling the family's house in Italy.

On September 2, 2011, Petitioner and Respondent co-signed a one-year lease for a house near Mr. Russodivito's restaurant. On September 15, 2011, Respondent, E.E. and D .E. moved into that house. In October, Mr. Russodivito arranged for one of his employees, Pasquale Ruggiero, to share the house with them. In September and November, E.E. and D.E. were enrolled in the local public schools. In an email to Respondent at the time, Petitioner said that they should ship "books, clothing, any furniture we can't sell, ornaments, dishes, sheets, blankets" in a cargo container from Italy to the United States. Petitioner also researched the cost of shipping D.E.'s hyperbaric oxygen chamber. On September 13, 2011, Petitioner wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of "explor[ing] the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States." Respondent traveled with the two children to Italy to renew their United States visas in November 2011 and then the children and Respondent returned to Suffern, while Petitioner went to Italy to finish settling the family's affairs. Petitioner did not return to the United States until December 2011.

Meanwhile, on September 20, 2012, Petitioner applied to the Italian court for an order directing the Respondent to return with the children to Italy and provisions for visitation with the children. With only Petitioner in attendance, the court in Velletri ordered Respondent to return to Italy with the children and also ordered temporary measures including that Petitioner and Respondent would live separately but share parental authority; that Respondent and the children would live in the family home; that Petitioner could visit 8–12 hours per week; and that Petitioner would pay spousal and child support of 1,600 Euros per month. At the time of trial, Respondent had not complied with the Italian court's order to return to Italy with the children, nor had there been visitation or any other contact between Petitioner and the children. Respondent appealed the Velletri Court's order and, on April 5, 2013, the Court of Appeals in Rome vacated several provisions of the September 20, 2012, Order and granted Respondent exclusive custody of the children. The April 5, 2013, Order, also withdrew the Velletri Court's prior order requiring that Respondent return to Italy, revoked the award of the family home to Respondent, and revoked the Petitioner's visiting rights and rights of access to the children. Although the April 5, 2013, Order provided Respondent with exclusive custody of the children, it did not necessarily moot Petitioner's application to the district Court because it was a temporary order, which appeared to have been designed, at least in part, to conform to Family Court protective orders in the United States, which are were in effect until 2014. It expressly contemplated further investigative and adjudicative proceedings in the lower court.

Petitioner again left for Italy in early January 2012, following an altercation with Respondent . The two children had not left the United States since November of 2011, but Respondent left the country again in April 2012, to attend court proceedings in Italy. On December 1, 2012, Respondent and the two children moved to their current residence in Suffern with Mr. Ruggiero. Petitioner never relocated to the United States.

D.E. was severely autistic and had only a limited capacity for speech. He did not appear in court. Respondent and Mr. Ruggiero took care of feeding D.E., grooming him and ensuring that he was supervised and occupied. According to Respondent and to Dr. Fiorile, D.E. had significantly progressed in his school environment in the United States and was moving closer to being able to lead an independent life. When he first began school in the United States, D.E.'s test results were far below average; at age six, he presented with the fine motor skills of a three year old. Dr. Fiorile opined that D.E. performed poorly on the testing because his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS program, which D.E. currently attended at a school in Stony Point, New York, offered the best ABA curriculum available to autistic children. Dr. Fiorile testified that D.E. had "one-to-one instruction" throughout the day and had made "exceptional progress" Dr. Fiorile explained that the high level of intervention in D.E.'s current classroom setting was the key to his success. Dr. Fiorile further opined that D.E. required a program like the one in which he was currently enrolled to continue to making meaningful progress in, among other things, cognition, language, social and emotional skills. Dr. Fiorile further opined that, if D.E. "were to be removed from this educational program and not provided this intensity of educational programming that's being provided by highly skilled and trained professionals" he will face "a severe loss of the skills he has successfully developed since beginning in CABAS ...." (“CABAS” is an acronym for Comprehensive Application of Behavioral Analysis to Schooling and it is “an intensive, data-driven specialized ABA program.” ) While the United States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of fewer than twenty in Italy. Dr. Fiorile concluded in her January 11, 2013, Report, admitted into evidence at trial, that if D .E. was separated from his CABAS program, he "will most certainly fail to make the same level of progress and will, without doubt, demonstrate significant skill regression" and that it would be "extremely harmful" to return him to Italy at this time. The Court found that separating D.E. from the CABAS program, while it remained available to him, would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.

Respondent testified that she and the children did not currently have legal immigration status in the United States, as they overstayed their visas in April of 2012. In October or November of 2012, Respondent applied for a visa for herself and the children on the basis of the domestic abuse that she suffered. Her application was currently pending.

The district court found that Petitioner and Respondent intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatments would be pursued for D.E., and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family's ties to Italy.


The court concluded that the children's habitual residence for Hague Convention purposes at the time of their retention in the United States was Italy. The Court took judicial notice of Title IV, Italian Civil Code of Law, Art. 316 ("[a] child is subject to the authority of its parents until majority ... or emancipation. The authority is exercised by both parents by mutual agreement") and Title IV, Italian Civil Code of Law, Art. 144 ("[t]he spouses agree between them the pattern of family life and fix the residence of the family according to the requirements of both and to those prevailing for the family. Each of the spouses has the authority to implement the agreed pattern"). Thus, Petitioner had rights of custody under Italian law in April 2012, when the retention of the children in the United States began. It also found that the Petitioner had been exercising his rights and the he had established a prima facie case for return.

Nevertheless, the district court found by clear and convincing evidence that, because D.E. was severely autistic, he faced a grave risk of harm if he had to return to Italy, as the return would severely disrupt and impair his development. It observed that in this Circuit, courts have emphasized the severity of the psychological or physical harm required under the "grave risk of harm" affirmative defense. See, e.g., Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299 JG, 2005 WL 67094, at *6 (E.D.N.Y. Jan.13, 2005) ("[t]here is a spectrum of harms a repatriated child may suffer. At one end 'are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation' "). Because "returning a child is likely to present adjustment concerns in almost every Convention case," the Court should examine whether the child is likely to "suffer
long-term permanent harm if returned." In re Lozano, 809 F.Supp.2d at 222.

D.E. had the fine motor skills of a child half his age when he first came to the United States. He was enrolled in a premier ABA school program and had made significant developmental progress. Dr. Fiorile had proferred credibly that, if D.E. left the Stony Point CABAS program even temporarily, he would face a significant regression in his skills and that without such an intensive, structured program, D.E. would not develop the cognitive, language, social, emotional and independent living skills that he was likely to acquire through such a program. Petitioner did not present any testimony controverting Dr. Fiorile's considered assessment. Respondent had also proven that there was a significant lack of resources in Italy for treating autism as compared to those available in the United States. D.E. had multiple doctors in Italy who were involved in his care including, Dr. Nicola Antonucci and Dr. Claudia Lerz. However, he met with most of these doctors infrequently and none of them were able to provide the intensive behavioral instruction that D.E. had been able to receive in the United States. There was no indication that D.E. could ever obtain the treatment and resulting positive prognosis that he has gained through the CABAS program were he to return to Italy. The Court found that the predicted deterioration in D.E.'s cognition, social skills and self-care if D.E. was separated from the CABAS program, to which Dr. Fiorile had testified, constituted psychological and physical harm sufficient to establish the "grave risk of harm" affirmative defense. As even a brief separation from the CABAS program would likely lead to a severe regression in D.E.'s progress, Respondent had shown by clear and convincing evidence that returning D.E. to Italy and separating him from the CABAS program posed a grave risk of harm to D.E. and would place him in an intolerable situation.

The testimony at trial established by clear and convincing evidence that E.E. and D.E. had a loving and close relationship and enjoyed spending time in each other's company. It was also established that E.E. helped his mother in caring for his brother. The district court observed that Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention. See, e.g., Blondin, 78 F.Supp.2d 283, 291 (S.D.N.Y. Jan.12, 2000) (declining to separate children because "children's relationships with their siblings are the type of intimate human relationships that are afforded a substantial measure of sanctuary from unjustified interference by the state") (quoting Aristotle P. v. Johnson, 721 F.Supp. 1002, 1005-06 (N.D.Ill.1989)); Broca v. Giron, No. 11 CV 5818(SJ)(JMA), 2013 WL 867276, at *9 (E.D.N.Y. Mar. 7, 2013) (deciding not to "further fracture the family unit" and separate the siblings). D.E. would face a significant disruption of his routine and general happiness were his older brother to return to Italy. Such a separation was also likely to harm E.E., since the one parent with whom he had a good relationship would have to remain in the United States to care for D.E. Having found that D.E. would face a grave risk of harm if separated from the CABAS program and repatriated to Italy, the Court would not separate the two brothers. Therefore, the Petition was denied as to both children, without prejudice to renewal if D.E. was no longer able to participate in the CABAS program and if the Italian court system issued a final order requiring the return of the children to Italy.

Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013) [Poland] [Federal & State Judicial Remedies] [Well Settled]

In Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013)(not selected for publication in the Federal Reporter) Respondent Yashmun Filipczak, the Mother, appealed from the judgment of the United States District Court for the Southern District of New York finding that Poland was the country of habitual residence for the Mother's two minor children and ordering the children's return to Poland. Petitioner Wojciech Filipczak, the Father, brought the case against her under the International Child Abduction Remedies Act (“ICARA”). At trial, the Mother did not contest that she had wrongfully removed the children from Poland, but argued that she qualified for two exceptions to the Hague Convention's repatriation requirement: (i) that the children would face “grave risk” to their well being in Poland, Hague Convention, art. 13(b), and (ii) that the children were “well settled” in the United States, Hague Convention art. 12. In a decision and order dated December 23, 2011, the United States District Court for the Southern District of New York rejected the Mother's contentions and ordered that the children be returned to Poland.


The Second Circuit Court of Appeals affirmed. While the Mother was represented by counsel in the District Court, she appears pro se on appeal. Thus, it construed her submissions to the Court liberally and interpret them to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The Mother raised several arguments on appeal, all of which were without merit. First, she claimed that her removal of the children from Poland was not wrongful because she was forced to leave Poland due to the expiration of her visa. The Mother, however, failed to raise this argument before the trial court. Because the Mother gave no justification for her failure to make this argument below, the Court would not consider it for the first time on appeal. Bogle–Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). She also alleged a number of defects in the evidence presented to the District Court, including failure to authenticate e-mails between her mother and the Father, bias on the part of the guardian ad litem, and failure to conduct cross-examination of several witnesses. These arguments were also presented for the first time on appeal, without any explanation as to why they were not raised below, and the Court refused to consider them for the same reasons.

Finally, the Mother argued that the children had stronger ties to the United States than they did to Poland, and therefore should be permitted to remain. It held that this misconstrues Article 12. The standard under that provision does not call for determining in which location the child is relatively better settled, but rather for determining whether the child has become so settled in a new environment that repatriation would be against the child's best interest. Blondin, 238 F.3d at 164. The Mother made no such showing.

Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053 (C.A.1 (Puerto Rico)) [Puerto Rico] [Federal & State Judicial Remedies - Bond] [Rights of Custody]

In Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053 (C.A.1 (Puerto Rico)) Lisandro Patrick appealed a decision of the United States District Court for the District of Puerto Rico dismissing his petition for the return of his child under the Hague Convention and the district court's order that he post a bond to proceed with the case. In March 2012, Rivera absconded to Puerto Rico with her children. When Patrick discovered that Rivera had taken her children to Puerto Rico and did not intend to return to the United Kingdom, he filed a petition for the return of L.N.R. in the United States District Court for the District of Puerto Rico under the Hague Convention. The petition alleged that Rivera wrongfully removed L.N.R. from her habitual residence, the United Kingdom. Patrick did not petition for the return of Rivera's other child because he was not the child's biological father. On the eve of trial, October 11, Rivera moved to dismiss Patrick's petition under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Rivera argued in part that removal of a child is "wrongful" under the Hague Convention only if "it is in breach of [a person's] rights of custody," Hague Convention art. 3, and that Patrick had no rights of custody under the Convention because he was not registered as L.N.R.'s father in her birth certificate. The magistrate judge granted Rivera's motion to dismiss on the ground that Patrick never presented his affidavit of paternity to Puerto Rico's Vital Statistics Registry. Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.P.R. Nov. 8, 2012).

 The Court of Appeals observed that Patrick had to allege facts sufficient to show that he has "rights of custody... under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention art. 3. Patrick alleged in his petition that L.N.R.'s habitual residence was the United Kingdom. For purposes of this appeal, Rivera did not dispute this allegation. Therefore, Patrick's rights of custody were determined with respect to United Kingdom law. "Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child." Children Act, (1989) § 2(1). On its face, this provision would appear not to apply to Patrick and Rivera, who married after L.N.R.'s birth, but "[r]eferences in this Act to a child whose father and mother were ... married to each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning)."Id. § 2(3). That section states that "references to a person whose father and mother were married to each other at the time of his birth include ... references to any person to whom subsection (3) below applies." Family Law Reform Act, (1987) § 1(2). Subsection (3) applies to "any person who ... is a legitimated person within the meaning of section 10 of [the Legitimacy Act 1976]."Id. § 1(3). That section defines "legitimated person" to include "a person legitimated or recognised as legitimated ... under section 2 or 3 above," Legitimacy Act, (1976) s 10(1), and Section 3 of the Legitimacy Act 1976 provides that where the parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of the marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the date of the marriage. ( The National Archives of the United Kingdom made these statutes available at http://www.legislation.gov.uk/) Based on these statutes, it concluded (as did the district court) that L.N.R.'s removal was wrongful under the Hague Convention if L.N.R. became legitimated under Puerto Rico law by virtue of Patrick's marriage to Rivera. With his petition, Patrick filed a letter from the International Child Abduction and Contact Unit (a unit of Ministry of Justice's Official Solicitor) stating that "[t]he parents are married to each other and therefore both have parental responsibility for [L.N.R.], pursuant to Section 2(1) of the Children Act of 1989.

 The Court of Appeals noted that tor more than a century, Puerto Rico law has provided that a child born under the same circumstances as L.N.R. is legitimated by the subsequent marriage of her parents. When Spain ceded Puerto Rico to the United States in 1898, the Spanish Civil Code provided that "natural children," defined as children born out of wedlock to parents who could have married each other at the time of conception, may be legitimated by the subsequent marriage of their parents. Puerto Rico's Civil Codes of 1902 and 1911 contained similar laws. Puerto Rico's current law was the same, except that it no longer requires that a child's parents be eligible to marry each other at the time of the child's conception. Despite the clear language of the statute, the district court held that Patrick's marriage to Rivera did not legitimate L.N.R. under Puerto Rico law because Patrick did not present his affidavit of paternity to the Vital Statistics Registry of Puerto Rico. The court stated that a child born out of wedlock "will not be automatically considered as begotten by" a man and woman who later marry, unless they register the child as theirs.” Patrick, 2012 WL 5462677, at *6 (citing Ramos v. Rosario, 67 P.R.R. 641 (1947)). Neither opinion on which the district court relied adequately supported its decision. The 1911 Civil Code was superseded by laws that expand the range of ways in which a parent can acknowledge a child and the Supreme Court of Puerto Rico has held that under current law, "[t]he father, or in his default, his heirs, may acknowledge in any way their children, expressly or impliedly, regardless of the dates or circumstances of their births and for all legal purposes." Because Patrick needed only to acknowledge L.N.R. "in any way," his affidavit acknowledging L.N.R. as his daughter sufficed to establish that he was her father. Because Patrick was L.N.R.'s father, his marriage to Rivera legitimated L.N.R. Patrick alleged in his petition that he was the father of L.N.R ., Rivera admitted this allegation in her answer, and no one else challenged Patrick's paternity. It held that Patrick's marriage to Rivera legitimated L.N.R. under Puerto Rico law. As a result, Patrick had "parental responsibility" for L.N.R. under United Kingdom law, which meant that he had "rights of custody" under the Hague Convention. The district court erred when it dismissed Patrick's petition on the grounds that he did not have rights of custody.

 The district court ordered Patrick to pay a $10,000 bond, stating that "[t]his bond will serve not only as a non-resident bond, but shall also respond to any damages that Respondent may incur should Petitioner not prevail on the merits." Patrick moved to vacate the bond requirement, arguing that the Hague Convention explicitly prohibits a court from requiring such a bond: "No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention." Hague Convention art. 22. The district court continued to assert the authority to impose a bond but reduced the amount of the bond to $500. In a minute order dated June 28, 2012, the district court relied on three opinions that refer to instances in which a court  imposed a bond in a Hague Convention case: Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004); Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001); and Lops v. Lops, 140 F.3d 927 (11th Cir.1998).

 The Court of Appeals held that the Hague Convention deprived the district court of authority to impose a bond on Patrick. It saw no distinction between a bond imposed to "respond to damages that Respondent may incur should Petitioner not prevail on the merits" and the bond that the Convention prohibits. The opinions on which the district court relied refer only in passing to a district court's imposition of a bond, without saying whether ordering the bond was within the court's power. Whiting, 391 F.3d at 545; Bekier, 248 F.3d at 1053 & n. 2; Lops, 140 F.3d at 948, 964. These opinions offered no reason to ignore the text of the Convention. It reversed the dismissal of Patrick's petition, vacated the order requiring that Patrick post a bond, and remanded the case to the district court with instructions to conduct a trial as soon as possible.
 

Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) [Mexico] [Grave Risk of Harm] [Age and Maturity]

 In Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) on November 30, 2011, petitioner Jose Leonides Varillas Broca ("petitioner") filed a petition under the Hague Convention alleging that his wife, respondent Mirna Mariana Gil Geron ("respondent"), wrongfully removed their three children from Mexico, and asking the Court for an order that the children be repatriated to Mexico. Petitioner was a Mexican citizen, and lived in Cardenas, Tabasco, Mexico. Respondent was also a Mexican citizen, and currently lived in Brooklyn, New York. The three children were all citizens of Mexico, but had been in the United States since July of 2010. Although initially petitioner brought this action regarding all three children, the oldest child had since turned sixteen and was therefore no longer subject to the Hague Convention.

 On July 16, 2012, the Honorable Sterling Johnson referred the matter to a Magistrate to hold an evidentiary hearing and issue a Report and Recommendation. The Magistrate concluded that: (1) petitioner established a prima facie case for repatriation of his two children under the Hague Convention; (2) the children were not well settled in New York to an extent precluding repatriation under the Hague Convention; (3) respondent had not established that the grave risk of harm exception to repatriation applies; and (4) the mature child defense did not apply to prevent repatriation in this case. He recommended that this Court grant petitioner's petition for
 repatriation of his two children to Mexico, the country of their habitual residence.

 Petitioner and respondent were married in April of 1995 and began living together in Cardenar after their religious wedding ceremony on June 3, 1995. They  had three children together, J.V. ("oldest child"), M.V. ("middle child"), and J.V. ("youngest child"), and the youngest two children were subjects of this action..The middle child was born on December 3, 1997, and was currently fourteen years old. The youngest child was born on October 16, 2002, and was currently nine years old. All three children were born in Mexico and were Mexican citizens. The middle child and youngest child attended school in Cardenas, and the middle child received very high marks. Petitioner and respondent lived together in their family home until February 2010. One night that month, petitioner and respondent had a fight. Tr. at 83:22-85:3; 123:21-125:14. According to respondent, petitioner had locked her out of the house, and that she entered the house through a window and got into bed. She says that petitioner accused her of cheating and told her she had to be examined by a doctor, and when she refused, he "began jerking [her] around." Petitioner confirms that he told respondent that she had to be examined by a doctor to see if she had sexual relations with someone else, but denies yelling at her.According to the middle child, her parents' fighting woke her up that night. After the fight, respondent took the middle child and youngest child and went to her mother's house. Respondent stayed with the two younger children at her mother's home until July of that year. Between February of 2010 and July of 2010, petitioner saw the children on
 weekends and tried to stay involved in their lives. Respondent testified that during this time, she would sometimes run into petitioner on the street in their small town, that he would become violent and jerk her around on the street, and that he once forcibly tried to pull her onto his motorbike. In late July of 2010, she took the children out of Mexico, without telling petitioner or asking his permission. They traveled to Brooklyn to live with respondent's other sister, Gabriela, in New York City.

 Petitioner denied having abused respondent or the children He did admit to having had at least one fight with respondent that turned physically violent. Respondent, on the other hand, claimed that petitioner abused her for nearly the entire duration of their marriage. She stated that when she was pregnant with the youngest child in 2002, petitioner kicked her and she fell down. She claimed that in the years 2008 and 2009, petitioner hit her often and was getting very violent. Respondent went to Mexico City to stay with her father four or five times during this period of time because she felt safe in her father's home. Respondent also claimed that petitioner was controlling and verbally abusive to her. Respondent's mother testified that she had seen bruises on respondent during her marriage to petitioner. According to the middle child, in Mexico, "[my parents] were fighting all the time and they like punched each other or hit and they yell at each other." She saw her father hit her mother, and "[l]ike he kick her or he like grab her by the hand and like throw her away." Respondent and the middle child both recounted an incident, occurring when the middle child was six or seven, wherein petitioner hit the middle child on the bottom with a broom. The middle child testified to another incident when petitioner hit her on the bottom with a belt. In her deposition, entered into evidence, respondent described a third incident with the middle child, wherein petitioner dragged her by the arm into the house. Respondent was not aware of any where petitioner abused the youngest child.

 Dr. Evan Stark, who the court permitted to testify as an expert in domestic violence, testified at the hearing about the impact of domestic violence on women and on children who witness their mother's abuse. Dr. Stark concluded to a high degree of certainty that there was domestic violence in respondent's life, and that petitioner was coercive and controlling of respondent. He also testified about the general harms to children who observe a parent being abused, explaining that there are direct effects (including direct physical exposure and being involved in the violence) and indirect effects (including psychological disturbance). He explained that in order to conclude that the children in this case had suffered any psychological harm, he would need to perform a psychological assessment of the children. Dr. Stark, however, did not perform a psychological assessment of either child. Dr. Stark opined that the children face extreme risk if they were to be returned to Mexico to live with petitioner. When asked whether they would face risks if they lived in Mexico City with their mother, Dr.
 Stark opined that "the risk [the children would face] would be largely a function of the willingness of the authorities to limit access of [petitioner] and it would be largely a function of the risk that [respondent] would face." Dr. Stark's prescription for what can be done to reduce the harm the children have already suffered from witnessing domestic violence is that: [the children should be sent] a strong message that tells them that no one has a right to do what was done to them or to expose them to what they were exposed to and that their mother's decision to put her own safety and their safety before their network of contacts and relationships with loved ones and family members is a decision that we respect and endorse. He characterized respondent's removal of the children from Mexico as "the single-most healthy act that could have been taken."

 Respondent did not appear to make any arguments respecting petitioner's prima facie case and appeared to urge this Court to focus on the affirmative defenses respondent raises. The children lived their entire lives in their family home in Mexico, and had been living in the United States for only two years since their
 removal. These facts alone were sufficient to establish that the children's habitual residence under the Hague Convention was Mexico. Petitioner established that removal of the children was in breach of his custody rights. He submitted evidence of Mexican law showing that he and respondent had joint custodial rights by virtue of being the children's parents, and that those custodial rights can only be terminated by judicial action. Petitioner also established that he was exercising his custody rights at the time of removal. At the time respondent removed the children from Mexico, the children had been living with respondent and her mother for approximately five months. During this time, the children spent weekends with petitioner, and he remained involved in their schooling. The Magistrate concluded that petitioner has proven by a preponderance of the evidence the Mexico was the habitual residence of the children, that petitioner had rights of custody, and that respondent removed the children from Mexico in breach of petitioner's custody rights. Therefore, petitioner raised a prima facie case of wrongful removal under the Hague Convention.

 Respondent argued that petitioner has physically and psychologically abused her and the children, and that the children should remain in New York where they are attending school, receiving superior health care and education to that which they received in Mexico, and happily living in a circle of extended family. Under Article 13(b) of the Hague Convention, "a court may decline to repatriate a child if the party opposing repatriation establishes by clear and convincing evidence that repatriation would create a grave risk of physical or psychological harm to the child." Blondin IV, 238 F.3d at 157. The harms a child may experience if repatriated can be considered on a spectrum. Id. at 162.At one end are "those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences."Id. These situations do not constitute grave risk of harm under the Hague Convention. At the other end of the spectrum are "those situations in which a child faces a real risk of being hurt, physically or psychologically, as a result of repatriation." These situations do constitute grave risk of harm under the Hague Convention. If a court concludes that a child faces grave risk of harm, before it can decline to order repatriation, the court must determine whether there are any ameliorative measures that could be taken to reduce this risk and enable a child to return safely to his home country. Id. In fact, the Second Circuit has instructed that a finding of grave risk of harm, without consideration of ameliorative measures, is not sufficient to deny repatriation. The grave risk analysis must be based upon the "specific facts presented in th[e] case."Id. at 163 n. 12.A court may consider as non-dispositive factors whether the children are settled into their new environment, and whether the children have views on repatriation, taking into account the children's age and degree of maturity. Reyes Olguin v. Cruz Santana (Olguin II), No. 03-CV-6288, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005).

 The Magistrate observed that in cases where respondents have established this defense, courts "have focused on evidence of a sustained pattern of physical abuse and/or a propensity for violent abuse." Laguna v. Avila, No. 07-CV-5136, 2008 WL 1986253, *8 (E.D.N.Y. May 7, 2008) (collecting cases). Evidence of sporadic or isolated incidents of abuse, or incidents aimed at persons other than the child at issue is typically not sufficient to establish grave risk of harm. In this case, there was no sustained pattern of physical violence against the children. The middle child testified to two incidents of physical abuse from her father, when he hit her on the bottom with a broom and a belt. According to respondent, the middle child was six or seven when the broom incident occurred, and petitioner said that he was trying to discipline the child. There was no evidence presented that petitioner had ever physically abused the youngest child. This evidence certainly does not show a sustained pattern of physical abuse of the children. The evidence did establish that petitioner abused respondent. Respondent testified to physical abuse that began early on in their relationship. The middle child verified that her parents were "fighting all the time and they like punched each other or hit and they yell at each other" and that she saw her father kick and grab her mother. Although some courts have found that a child witnessing extreme abuse may suffer psychological harms sufficient to invoke the grave risk of harm defense, the evidence did not support such a finding here. When asked whether she had any fears about returning to Mexico, the middle child responded that she was afraid people would talk about her. If she returned to Mexico, she would not want to live with her father anymore because she doesn't "want anything to happen again." Although she did not elaborate, I infer that she does not want her parents to fight. DDr. Stark's testimony merely confirmed that the relationship between petitioner and respondent was abusive, and that, generally speaking, children are negatively impacted by witnessing one parent abuse the other. Dr. Stark interviewed respondent for four hours, but spent very little time with the two children. He agreed that in order to conclude that the children had suffered serious psychological harms, a psychological assessment would need to be done on the children. Nevertheless, without conducting such an assessment, he gave his opinion of the harm caused to the children, and the risks they faced upon return to Mexico. He characterized the harms suffered by the children as "serious," from having been "exposed and repeatedly exposed to [petitioner's] abuse of [respondent]." Dr. Stark's opinions were easily distinguished from expert testimony that has been found to support denial of repatriation based on grave risk of harm. First, Dr. Stark's testimony about the general risks of harm to children witnessing a parent's abuse did not establish that these harms actually occurred in this case. See Blondin IV, 238 F.3d at 163 n. 12 (explaining that the grave risk of harm exception requires a close examination of the particular facts relating to the child at issue). Indeed, Dr. Stark testified that, although he did not perform a psychological assessment of the children, "[he] didn't observe and [respondent] did not report to [him] that the children had suffered any extreme psychological harms." Second, unlike cases where courts have denied repatriation based on children observing a parent's abuse, Dr. Stark did not conclude that the children would suffer trauma solely as a function of their return to Mexico. See Blondin IV, 238 F.3d at 166 (affirming district court's application of the grave risk of harm defense where the district court concluded that the mere return of a child to her home country would trigger post-traumatic stress disorder); Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408 (E.D.N.Y.2005) (children witnessed physical abuse of a parent, and mere return to their home country would trigger post-traumatic stress disorder). The evidence does not establish that the children have suffered extreme harm, or would suffer a grave risk of harm if repatriated. Respondent bases her argument on several cases where courts in other Circuits found grave risk of harm based on a child's observation of one parent's abuse of the other parent. In these cases, however, the evidence established that the conduct of the violent parent was extreme. In this case, the admissible evidence shows that petitioner was physically and emotionally abusive to respondent on a number of occasions, and that the physical abuse involved, at most, kicking and hitting. There is no evidence that petitioner was uncontrollably violent or threatened anyone's life.

 Even if the Court were to conclude that the children faced a grave risk of  harm from return to the custody of their father, this Court would need to consider the options for repatriation that might reduce that risk. Blondin IV, 238 F.3d at 163 n. 11. Here, the record indicated that there were arrangements available to the family that could ameliorate that risk. When asked about the risks the children would face if they were to return to Mexico with their mother while living in Mexico City, Dr. Stark opined that "the risk would be a function of the willingness of the authorities to limit [petitioner's] access to his wife." Respondent did not argue that these ameliorative options are foreclosed by nature of Mexican law, or that she has already exhausted the possible ways she could live away from petitioner, but remain in Mexico with the children. She argues merely that, based on Dr. Stark's opinion, "she will not be safe if she returns to Mexico," Respondent's own testimony, however, indicated that she felt safe in Mexico City with her father. The evidence indicated that it was possible for respondent and the children to live safely in Mexico City, and presumably for respondent to negotiate visitation with petitioner or seek a judicial decree of divorce and/or a change in custodial arrangement from the Mexican courts. Respondent testified that "in [Mexico] no one pays attention to women who are abused. On other occasions when [abuse] has happened, I had wanted to bring charges. But unfortunately sexism is very rampant in Mexico." She also testified that after the incident in February of 2010, she and petitioner went to court and were told that they should "work things out for the sake of [the] children." There was no evidence that respondent has sought any other help from authorities or social resources, nor that she has attempted to initiate divorce proceedings.Therefore, because the evidence did not support a finding of grave risk of harm to the children and there wereoptions for the safe return of the children to Mexico, the Court could not deny repatriation based on the grave risk of harm exception under Article 13(b) of the Hague Convention.

 Respondent argues that petitioner instituted these proceedings more than one year after the children were removed from Mexico, and that the children are well settled in the United States.. The evidence establishes that petitioner instituted these proceedings more than one year after respondent removed the children from Mexico. The children had been in the country for two years but moved four times. The family never had its own residence. Respondent worked several waitressing jobs since she came to New York, and did not pay taxes on her wages. She was here illegally, as were the children. The middle child spent the first twelve years of her life in Mexico, and had only been in the United States for the last two years. Although the youngest child has spent a larger portion of his life here because he was only nine years old, he was struggling with English and not doing well in school. These factors, taken together, indicated that the children were not well settled within the meaning of the Hague Convention.

 Respondent argued that the middle child objected to her return to Mexico, and that she was of sufficient maturity that this Court should take her objection into account. The middle child, who testified with an impressive command of the English language even though she knew no English when she came here two years ago,
 impressed the Court as intelligent and well-spoken. It found her testimony compelling and very credible, and believed that she gave honest answers about why she wanted to stay in the United States. Her reasons for objecting to her return, however, did not provide a basis for the Court to deny repatriation. She testified about the problems in her family when asked specifically about them, but when asked what she did not like about Mexico, she responded that she did not like the people because she lived in a small town and the people were talking about her all the time. When asked what she likes about life away from Mexico, she said that she liked Texas "because it's pretty," and that she likes New York because of the tall buildings, her friends, and her family. When asked why she did not want to return to Mexico she responded, "Because I made friends here and I'm more comfortable here."Id. at 183:14-15.She elaborated that she is more comfortable here because her family is here. When asked if she had any worries or fears if she were to go back to Mexico, she responded, "[t]hat I don't-when I grow up I don't be a lawyer." When asked if she was afraid of anything in Mexico, she responded, "[j]ust that people are going to talk about me. The middle child also testified that she wants to stay in the United States because she will get a better education and have a chance to be a lawyer. These reasons expressed "a
 well-adjustment to life in the United States and a simple preference for the luxuries of living in New York," which is not sufficient to establish the mature

Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) [Singapore] [Grave Risk of Harm]

In Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) the district court granted the Petition of Abdollah Naghash Souratgar, an Iranian citizen, for the return of his son, Shayan, to Singapore. Shayan. The child was born in Singapore and had Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore and traveled to the United States. On October 18, 2012, shortly after the father learned that the child and respondent were living in Dutchess County, New York, he filed a petition with this Court. After hearing the testimony from the petitioner and his investigators, the Court granted an ex parte application for an order directing the U.S. Marshal to take "all necessary and lawful steps" to "remove Shayan" from his mother’s custody and deliver him "into the custody of [p]etitioner." Petitioner was ordered to surrender his passport and post a $10,000 bond. On November 7, 2012, both parties appeared with counsel, and the Court scheduled an evidentiary hearing. The Court appointed a guardian ad litem for Shayan. After a hearing the Court granted the petition.

Since 2000, petitioner was an employment-pass holder in Singapore, where he worked. He first traveled to Singapore in 1985 and set up his company there in 1989. The head office of the business he owns was located in Singapore and had twelve employees. He also owned a business in Iran. Respondent had permanent resident status in Singapore.

In 2007, the couple married, and on January 16, 2008, they registered their marriage in Singapore. Shayan was born on January 29, 2009. The child had Malaysian citizenship and had resided in Singapore from birth until the respondent removed the child to the United States. There was considerable strife in the marriage, and on April 29, 2011, while the couple still resided together, respondent filed an application for sole custody, care, and control of the child in the High Court of the Republic of Singapore. On May 16, 2011, she obtained an ex parte order from the Subordinate Courts of the Republic of Singapore prohibiting petitioner from removing the child from the jurisdiction of Singapore without respondent’s consent or the court’s approval. Respondent left the marital home with the child on May 25, 2011 and moved into her sister’s Singapore apartment. Shortly thereafter, petitioner was served with a copy of the May 16, 2011 order. Petitioner filed a cross-application for sole custody on June 28, 2011. At a mediation session held on July 14, 2011, the Subordinate Court issued an order prohibiting both parties from removing the child from Singapore. The Order also granted petitioner supervised visitation every Saturday between 3 p.m. to 5 p.m. at the Centre for Family Harmony, the costs of which were to be borne equally.

 

The district court observed that persons of the Muslim faith are a small minority in Singapore. By statute, divorce actions between individuals of the Muslim faith must be brought in the Singapore Sharia Courts. Administration of Muslim Law Act, Part III, § 35(2) ("AMLA"). Sometime around the end of 2011, respondent brought an action for divorce in the Singapore Sharia Courts. Respondent attended a mandatory counseling session within the Sharia Court. Petitioner testified that he did not participate in the action. Petitioner’s Singapore counsel testified that the divorce action did not proceed. The Singapore Subordinate Court continued to function on issues relating to temporary custody of the child and visitation and on February 16, 2012, after a mediation session presided over by a judge of the Singapore Subordinate Court, the court ordered that "[t]he child shall continue to be in the care of the mother pending the determination of custody, care, and control of the child by the Syariah Courts" and that "[t]he father shall have access to the child two times a week at the Centre for Family Harmony pending the outcome of the hearing of the Syariah Courts."⁴ The order stated in boldfaced capital letters that it was entered "BY CONSENT."

 

On May 20, 2012, the respondent left Singapore in breach of the July 14, 2011 order. Petitioner obtained a court order requiring the respondent to deliver the child to the Duty Judge of the Subordinate Courts Family and Juvenile Division within seven days and surrender the child’s personal documents. This order specified that "[t]he child be placed in the interim sole care and control of" the petitioner "pending the determination of the action or until further Orders." The same order further directed that respondent be restrained from removing the child from the jurisdiction without the consent of petitioner or the court. Respondent, who was no longer in the country and likely did not receive notice of the June 5, 2012 order, did not comply and was held in contempt on June 25, 2012.

 

The district court found that petitioner established each and every element of a prima facie case under the Hague Convention. The district court observed that Article 13(b) of the Hague Convention provides that the signatory state "is not bound to order the return of the child" if "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). Although the respondent bears the burden of establishing by clear and convincing evidence that the exception applies, 42 U.S.C. § 11603(e) (2)(A), subsidiary facts may be proven by a preponderance of the evidence. It noted that the Second Circuit considered the "grave risk" exception at length in Blondin II and Blondin v. Dubois, 238 F.3d 153 (2d Cir.2001) ("Blondin IV" ). The court explained that mere showings of "inconvenience or hardship" do not amount to a "grave risk" of harm. Rather a "grave risk" of harm exists where "the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation." The court cited withapproval the Sixth Circuit’s observation that a "grave risk" to the child presents itself in two situations: (1) where returning the child means sending him to ‘a zone of war, famine or disease’; or (2) ‘in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.’ (quoting Friedrich, 78 F.3d at 1069) In the years since the Second Circuit’s consideration of the Blondin case, several federal courts have found "a child’s observation of spousal abuse is relevant to the grave-risk inquiry." E.g., Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408 (E.D.N.Y.2005). "Children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser." (citing Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045, 1058(E.D.Wash.2001). Accordingly, evidence of "[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm defense." Rial v. Rijo, 10 Civ. 1578(RJH), 2010 WL 1643995, at *2 (S.D.N.Y. Apr. 23, 2010) (citing Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000)). Still, the court need not "refuse to send a child back to [his] home country in any case involving allegations of abuse, on the theory that a return to the home country poses a grave risk of psychological harm." Blondin IV, 238 F.3d at 163 n. 12. Rather, that determination must be based on the "specific facts presented in [the] case."  When making a grave risk determination, the court must also consider whether the child can be protected from the risk of harm "while still honoring the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child’s home country." Blondin II, 189 F.3d at 248. In its deliberation of whether there is a grave risk of harm, the Court takes into account "any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation." "In cases of serious abuse, before a [district] court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country." Blondin IV, 238 F.3d at 163 n. 11. For instance, in Blondin v. Dubois, 19 F.Supp.2d 123, 129 (S.D.N.Y.1998) ( "Blondin I" ), the district court concluded that there would be a grave risk of harm should the children in that case be returned to France, the country of their habitual residence. The Second Circuit, in Blondin II, remanded the case to the district court for "further consideration of the range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody award in due course ...." 189 F.3d at 249. On remand, the district court engaged in further analysis but reached the same conclusion, in part because "any return" of the children would " ‘almost certainly’ trigger a recurrence of their traumatic stress disorder." Blondin v. Dubois, 78 F.Supp.2d 283, 295 (S.D.N.Y.2000) ("Blondin III" ). On appeal, the Second Circuit affirmed the district court’s determination that there was a grave risk of harm to the children because repatriation to the country of habitual residence created a real risk of triggering further psychological trauma, regardless of any potential mitigating arrangements. Blondin IV, 238 F.3d at 161. In applying the standard set out in the Blondin cases, district courts inthis Circuit have denied petitions to return the child where there has been evidence supporting a finding of a real risk of psychological or physical harm to the child. Elyashiv, 353 F.Supp.2d at 408–09 (evidence petitioner physically abused respondent and the children and expert testimony that the children would suffer PTSD symptoms upon their return to Israel, regardless of contact with petitioner); Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299, 2005 WL 67094, at *2–*4, *11–*12 (E.D.N.Y. Jan. 13, 2005) (evidence petitioner frequently beat respondent in front of the children, children told psychiatrist that petitioner hit them, and expert testimony that return of the children would exacerbate the PTSD of one child). This Court held in M.M. v. F.R., No. 11 Civ. 2355(PKC) (S.D.N.Y. June 30, 2011), that respondent had established that repatriating the child would expose him to a grave risk of physical or psychological harm, because, among other things, the petitioner had sexually abused the child’s half-sister. But, credible evidence of some level of abuse by the petitioner does not necessarily equate to establishment of the grave risk to the child in repatriation. See, e.g., Rial, 2010 WL 1643995, at *2–*3 (evidence of verbal and physical abuse toward respondent, at times in front of child); Laguna v. Avila, No. 07 Civ. 5136, 2008 WL 1986253, at *8–*9 (E.D.N.Y. May 7, 2008) (evidence of violence toward respondent, but no evidence that petitioner physically abused the child). The focus of the inquiry is not on the relationship between the two parents or the desirability of one parent having custody. Rather, the focus should be on whether returning the child to the country from which he was removed will present a real risk of harm to the child, because, for example, it will trigger trauma to the child or the country of habitual residence lacks the means to afford reasonable protection to the child from physical or psychological harm at the hands of a parent or third-party.

 

The district court found that both parties had deep love for Shayan and cared greatly about his well being. Respondent testified that she never saw petitioner physically abuse the child. Moreover, she never reported to the police any incident where petitioner abused the child. She never claimed in the Singapore courts that petitioner abused the child. Petitioner and respondent both alleged instances of domestic abuse and inappropriate conduct aimed at one another. The Court found that Respondent had exaggerated her claims, and did not establish her grave risk of harm defense. For example, Respondent testified that petitioner forced her to engage in certain sexual acts, including anal and oral intercourse, which often occurred in the marital bedroom where the child slept. The Court did not credit respondent’s testimony because respondent’s SMS text messages to petitioner contradicted her account and indicated that she was a willing participant.

A Dr. B.J. Cling, retained by respondent, testified as an expert on domestic violence matters. Dr. Cling opined that respondent suffered from symptoms of post-traumatic stress disorder and depression. Dr. Cling testified about a specific type of domestic violence termed "coercive control" or "intimate terrorism," which "has as its main focus the domination and control of the victim." This type of violence is severe, frequent, and very harmful to children. Moreover, when the victim and perpetrator separate, the characteristics of "coercive control" often escalate. The Court found that the evidence did not support this conclusion and that the Respondent failed to prove her grave risk of harm defense.

The district court also rejected respondents Article 20 defense. It permits the requested State to refuse the return of the child when it "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20.¹³ The Article 20 defense must be restrictively interpreted and applied on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process." The parties did not cite and the Court could not find any published federal case law in which the Article 20 exception was found to have been established. See Uzoh v. Uzoh, No. 11 Civ. 9124, 2012 WL 1565345, at *7 (N.D.Ill. May 2, 2012) (noting the same).

Respondent argued that returning the child was not permitted by the fundamental principles of the United States because the custody determination in Singapore will be made in a Sharia Court. AMLA grants the Sharia Courts in Singapore considerable discretion in considering evidence from non-Muslims. See AMLA § 42(3). Respondents expert, Ms. Hassan, testified that a woman’s testimony is worth less than a man’s in the Sharia Courts. Moreover, she testified that Sharia Law applies presumptions favoring fathers and disfavoring non-Muslim parents in custody determinations. These rules, respondent urged, ought shock the conscience and offend notions of due process. The Court concluded, that it need not reach the issue of whether the procedural and substantive rules in Sharia Courts "shock the conscience" or "offend all notions of due process" because the Court found that respondent failed to prove that it was more likely than not that the Sharia Court would make a final custody determination in this case.

 

Respondent also argued that there were insufficient protections against domestic violence in Singapore, and thus, Article 20 bared the child’s repatriation. The Court found that Singapore had reasonable procedures to ensure the safety of the child during the pendency of the custody proceedings including supervised visitation.

  The Court concluded that it would be an improvident exercise of discretion to stay the Order pending appeal because there was a significant risk that Respondent would flee with the child and avoid detection. The treaty between the United States and Singapore contemplates the "prompt" return of the child to the country of habitual residence. See Hague Convention, art. 1. The Court granted a brief stay of return to permit a stay application to be made to the United States Court of Appeals for the Second Circuit and otherwise denied a stay pending appeal.