Jakubik v Schmirer, 2013 WL 3465857 (S.D.N.Y.) [Hungary] [Federal & State Judicial Remedies] [Intervention By Child Subject of Proceeding]

In Jakubik v Schmirer, 2013 WL 3465857 (S.D.N.Y.) Gyula Janos Jacubik, petitioned for the return to Hungary of his fifteen year old daughter D.T.J.. DTJ, moved to intervene through her next friend, Fr .Christian Gobel. Petitioner opposed the motion. Respondent did not take a position on the motion. D.T.J.'s motion to intervene was granted. The Clerk of Court is directed to add D.T.J., through her next friend Fr. Christian Gobel, as a party to the case, to be represented by an attorney appointed by the court. The Court observed that Federal Rule of Civil Procedure 24(a)(2) provides that "[o]n timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."T he Second Circuit has set out a four-part test, each part of which is required for intervention as of right: In order to be entitled to intervene as of right under Rule 24(a)(2), "an intervenor must show that: (1) the application is timely; (2) the applicant claims an interest relating to the property or transaction which is the subject matter of the action; (3) the protection of the interest may as a practical matter be impaired by the disposition of the action; and (4) the interest is not adequately protected by an existing party. St. John's Univ., N.Y. v. Bolton, 450 F. App'x 81, 83 (2d Cir.2011). The Court found that D.T.J. had met each of these requirements. Her application to intervene was timely. It came just three business days after counsel was appointed to represent her and one day after counsel's initial conversation with D.T.J. She had an obvious interest in this litigation: It would determine whether D.T.J., age 15, would be repatriated to Hungary for custody proceedings. Her interest might be impaired by the outcome of this action: She claimed an interest in remaining in the United States, and a ruling (in either direction) would profoundly affect her. Finally, D.T.J.'s interests were not identical to those of her mother, Respondent Eva Schmirer and the Court did not believe they were necessarily adequately represented by Respondent. D.T.J.'s counsel pointed out, "[t]he child has a potential right to immigration remedies which are foreclosed to Respondent, and which have not been explored by Respondent. D.T.J.'s counsel represented that she was "actively seeking" retention of an immigration expert. As to this issue, it was possible that D.T.J.'s and Respondent's interests diverged. The Court concluded that D.T.J. had met all four prongs required in a motion to intervene as of right. The Court held that D.T.J. had even more clearly met the standard required for a permissive intervention. See Fed.R.Civ.P. 24(b) (court may permit intervention by anyone who "has a claim or defense that shares with the main action a common question of law or fact," although "court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights."). A district court has broad discretion under Rule 24(b). "The requirement of the Rule is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) . The Court held that the interests of D.T.J. in the litigation sufficiently outweighed any potential "costs to allowing the Child to become a party," Moreover, the Court saw no undue delay caused by the child's intervention.

Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375 (C.A.2 (N.Y.)) [Singapore] [Grave Risk of Harm] [Fundamental Freedoms]

In Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375 (C.A.2 (N.Y.)) Lee Jen Fair appealed the grant of a petition brought by her husband Abdollah Naghash Souratgar for repatriation of their son from New York to Singapore. In May 2012, Lee removed the boy to Dutchess County, New York, in direct violation of a Singapore court order. The District Court granted Souratgar's petition pursuant to the Hague Convention.(Souratgar v. Lee Jen Fair, No. 12 CV 7797(PKC), 2012 WL 6700214 (S.D.N.Y. Dec. 26, 2012). The Second Circuit affirmed rejecting her “grave risk of harm” and “fundamental freedoms’ defenses.

Four-year-old Shayan, was born in Singapore in January 2009 to Lee and Souratgar, who were both residents of that country. Souratgar was an Iranian national who has owned a business in Singapore since 1989. Lee was a Malaysian national. She converted to Islam, Souratgar's faith, just prior to their marriage in Singapore in 2007. Shayan was a citizen of Malaysia with Malaysian and Iranian passports. At the district court hearing, the parties traded accusations and denials of domestic abuse. Souratgar accused Lee, among other things, of biting him, repeatedly threatening him with a knife and chopper, having suicidal tendencies, and inflicting injuries on herself. Lee asserted in her testimony more serious allegations-that Souratgar repeatedly slapped, beat, shook, and kicked her, and that he forced her to perform sex acts against her will. The district court found spousal abuse by Souratgar, including "shouting and offensive name-calling," and several incidents of physical abuse in which he "kicked, slapped, grabbed, and hit" . The district court found no credible evidence of any harm directed against the child. Both parties acknowledged the other's love for Shayan, and was not disputed that the boy dearly loves both of his parents. In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan's passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee's knowledge or consent. Souratgar complied with the order, denied Lee's charges, and cross-applied for sole custody. While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. Souratgar then filed a custody application in the Syariah Court of Malaysia, which granted joint custody to the couple in early July. Thereafter, Lee succeeded in obtaining a dismissal of that order from the Malaysian Syariah Court for lack of jurisdiction. After Lee and Shayan returned to Singapore, the custody proceedings in Singapore's Subordinate Court resumed. Following a mediation session on July 14, 2011, the Subordinate Court barred either parent from removing Shayan from Singapore without the other's consent and ordered interim supervised visitation for Souratgar at Singapore's Centre for Family Harmony. Following another mediation session on February 16, 2012, both parties agreed to a consent order by the Subordinate Court to have custody decided by the Syariah Court of Singapore. In the meantime, Shayan remained in Lee's care, while Souratgar's visitation time was doubled. In late 2011, Lee had filed for divorce in Singapore's Syariah Court and used that proceeding to dismiss the temporary joint custody order of the Malaysian Syariah Court. On May 20, 2012, Lee removed Shayan from Singapore, in violation of the Singapore Subordinate Court's order.

Souratgar, through a private investigator, eventually located Lee and Shayan in Dutchess County, and on October 18, 2012 filed an ex parte application in the district court under the Convention for Shayan's return to Singapore. The district court heard testimony from nine witnesses over a nine-day evidentiary hearing, and on December 26, granted Souratgar's petition. The Court of Appeals for the Second Circuit affirmed. The parties did not dispute either that Singapore was the country of Shayan's habitual residence or that his removal from Singapore was wrongful under the Convention. The issue on appeal was whether the two affirmative defenses that Lee raised under Articles 13(b) and 20 of the Convention precluded repatriation. Under Article 13(b), the judicial or administrative authority of the requested State is not bound to order the return of the child if [the party opposing repatriation] establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Under Article 20, repatriation also "may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." The respondent parent opposing the return of the child has the burden of establishing "by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies." 42 U.S.C.§ 11603(e)(2)(A). Subsidiary facts may be proven by a preponderance of the evidence.. The Second Circuit observed that it reviews the district court's interpretation of the Convention de novo and its factual determinations for clear error. Its "review under the 'clearly erroneous' standard is significantly deferential." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993). It must accept the trial court's findings unless it has a "definite and firm conviction that a mistake has been committed."

The Second Circuit rejected Lee’s argument that returning Shayan to Singapore would expose him to "a grave risk" of "physical or psychological harm" or "otherwise place him in an intolerable situation" and that the district court's finding to the contrary was error. The harms he could face upon return, she asserted, were (1) exposure to spousal abuse; (2) direct abuse from his father; or (3) the loss of his mother. The Court found that Lee's arguments were permeated with conjecture and speculation and that there was no error in the district court's determination that Lee had failed to meet her burden to establish the Article 13(b) defense.

The Second Circuit held that under Article 13(b), a grave risk of harm from repatriation arises 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." Blondin IV, 238 F.3d at 162. The potential harm to the child must be severe, and the the level of risk and danger required to trigger this exception has consistently been held to be very high. The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize. This grave risk' exception is to be interpreted narrowly, lest it swallow the rule. The Second Circuit indicated that while many cases for relief under the Convention arise from a backdrop of domestic strife spousal abuse is only relevant under Article 13(b) if it seriously endangers the child. The Article 13(b) inquiry is not whether repatriation would place the respondent parent's safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. The exception to repatriation has been found where the petitioner showed a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child. Evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child's exposure to such abuse. Evidence of this kind, however, is not dispositive in these fact-intensive cases. Sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk. In this case, the district court found that, while Lee was subjected to domestic abuse on certain occasions, albeit less than she claimed, at no time was Shayan harmed or targeted. The Court noted that it has held that Article 13(b) relief could be granted if repatriation posed a grave risk of causing unavoidable psychological harm to the child. See Blondin IV, 238 F.3d at 160-61 (affirming denial of petition to repatriate after an expert psychologist opined that returning the boy and girl to France, where they had been abused by their father, would likely trigger recurrence of PTSD, and that no arrangement could mitigate this risk). The holding in Blondin IV depended on the fact, due to the nature of the potential harm at issue, recurrence of PTSD that would occur as soon as the children entered France, there was nothing the courts could do to prevent it. In this case, there was nothing in the record beyond speculation that Shayan would suffer unavoidable psychological harm if returned to Singapore. Neither party nor the guardian ad litem requested a psychological evaluation of the boy, and the guardian ad litem reported, after observing Shayan's interactions with both parents and interviewing him separately, that the boy appeared to be an active and happy child, who seemed distressed about the difficulties between his parents. Shayan expressed unqualified love for both parents and indicated that he was never physically disciplined and never saw or heard either parent hit the other or try to hurt the other parent. In contrast, the girl in Blondin IV had herself been abused and expressed fear of her father. The circuit court cases affirming denial of repatriation cited by Lee were distinguishable in that the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.

The Court emphasized that it on held “ that in this case, the evidence, which did not match the showing in those cases, did not establish that the child faced a grave risk of physical or psychological harm upon repatriation. Lee contended that the district court erred in discounting the likelihood that Shayan would be exposed to renewed domestic strife and suffer grievous psychological harm upon his return to Singapore. She also faulted the district court for refusing to credit expert testimony characterizing Souratgar as having a coercive and controlling personality type with a tendency to hurt women and children. At the hearing, the district court heard a psychological expert describe abusive spouses of the "coercive control" type and of the "situational" type and placed Souratgar in the former category. The coercive control type is said to demand domination and control and grows more dangerous upon separation from the victim. On this basis, the expert concluded that Souratgar still posed an "extreme danger" to Lee even though they had been estranged for more than a year. The experts assessment of Souratgar was based entirely on Lee's answers to a survey, which the district court found to contain inaccuracies. The district court therefore discredited the experts conclusions. There was no basis in the record for disagreement with the district court's finding.

The Second Circuit held that for it “to hold evidence of spousal conflict alone, without a clear and convincing showing of grave risk of harm to the child, to be sufficient to decline repatriation, would unduly broaden the Article 13(b) defense and undermine the central premise of the Convention: that wrongfully removed children be repatriated so that questions over their custody can be decided by courts in the country where they habitually reside. Our holding today is not that abuse of the kind described by Lee can never entitle a respondent to an Article 13(b) defense; rather it depends on the district court's finding that Shayan would not be in danger of being exposed to a grave risk of physical or psychological harm and that the Singapore court system has demonstrated its ability to adjudicate the dispute over his custody.” It found no clear error in the district court's finding that the facts did not indicate a grave risk of harm to the child in this particular instance.

Lee also contended that Shayan faced a direct risk of harm from his father, who, having been abusive to Lee, was also likely to turn on Shayan, citing the description of the "coercive control" type in the social science literature that draws certain correlations between perpetrators of spousal abuse and child abuse. However, given the problems with the experts methodology in type-casting Souratgar, the lack of any indicia of ill-will on the part of Souratgar toward Shayan, and contrary credited evidence of a loving father-son relationship, there was no clear and convincing showing that the boy faced a grave risk of harm from his father. Lee also posited various scenarios in which the boy would be deprived of his mother post-repatriation. She claimed Souratgar may (a) resort to Syariah court proceedings in Singapore or Malaysia to win custody outright; (b) abscond with Shayan to Iran; or (c) expose her to the charge of apostasy (leaving the Muslim faith), a religious crime punishable by death in her home country of Malaysia. The district court dismissed these claims as lacking factual support. As an initial matter, the Second Circuit held that the court could not conclude that the prospect that one parent may lose custody of the child, post-repatriation, necessarily constitutes a grave risk to the child under the Convention. Since the Convention defers the determination of custody to courts in the country where the child habitually resides, it is quite conceivable that in some cases one or the other parent may lose legal custody after repatriation and be deprived of access to the child. Thus, the possible loss of access by a parent to the child does not constitute a grave risk of harm per se for Article 13(b) purposes. Even assuming that the prospect of the child losing his mother posed a grave risk to the child's well-being, there was no basis to disturb the district court's finding that Lee had not made a clear and convincing showing that any of the scenarios that she raised was likely to occur.

The Second Circuit pointed out that the Article 20 defense allows repatriation to be denied when it "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." This defense is to be "restrictively interpreted and applied." Article 20 is a unique formulation that embodies a political compromise among the states that negotiated the Convention, which might never have been adopted otherwise.. The defense is to be invoked only on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process. It is not to be used as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed. This defense has yet to be used by a federal court to deny a petition for repatriation. Lee argued that Syariah Courts are incompatible with the principles "relating to the protection of human rights and fundamental freedoms" of this country. The Second Circuit declined to make this categorical ruling as a legal matter. Moreover, Lee failed to show that the issue of custody was likely to be litigated before Singapore's Syariah Court. Given that failure, it was not inclined to conclude simply that the presence of a Syariah Court in a foreign state whose accession to the Convention has been recognized by the United States is per se violative of "all notions of due process.” It noted that such a holding would contradict the State Department's view expressed upon Singapore's accession as a bilateral partner under the Convention, that Singapore is a "role model" among states in the region. It was also mindful of the need for comity, as the careful and thorough fulfillment of our treaty obligations stands not only to protect children abducted to the United States, but also to protect American children abducted to other nations-whose courts, under the legal regime created by this treaty, are expected to offer reciprocal protection. In the exercise of comity, we are required to place our trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it. For all of the above reasons, it concluded that the district court did not err in rejecting Lee's Article 20 defense.

Guzzo v. Cristofano, --- F.3d ----, 2013 WL 2476835 (C.A.2 (N.Y.)) [Italy] [Habitual Residence]

In Guzzo v. Cristofano, --- F.3d ----, 2013 WL 2476835 (C.A.2 (N.Y.)) the Second Circuit observed that the Hague Convention uses the terms "habitual residence" and "habitually resident" in a practical way, referring to the country where a child usually or customarily lives. The term is not equivalent to the American legal concept of "domicile," which relies principally on intent. Nonetheless, when parents move temporarily to another country, without agreeing to change the child's principal place of residence, a petitioner claiming that the new location has become the child's "habitual residence" must show that the child has "acclimated" to that country. Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005). The petitioner in this case failed to show that the parents agreed to settle in Italy, and he did not attempt to show that the child had acclimated there. Accordingly, the district court properly denied the petition for return of the child. Petitioner-appellant Gerardo Guzzo ("Father") was an Italian citizen and resident of Scario, Italy, and respondent-appellee Luisa Maria Cristofano (the "Mother") was a United States citizen and resident of New York. They met in September 2005 onboard a flight from New York to Italy and began visiting each other regularly and discussing the prospect of marriage. In January 2006, the Mother discovered that she was pregnant. She soon visited the Father in Italy, where they resumed discussions about whether to get married in New York or Italy. The Father and Mother eventually agreed to marry in New York while maintaining their respective residences in Italy and New York. In September 2006, their child was born. Based on the evidence presented at trial, the District Court found that from 2006 to 2007 the parties maintained their "bi-continental marriage," each parent visiting the other on numerous occasions, and in December 2007 the parties agreed that the Mother and the child would live primarily in Italy with the Father but return periodically to New York. During this time, however, the parents' relationship became increasingly tumultuous. In February 2009, the Mother took the child to New York and told the Father that she wanted a separation. Over the next few months, the parents negotiated a separation agreement (the "Separation Agreement"), which the Mother signed in English on May 20, 2009, and which the Father signed in Italian on June 10, 2009. As relevant here, the Separation Agreement provided that the parents would " 'continue to live separate and apart,' " that the Mother would " 'have custody[ ] of the minor child,' " and that the child would attend school at the Good Counsel Academy in White Plains, New York. Guzzo v. Cristofano, No. 11 Civ. 7394(RJS), 2011 WL 6934108, at *2 (S.D.N.Y. Dec. 30, 2011) The Separation Agreement also established a visitation schedule, which provided that the child would spend at least two months each year in Italy with the Father. Soon after signing the Separation Agreement, the Mother returned to Italy with the child. As the District Court explained, the Mother "testified that her trip to Italy was undertaken as an attempt at reconciliation with [the Father], but that she was only willing to make the attempt because she had the protection of the Separation Agreement." The Mother also testified that "regardless of the reconciliation attempt, she never intended to have the child attend primary school in Italy and that she always planned to live with the child in New York once he was in kindergarten." With only intermittent vacations, including several trips to New York, the child continued to live in Italy, where he attended nursery school. In November 2010, the Mother took the child to New York with the intention of not returning to Italy. The following month, the parents agreed to make another attempt at reconciliation, and the Mother moved back to Italy in January 2011 with the child. The effort was unsuccessful. In August 2011, the Mother returned with the child to New York, where they have lived ever since. The Mother also initiated divorce proceedings in Westchester County, New York. The Father initiated this action under the Hague Convention in October 2011, alleging that the Mother had wrongfully removed the child from Italy in August 2011. The District Court held a three-day bench trial and denied the petition, concluding that the Father had not proved by a preponderance of the evidence that Italy, rather than the United States, was the child's country of "habitual residence." Guzzo, 2011 WL 6934108, at *4. The District Court began by restating the two-part test for determining a child's habitual residence. (citing Gitter, 396 F.3d at 134). Under that test, a court must first "inquire into the shared intent of those entitled to fix the child's residence ... at the [last] time that their intent was shared." If a court concludes that the parents did not intend to change a child's habitual residence, it then must assess "whether the evidence unequivocally points to the conclusion" that the child has acclimated to the new location, notwithstanding the parents' intentions. The District Court noted that the Father had rested his petition entirely on the first prong, arguing that the parents had agreed to change the child's habitual residence to Italy; he had explicitly abandoned any argument that the child had acclimated to life in Italy. Based on the evidence presented at trial, the District Court determined that the parents' Settlement Agreement in 2009 exhibited their last shared intent regarding the child's usual residence. Although the Mother had moved to Italy with the child after signing the agreement, and had attempted to reconcile with the Father, the Court found "no evidence that the attempted reconciliation, in and of itself, altered the [Settlement] [A]greement in any way." The Court also found the Father's testimony that the parents reconciled in June 2009 and formed a new shared opinion that the child would live in Italy to be "not credible." The Court further concluded that "[d]espite the parties' apparently sincere attempts at reconciliation, the evidence demonstrates that [the Mother] never contemplated spending her life in Italy or having the child attend Italian schools following preschool." With respect to the child's attendance at nursery school in Italy, the Court found that the Mother had "testified credibly that, regardless of the outcome of the attempted reconciliation, she intended to send the child to kindergarten in New York." The Mother also refused to register her marriage with Italian authorities, which would have enabled her to obtain Italian public health insurance. And the child "did not have Italian medical insurance, but rather was insured through Medicaid and received his primary medical treatment in the United States." After reviewing the relevant case law, the Court concluded that "the evidence overwhelmingly demonstrates that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence." The Second Circuit observed that "Habitual residence," as one court has observed, "is the central-often outcome-determinative-concept on which the entire [Hague Convention] system is founded." Understood in an ordinary and nontechnical way, a child's "habitual residence" is simply the place where he usually or customary lives.'[I]n their natural and ordinary meaning[,] the words mean that the person must be habitually and normally resident [in that country], apart from temporary or occasional absences of long or short duration.' " Mozes, 239 F.3d at 1073. Or, put another way, "we might say that if we observe someone centering his life around a particular location during a given period, so that every time he goes away from it he also comes back, we will call this his habitual residence." Under the Hague Convention, a petitioner bears the burden of establishing by a preponderance of the evidence a child's habitual residence at the time of the contested removal. Mota v. Castilo, 692 F.3d 108, 112 (2d Cir.2012) (citing 42 U.S.C. s 11603(e)(1)(A)). ( The Court observed in a footnote that parents cannot stipulate to habitual residency, see Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir.2010). Determining a child's habitual residence often becomes difficult when parents move a child from one country to another, raising the question of which country is the "habitual residence" of the child. In evaluating these cases, the Court has looked to the intent of the parents as a particularly important factor in understanding the context of a child's move to another country. As it explained: Focusing on intentions gives contour to the objective, factual circumstances surrounding the child's presence in a given location. This approach allows an observer to determine whether the child's presence at a given location is intended to be temporary, rather than permanent. Accordingly, "we will presume that a child's habitual residence is consistent with the intentions of those entitled to fix the child's residence at the time those intentions were mutually shared." At the same time, however, "parental intent cannot alone establish a child's habitual residence," nor can it prevent a habitual residence from changing. Instead, a child's habitual residence changes when the child becomes settled in another country, even if one or both of the parents intend for the child to return to the original country of habitual residence. As the Court has explained: "The question in these cases is not simply whether the child's life in the new country shows some minimal degree of settled purpose, but whether we can say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed." In other words, the Court asks: "[W]ould returning the children ... be tantamount to sending them home?" Accordingly, although "[n]ormally the shared intent of the parents should control the habitual residence of the child," that intent is not controlling when "the evidence unequivocally points to the conclusion that the child has [acclimated] to the new location." Gitter, 396 F.3d at 134. The two-step framework is flexible enough to account for the varied circumstances of individual cases. When applying this framework, the age of the child and the time spent in the respective countries can affect how much weight a court should place on parental intent. For instance, parental intentions become less relevant the longer a child remains in the new environment. In fact, once a child has "been living in one country ... for a sufficiently long period," then "questions as to the purpose of the residence become irrelevant,". Accordingly, although it makes sense to " 'regard the intentions of the parents as affecting the length of time necessary for a child to become habitually resident, because the child's knowledge of these intentions is likely to color its attitude toward the contacts it is making,' " courts must not forget that the core concern of "habitual residence" is where a child normally or usually lives. Once a court " 'can say with confidence' " that the child has become settled into a new environment, habitual residence in that country is established. Gitter, 396 F.3d at 134. [It noted in a footnote that when a child is younger, with less sense of the surrounding environment, courts place more emphasis on the intentions of the parents. The Court summarized its rule as follows: "[t]o determine which country is a child's country of habitual residence under the Hague Convention, we apply the two-part test set forth in Gitter v. Gitter." We "begin an analysis of a child's habitual residence by considering the relevant intentions," because "[f]ocusing on intentions gives contour to the objective, factual circumstances surrounding the child's presence in a given location." We "presume that a child's habitual residence is consistent with the intention of those entitled to fix the child's residence at the time those intentions were mutually shared." This presumption can be overcome, however, if the evidence shows that a child is settled into (or, "acclimated" to) the new environment-a burden that is more easily satisfied the longer a child has lived in that country. When considering these two steps, the court must not lose sight of the fact that the framework is designed simply to ascertain where a child usually or customarily lives. The Second Circuit held that "a determination of habitual residence under Article 3 of the Hague Convention is a mixed question of law and fact, under which it reviews essentially factual questions for clear error and the ultimate issue of habitual residence de novo. It concludes that a district court "clearly erred" only if a review of the record "leave[s] us with 'the definite and firm conviction that a mistake has been committed.' " Hofmann, 2013 WL 1955846, at *8 (quoting Mota, 692 F.3d at 114). Even assuming that the child was habitually resident in Italy prior to 2009, the Second Circuit concluded that his habitual residence changed to the United States after the parties reached the Settlement Agreement in May and June of 2009. Habitual residence depends on a combination of parental intent and physical presence, but when a child is very young, the shared intent of the parents is of paramount importance. It found no clear error in the District Court's finding that the Separation Agreement-signed by the Mother and Father in May 2009 and June 2009, respectively-demonstrated the parents' shared intent for the child to live primarily in New York. Moreover, the child, who was then less than three years old, had been living with the Mother in New York for several months. Because the child was living in New York, and because the parents agreed that he would continue to reside in New York, the child, in light of his age, was habitually resident in the United States at the time of the Settlement Agreement. The Second Circuit rejected the fathers argument that the Settlement Agreement was invalid under Italian and New York law and therefore cannot support the District Court's finding of shared intent. Regardless of whether the document was enforceable in state court, it was nevertheless clearly probative of the parties 'last shared intent' for the purposes of determining habitual residence under ICARA. The Father acknowledged at trial that when he signed the Agreement he understood (1) its terms; (2) that it provided for the child's residence in New York; and (3) that it would be legally binding, even though he hoped to reconcile with the Mother. Accordingly, the Court found no clear error in the District Court's finding regarding the parents' shared intent that the child would reside in New York. Having found no error in the District Court's determination that the child was habitually resident in the United States at the time of the Settlement Agreement in 2009, the Second Circuit found the child did not become habitually resident in Italy following his return to that country in the summer of 2009. At the first step of the Gitter test, the Court asked whether the evidence offered at trial showed settled mutual intent from which abandonment of the prior habitual residence could be inferred. When considering this issue, "the court should look ... at actions as well as declarations." Gitter, 396 F.3d at 134. Clearly, this was one of those questions of historical and narrative facts in which the findings of the district court are entitled to great deference. See Hofmann, 2013 WL 1955846, at *8 ("The last shared intent of the parents is a question of fact, and the district court's determination in that regard is reviewed for clear error and thus entitled to deference."). Having reviewed the record and the parties' submissions, the Court concluded that the District Court's findings were "amply supported by the record, and there was nothing leaving it with 'the definite and firm conviction that a mistake has been committed. Hofmann, 2013 WL 1955846, at *8 (quoting Mota, 692 F.3d at 114). Although the Mother agreed to the child's return to Italy and attendance at an Italian nursery school, the District Court found credible the Mother's testimony that her stay in Italy was temporary, and that she consistently intended to return to New York for the child to begin kindergarten. Record evidence amply supported this conclusion. For instance, the Mother and the child entered Italy on temporary tourist visas, and they registered for health care in New York even though eligible for public health insurance in Italy. The District Court also credited the Mother's testimony that "her willingness to attempt a reconciliation in Italy was clearly premised on the understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement." Guzzo, 2011 WL 6934108, at *9. Indeed, the Mother returned to New York with the child in November 2010, with the stated expectation of staying permanently in the United States, before she agreed to make another attempt at reconciliation with the Father the following month. Accordingly, it did not disturb the District Court's finding that the parents never shared an intent for their child to abandon his prior habitual residence in the United States. The Court pointed out that second step in the Gitter framework is to examine whether, notwithstanding a lack of shared parental intent to change the child's long-term residence, the child was nonetheless sufficiently settled into (or, "acclimated" to) the new environment such that returning the child to that environment would "be tantamount to sending [him] home." In this case, the five-year-old child lived mostly in Italy from soon after his birth in 2006 until his removal in 2011, and he regularly attended nursery school there. If it were properly raised in this appeal, the Court stated that it might conclude that the child was "acclimated" to living in Italy, that is, it might be able to say with confidence that the child's usual or customary place of residence was Italy, notwithstanding any parental intentions to the contrary. Gitter, 396 F.3d at 134. However, the Court did not address this issue, however, because the Father did not preserve any argument that the child was acclimated to Italy.

White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) [Switzerland] [Rights of Custody]

In White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) the Fourth Circuit affirmed an order which denied the petition for return. Mr. White married Ms. White in Switzerland. Later that year, they had a son in Switzerland. In June 2010, Mr. White and Ms. White separated and Mr.White initiated legal proceedings in Switzerland pertaining to the separation, including rights to the couple's child. In October 2010, the Swiss Court of First Instance of Geneva authorized Mr. and Ms. White's legal separation and granted " custody of the child" to Ms. White. The court also granted visitation rights to Mr. White "two afternoons each weekend, to be expanded to one weekend in two, in agreement with the curator when the time comes." Mr. White learned of the April 24, 2011 departure of Ms. White and the child three days after they had left Switzerland. Ms. White left him a voicemail message saying that she had taken their son on a "holiday" in the United States. Ms. White subsequently claimed that she came to the United States to visit her sister and seek medical care for her son. Doctors in Switzerland had diagnosed the child with autism; in the United States, doctors later diagnosed him with a feeding disorder for which he had been receiving treatment. Since coming to the United States, the child was been present in the country continuously, except for a brief visit to Canada. At the time of the departure of Ms. White and the child to the United States, court- appointed psychologists in Switzerland were conducting an analysis of the parties and the child to assess custody arrangements. In July 2011, at which time Ms. White and the child had resided in the United States for three months, the psychologists issued their preliminary report. In it, they suggested that Ms. White suffered from psychological problems, which affected her ability to properly care for her son, and that the court should transfer custody of the child to Mr. White if her condition did not improve within six months. In September 2011, the Court of First Instance of Geneva issued an emergency ruling prohibiting Ms. White from leaving Switzerland with the child. However, in December 2011, the same court found that it did not have jurisdiction because Switzerland was no longer Ms. White and the child's usual place of residence. In February 2012, the Swiss tutelary court in Geneva also found that it lacked jurisdiction but noted that Ms. White had sole custody of the child and could therefore remove the child from Switzerland without authorization. On April 6, 2012, upon finding that Ms. White and the child were residing in Alexandria, Virginia, Mr. White brought this action in the United States District Court for the Eastern District of Virginia.

 Following a bench trial, the district court denied the petition for return finding that Mr. White did not establish by a preponderance of the evidence that his son's removal breached any rights of custody. The parties filed their appellate briefs in the fall of 2012 and the Court of Appeals heard oral argument in the case on March 20, 2013. One day later, Mr. White filed with it an order of the Court of First Instance of Geneva dated March 15, 2013. In that order, the Court of First Instance related that, in September 2012, Geneva's Court of Justice, an appellate court, found the Geneva courts did have jurisdiction to rule on protective measures for the child of Mr. and Ms. White. Accordingly, although Ms. White and the child remained in the United States and did not appear at the hearing before the Court of First Instance, in its March 2013 order the Court of First Instance purported to adjust its earlier custody arrangements to "[g]rant[ ] to Malcolm WHITE the custody of and parental authority over the child" and "[g]rant[ ] to Soudabeh WHITE a visitation right of the child." Because it was undisputed in this case that Switzerland was the child's habitual residence before his removal, Swiss law determined whether there was a breach of rights.

The Fourth Circuit found that the October 2010 separation order explicitly awarded "the custody of the child ... to Soudabeh WHITE."It reserved to Mr. White only the "right to visit the child ." This language clearly seemed to provide that Ms. White had sole custody and Mr. White had only a "right of access," i.e., a "right to take [the] child for a limited period of time to a place other than the child's habitual residence." Hague Convention art. 5(b). Under the Convention, breach of a right of access alone does not provide cause for return of a child. Mr. White contended, however, that the text of the separation order did not tell the full story because there was a background principle in Swiss law that parents share parental authority. See Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, art. 297 ("During marriage, the parents shall have joint parental authority."). Such parental authority includes joint responsibility for care, education, religion, and legal representation. See id. arts. 296-317. Although Swiss law does specify that, "if the spouses separate, the judge may assign parental authority to one of the spouses,"id. art. 297, in this case the October 2010 separation order did not specifically assign parental authority to either Ms. White or Mr. White. The court found that Swiss parental authority rights alone provide no basis for a wrongful removal action under the Convention. The Swiss Supreme Court has made clear that "subject to an abuse of rights," a parent who holds "exclusive custody is entitled to move with the children, and even abroad, without having to obtain for this the judge's authorization," or the authorization of the other parent. See Tribunal federal [TF] [Federal Supreme Court] June 1, 2010, 136 ATF III 353 P 3.3. This is true even when the other parent retains parental authority rights. See id. PP 3.4-3.5 ("[G]ranting sole custody to one of the parents [removes] from the other the right to decide on the residence ... of the children.... This means that the legal situation of the holder of the restricted parental authority does not suffer any prejudice within the meaning of [ Hague Convention] art. 3 ... if the holder of the exclusive right of custody moves the children out of Switzerland...."). In February 2012, the Swiss tutelary court applied the Swiss Supreme Court's teaching in this very case, explaining that, at the time of removal, "Mrs. Soudabeh WHITE [was] the only one who [held] custody of [her son,]" and "the bearer of sole custody may, breach of law excepted, move with the child, notably to a foreign country." The Court distinguished the out-of-circuit cases Mr. White cited in which courts found removal wrongful, ostensibly based on breach of parental authority-type rights. In none of those cases were the petitioning parent's rights subject to the removing parent's sole right to remove under a governing court order, as interpreted by the courts of the country of habitual residence. Moreover, in most of the cases Mr. White cited, unlike this one, the petitioning parent had a ne exeat right to prohibit the other parent from removing the child. The district court did not err in holding that Mr. White had not demonstrated that the removal of their child by Ms. White breached any parental authority rights he retained at the time of removal.

Mr. White maintained that Ms. White's removal "secretly and in the midst of a court-ordered psychological evaluation, was intended to compromise the Father's relationship with the child and threatened the child's well-being," constituting an "abuse of rights under Swiss law."The Swiss Supreme Court has held that "a relocation without reasonable grounds, that is to say only intended to compromise the personal relationships between the child and the other parent," may be an abuse of rights and consequently a breach of rights of custody under the Convention. See Tribunal federal 136 ATF III 353 P 3.3. Further, "the spouse who holds the right of custody may be barred from taking the child outside the country ... provided that the wellbeing of the person concerned is seriously threatened by this relocation."Id . However, under Swiss law, typical relocation and integration difficulties "do not normally constitute a serious threat" and so "there will rarely be a serious threat to the wellbeing of the child when he is still very young."Id. Whether there was an "abuse of rights" by Ms. White therefore hinged on the factual question of why she decided to leave Switzerland with the child and whether her decision to do so seriously threatened his well being. Ms. White testified at trial in the district court that she brought her son to the United States to see her sister and to seek medical treatment. The district court explicitly found Ms. White's explanation credible. The Court could not hold that the district court clearly erred in finding that Ms. White had legitimate reasons for coming to the United States. It therefore rejected Mr. White's contention that Ms. White's removal of the child from Switzerland constituted an abuse of her rights under Swiss law.

Mr. White relied on the Swiss Court of First Instance's very recent March 2013 order purporting to transfer custody of the child from Ms. White to Mr. White two years after the child's removal to the United States. Mr. White maintained that the new order "dramatically [a]ffects this case" and "confirms that the Swiss Court has always been in accord with [his] position." The Court held that the only reasonable reading of the Convention is that a removal's wrongfulness depends on rights of custody at the time of removal. Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal. Moreover, the Convention explicitly provides that removal is only wrongful when " at the time of removal " custody "rights were actually exercised ... or would have been so exercised but for the removal."Id. art. 3(b). Thus, courts have repeatedly assumed rights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal. Because the Court had ot previously addressed directly the question of whether a custody determination after removal affects a Hague Convention case, it looked also to the practice of our sister signatories and concluded that our sister signatories agree that orders claiming to adjust custody arrangements after removal or retention do not typically affect rights under Article 3 of the Convention. Accordingly, it held hold that the determination of whether removal is wrongful is based on rights of custody at the time of removal. The Swiss Court of First Instance's March 2013 order did not purport to reject the authenticity of, or retroactively alter, the previously governing October 2010 order granting Ms. White sole custody of the child. The October 2010 order, which was in effect at the time of the child's removal, therefore controlled this case.

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.