Burch v Burch, 2013 WL 1909472 (S.D.Ind.) [Finland] [Habitual Residence] [Rights of Custody] [Petition Granted]

In Burch v Burch, 2013 WL 1909472 (S.D.Ind.) Petitioner Merita Vilen-Burch filed a complaint and and Petition for Return of the Children to Finland on February 6, 2013. The Court observed at the outset that the Federal Rules of Evidence apply during petition hearings, "with the exception that authentication of documents is not required."Luedtke, 2012 U.S. Dist. LEXIS 90584 at *2. See also 42 U.S.C. s 11605; Fed.R.Evid. 1101(b). The Court gave Ms. Vilen-Burch's Petition expedited treatment, as required by the Hague Convention. 19 I.L.M. 1501 ("[t]he judicial or administrative authority of contracting states shall act expeditiously in proceedings for the return of the children").

Ms. Vilen-Burch, who was represented by counsel, and Mr. Burch, pro se, were the parents of a thirteen-year-old daughter ("H") and an eleven-year-old son ("S"). Ms. Vilen-Burch and Mr. Burch were married on June 18, 1999 in Cozumel, Mexico. At the time of their marriage, Ms. Vilen-Burch lived in Finland and Mr. Burch lived in the United States. Mr. Burch moved to Finland in February 2000, and they lived in Finland-where both H and S were born-until 2003 when they moved to Texas. They lived in Texas until 2006, and then moved back to Finland where Ms. Vilen-Burch and Mr. Burch physically separated in 2008. Upon their separation, H and S remained in Ms. Vilen-Burch's physical custody. Mr. Burch stayed in Finland for approximately six months, and then moved to Venice, Florida where he lived until 2010. In 2010, he moved to Connersville, Indiana where he currently lived. H and S visited their paternal grandparents, Jerry and Sue Burch, in the United States from June 27, 2008 to August 4, 2008. Both Ms. Vilen-Burch and Mr. Burch signed a Contract stating "[o]ur common children [H and S], who permanently live and reside in Finland, may go and visit their grandparents in USA between 27 of June, 2008 and August 4th, 2008. Children have to be absolutely returned back to Finland." Mr. Burch did not accompany H and S on their visit. In the summer of 2009, H and S visited Mr. Burch, who had moved to the United States in late 2008, in the United States from May 31 through July 8. Ms. Vilen-Burch and Mr. Burch's father, also named Jerry Burch, signed a Contract which provided "[H and S,] the children of Merita Vilen-Burch and Jerry Burch II, who permanently live and reside in Finland, may go and visit their father and grandparents in USA between 31st of May and 8 of July, 2009. Children have to be absolutely returned back to Finland." The Contract was signed by Mr. Burch's father rather than Mr. Burch because Mr. Burch's passport had been revoked for nonpayment of child support for different children from a previous relationship, so Mr. Burch's father was required to transport the children back to Finland.

On June 23, 2009, the Helsinki, Finland District Court issued a Judgment of Divorce for Mr. Burch and Ms. Vilen-Burch. The Judgment of Divorce did not address custody arrangements for H and S, but merely stated that "Judgment of divorce between the spouses is pronounced." H and S again visited Mr. Burch during the summer of 2011 in Connersville, Indiana, where he was living. The visit was scheduled to take place from May 28 through August 10, but Ms. Vilen-Burch and Mr. Burch agreed to extend the childrens' stay through the 2011-2012 academic year so that H and S could attend school in Connersville, Indiana. In May 2012, Ms. Vilen-Burch began discussing summer plans for H and S with Mr. Burch, including when the children would return to Finland. When Mr. Burch hung up on her during a telephone call regarding scheduling the childrens' return, Ms. Vilen-Burch realized that the situation was serious and that Mr. Burch did not intend to return them to Finland. Mr. Burch did not, in fact, return the children to Finland in June 2012 as he and Ms. Vilen-Burch had agreed. A Request for Return was filed with the United States Department of State on Ms. Vilen-Burch's behalf on June 18, 2012. Ms. Vilen-Burch also notified school officials in Connersville, Indiana that she did not consent to the childrens' continued enrollment and attendance at the Connersville schools and that Mr. Burch was not allowed to sign any forms on her behalf. In August 2012, when Mr. Burch became aware that Ms. Vilen-Burch had contacted the State Department and initiated proceedings to have the children returned to Finland, however, H and S began to exhibit disinterest in communicating with her. Testimony at the hearing indicated that, since August 2012, Ms. Vilen-Burch offered the possibility of Mr. Burch returning the children to Finland and Ms. Vilen-Burch and Mr. Burch entering into a formal custody agreement in the United States. However, no such agreement was ever reached.



The district court found that H and S habitually resided in Finland when they came to visit Mr. Burch in the summer of 2011. This case was one of wrongful retention, not wrongful removal. Mr. Burch conceded that Indiana was not H and S's habitual residence. His main argument regarding habitual residence, which he attempted to present at the hearing and appeared to present in his filings, is that he and Ms. Vilen-Burch were somehow duped into moving to Finland in the first place because the company that offered Ms. VilenBurch employment, Arctic Image Ltd. ("AI" )-which was the ultimate reason for their move-was allegedly being defrauded by its Chief Executive Officer. The Court found the motivation behind the company's offer of employment to Ms. Vilen-Burch, and the fact that the employment ended up lasting only a short time, to be wholly irrelevant to the fact that Mr. Burch and Ms. Vilen-Burch jointly agreed to move to Finland, and H and S remained residents of Finland up to their summer 2011 visit to the United States. Moreover, the evidence here established that Ms. Vilen-Burch and Mr. Burch only intended that H and S stay in the United States for the 2011-2012 academic year. Ms. Vilen-Burch advised the school that H and S attended in Finland that they would be taking a year abroad to attend school in the United States, and Mr. Burch commented in an email message that he had his work "cut out" for him for the "next 12 months" when the two reached an agreement regarding the 2011-2012 academic year. Mr. Burch presented no evidence showing that either he Ms. Vilen-Burch intended for H and S to stay any longer at that time. The Court concluded that Finland was H's and S's habitual residence when they travelled to the United States in 2011 to visit Mr. Burch.

There was no formal agreement or court order regarding custody of H and S. Based on the Finland Act, the Court concluded that Mr. Burch and Ms. Vilen-Burch had joint custody of H and S when the children came to visit Mr. Burch in the United States in 2011. By retaining H and S in the United States past the agreed-upon school year, Mr. Burch "effectively precluded [Ms. Vilen-Burch] from caring for the children or having any say in where the children would reside."Luedtke, 2012 U.S. Dist. LEXIS 90584 at *13. Accordingly, Mr. Burch breached Ms. Vilen-Burch's custody rights and his retention of the children in the United States was wrongful.

The Court also determined that Ms. Vilen-Burch was exercising her custody rights before Mr. Burch wrongfully retained H and S in the United States, and that she  established by a preponderance of the evidence that Mr. Burch wrongfully retained H and S in the United States. The Court questioned H and S separately, in camera. Given S's age, and his understandably emotional state while testifying, the Court found that S had not attained an age and degree of maturity to invoke the age and maturity exception. Moreover, he disclosed considerable influence by Mr. Burch, who had S promise the morning of the hearing that he would "never leave [Mr. Burch]'s side." Accordingly, the Court found it improper to consider his testimony in determining whether the exception applies. The Court further found that, while H appears to have the maturity of an average thirteen year-old, her expression of a generalized desire to remain in the United States, coupled with the Court's finding that she had been strongly influenced by Mr. Burch, led to the conclusion that the mature child exception did not apply here. H articulated a desire to remain in the United States because she was involved in various extracurricular activities, she believes she would do better in school here than she would in Finland, and she did not want to move again. These reasons were simply not sufficient to invoke the exception. The Court could not consider H's wishes to remain in the United States because she had been unduly influenced by Mr. Burch. H's testimony indicated that Mr. Burch has given her certain information regarding these proceedings that was false and/or meant to malign Ms. Vilen-Burch or cause H and S to mistrust her and it declined to apply this exception.

East Sussex Children Services v. Morris, --- F.Supp.2d ----, 2013 WL 243403 (N.D.W.Va.) [United Kingdom] [Rights of Custody] [Deposit Passport] [Petition Granted]

In East Sussex Children Services v. Morris, --- F.Supp.2d ----, 2013 WL 243403 (N.D.W.Va.) Petitioner East Sussex Children Services' a Verified Petition For Return of Child to United Kingdom of S.A.M., born in 2000. Respondent Carly Louise Morris was S.A.M.'s mother and a citizen of the United Kingdom. Respondent Ralph Regis Morris was the Mother's husband, S.A.M's step-father, and a citizen of the United States. Mother and Step-Father were married on September 27, 2010 in Cecil County, Maryland. Petitioner, East Sussex Children Services, was the social services division of the East Sussex County Council. East Sussex supervised S.A.M. since February 21, 2010 because S .A.M. was subject to a Child Protection Plan after East Sussex found neglect and risk of emotional harm to S.A.M. and her half-brother, A. Since October 2010, there had been ongoing proceedings regarding S.A.M.'s care, residence, and contact in the Hastings County Court in England and in the High Court of Justice, Principal Registry of the Family Division in England. Katie Smee-Giles, a senior practitioner at East Sussex, supervised S.A.M.'s case since July 11, 2011.

 In the proceedings involving S.A.M., Mother sought leave of court to remove S.A.M. permanently from the United Kingdom and to relocate S.A.M. to the United States to live with Step-Father. In December 2011, the Hastings County Court  did not grant Mother permission to relocate with S.A.M., and the court ordered Mother to file a statement with the court "(a) setting out the status and chronology of any application for a visa for herself and S.A.M. to move to the USA, (b) her intention as to her domestic arrangement if and when she relocates, and (c) her proposal for the future contact of S.A.M. and herself with A. If and when she does settle in the USA.".
 Mother and Step-Father were also ordered to cooperate in a background check to be conducted by Children and Families Across Borders, which included a background check in the United States of the Step-Father. On February 1, 2012, the Hastings County Court ordered Mother to file S.A.M.'s passport with the solicitors for the guardian or with the court office at Hastings County Court within 48 hours of being served with the order. On February 20, 2012, Mother filed S.A.M.'s passport with Mother's solicitor. Mother's solicitor undertook to the court "not to release the passport of [S.A.M.] nor to release the passport to any other party without the prior consent of the court." Thus, in order for Mother to have S.A.M.'s passport returned to her, she would need the consent of the court.

 Mother alleged in her testimony that about a month later she was planning for holiday in the United States and she forgot that she had lodged S.A.M.'s passport with her solicitor. As a result, Mother alleged she filed for replacement passports for herself  and S.A.M. on April 7, 2012. Mother told the passport agency that she needed a replacement passport for S.A.M. because she had put the passport in a safe place at home and could not locate it. Mother and Step-Father testified that Mother did not remember that S.A.M.'s passport was with Mother's solicitor until Mother spoke with Step-Father the evening after she applied for the replacement passports. At that time, Step-Father reminded Mother that S.A.M.'s passport was with Mother's solicitor.
 On April 24, 2012, Mother received replacement passports for herself and S.A.M. from the United Kingdom's Passport Agency. Mother did not notify her solicitor or the court that she had applied for and received a replacement passport for S.A.M. On April 27, 2012, Mother also applied for and obtained a travel visa for the United States for herself and S.A.M.

 On May 31, 2012, Ms. Smee-Giles met with Mother. Ms. Smee-Giles testified that at the meeting, Mother informed Ms. Smee-Giles that her Visa application had been delayed for some time. However, only one day after the meeting, on June 1, 2012, Mother removed S.A.M. from the United Kingdom to Canada. On June 4, 2012, Mother
 and S.A.M. entered the United States via the Rainbow Bridge in Niagara Falls. Mother and S.A.M. met Step-Father at Niagara Falls. Mother testified that S.A.M. was so happy to be with Step-Father that she could not separate them. In the following days, Mother traveled with S.A.M. to Step-Father's home in Hedgesville, West Virginia. Since this time, S.A.M. has resided in Hedgesville, West Virginia with Mother and Step-Father. Until S.A.M .'s removal from the United Kingdom on June 1, 2012, S.A.M. has always lived there. She attended school in the United Kingdom, and she had friends and extended family there.

 On June 11, 2012, Mother e-mailed Ms. Smee-Giles to inform her that a scheduled supervised visit between S.A.M. and her half-brother A. could not take place because S.A.M. had chicken pox. The Court found that Mother wrote the e-mail to deceive East Sussex as to her and S.A.M.'s whereabouts. Ms. Smee-Giles testified that Mother's e-mail was unusual as she had never received an e-mail from Mother, so, on June 12, 2012 she conducted an unannounced visit to the family home. When she arrived at the family home, it was clear that Mother and S.A.M. had left the address. Ms. Smee-Giles testified that the house was locked up and that there was a mattress sitting in the doorway. At that point, Ms. Smee-Giles notified S.A.M.'s guardian, and S.A.M.'s guardian called an emergency hearing in Hastings County Court. At the emergency hearing, the Hastings County Court entered an Interim Care Order placing the Child in the care of East Sussex County Council Social Services. The Order granted East Sussex Children Services and East Sussex County Council shared parental responsibility over S.A.M. under the Children Act of 1989. The Order also provided the following: WARNING: Where a Care Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or leave of court. However, the local authority, in whose care the child is, may remove the child from the United Kingdom for a period of less than 1 month. It may be a criminal offence under the Child Abduction Act 1984 to remove the child from the United Kingdom without the leave of the court.

 On June 28, 2012, prior to discovering that Mother had removed S.A.M. from the United Kingdom, Justice Moylan of the High Court of Justice, Principal Registry of the Family Division, entered a Passport Order ordering the Mother to hand over to the Tipstaff all of S.A.M.'s and Mother's passports and any and all other travel documents, prohibiting Mother from obtaining or attempting to obtain replacement passports for
 herself or S.A.M., and prohibiting Mother from removing S.A.M. from the United Kingdom. After learning of S.A.M.'s removal from the United Kingdom, East Sussex prepared and filed its Application for Return of the Child and submitted the Application to the Central Authority for England and Wales on July 5, 2012. The Application was transmitted to the United States Central Authority. On December 3, 2012, Petitioner filed its Verified Petition for the Return of the Child to the United Kingdom and Issuance of Show Cause Order.

 On December 13, 2012, the Court conducted a hearing to show cause why the Petition should not be enforced. The Court ordered Mother to turn into the Clerk of Court her passport and S.A.M.'s passport on December 19, 2012, which was the day after the Respondents and S.A.M. were required to attend a previously scheduled immigration interview in Pittsburgh, Pennsylvania, regarding their application for United States citizenship. On December 19, Mother turned in her passport and S.A.M.'s passport to the Clerk of Court for safe-keeping until the case was resolved. On December 21, 2012, Mother and S.A.M. received their green cards. Mother was ordered to surrender S.A.M.'s green card to the clerk of the court for safe-keeping.


 The district court found that Mother made a unilateral decision to remove S.A.M. from the United Kingdom. On the date of removal, Petitioner was unaware of Mother's intention to remove the child, and Petitioner had not acquiesced to S.A.M.'s removal., S.A.M. had lived in the United Kingdom her whole life. S .A.M. attended school in the United Kingdom, and she had extended family and friends there. Step-Father and Mother testified that on June 1, 2012, Mother's intention was merely to vacation in Canada and then in the United States at Niagara Falls. Step-Father admitted on cross-examination that, at the time S.A.M. entered the United States, her home was in the United Kingdom. Moreover, Mother could not create a new habitual residence by wrongfully removing S.A.M. Therefore, the Court found by a preponderance of the evidence that the United Kingdom was the habitual residence of S.A.M. immediately before her removal to the United States.

 The Court found that East Sussex Children Services asserted the United Kingdom's court's custody rights under the Hague Convention prior to S.A.M.'s removal. On February 21, 2010, S.A.M. was under a Child Protection Plan, enacted due to the risk of emotional harm to S.A.M. According to Ms. Smee-Giles' testimony, she was required under United Kingdom law to see children on those plans at least every ten days in person. Therefore, East Sussex Children Services regularly supervised S.A.M.'s well-being. In addition, the Child Protection Plan at issue in this case required Mother to notify East Sussex of any intention to remove the child from the country, or even when moving addresses within the country. When Mother removed S.A.M. from the United Kingdom, the Child Protection Plan was still in place. Most importantly, on February 1, 2012, the Hastings County Court ordered Mother to "lodge the passport of [S.A.M.] ... with either Elaine Parkes & Co., as solicitors for the guardian, or with the court office at Hastings County Court." Mother lodged S.A.M.'s passport with her Solicitor, who took an oath to the court not to release S.A.M.'s passport "to any other party without the prior consent of the court." 5. Ms. Smee-Giles testified that the Court's order regarding S.A.M.'s passport was to ensure that should S.A.M. be removed from the country, the court would be made aware of that intention prior to her removal. Pursuant to Petitioner's Exhibit 4, Mother would need consent of the court to obtain S.A.M.'s passport in order to leave the country. Thus, if Mother desired to remove S.A.M. from the country, she must inform and receive permission from the English court. According to Petitioner's Exhibit 16, an Affidavit of English and Welsh Law admitted pursuant to Article 14 of the Hague Convention, the English Court exercised its rights of custody on February 20, 2012, when Mother's solicitor undertook to the court not to release S.A.M.'s passport to any other party without the prior consent of the court. The Court found that the February 1, 2012 and February 20, 2012 orders created a ne exeat right, and the United States Supreme Court has concluded that "ne exeat rights are rights of custody...." Abbott, 130 S.Ct. at 1993.

 The Court found that the Hastings County Court's February 1, 2012 order was a ne exeat order that conferred custody rights upon the court. Petitioner, East Sussex Children Services, asserting the court's custody rights, could determine S.A.M.'s residence by requiring East Sussex Children Services' and the Hastings County Court's consent for S.A.M. to leave the United Kingdom. Petitioner and the United Kingdom's courts acquired custody rights through the court's ne exeat order. Although a ne exeat order does not fit within "traditional notions of physical custody," the Convention nevertheless established an increasingly broad definition of custody rights. Abbott, 130 S.Ct. at 1991. Therefore, construing the definition of custody rights broadly pursuant to the text and purpose of the Hague Convention, the Court found that Petitioner had custody rights over S.A.M. at the time of removal.

 In determining whether removal is wrongful, the Fourth Circuit Court of Appeals will liberally find "exercise" of a nonremoving parent's custodial rights, as required for removal to be wrongful under the Hague Convention whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. Bader, 484 F.3d at 671. Under this approach, a person [who] has valid custody rights to a child under the law of the country of the child's habitual residence ... cannot fail to "exercise" those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The Petitioner had custody rights under the February 2010 Child Protection Plan. Petitioner regularly monitored and supervised Mother and S.A.M. pursuant to the plan, and this included an in person visit with S.A.M. every ten days. Also, in February 2012, the Court instructed Mother to lodge S.A.M.'s passport with S.A.M.'s solicitor or the Court for safe-keeping. Although Mother ultimately turned S.A.M.'s passport into Mother's solicitor, the solicitor undertook not to release the passport to any other party. The Court's order exercised custody rights as it was designed to prevent Mother from unilaterally removing S.A.M. from the United Kingdom. Therefore, the Court found that Petitioner was exercising its custody rights at the time of S.A.M.'s removal.

 Accordingly, the Court concluded that pursuant to the Hague Convention and ICARA, Petitioner had proven by a preponderance of the evidence that on June 1, 2012, Mother wrongfully removed S.A.M. from the United Kingdom-S.A.M.'s habitual residence at that time.

Berezowsky v. Ojeda, 2013 WL 150714 (S.D.Tex.) [Mexico] [Habitual Residence] [Rights of Custody] [Deposit Passport] [Petition Granted]

 In Berezowsky v. Ojeda, 2013 WL 150714 (S.D.Tex.) petitioner, Michelle Berezowsky Gomez and the respondent, Pablo Angel Rendon Ojeda, who were both Mexican nationals and never resided permanently in the United States, were the parents of a three-year old child, who was born in the United States on May 31, 2009. The district Court granted the Petition.

On December 11, 2009, the respondent filed a suit for acknowledgment of paternity in the 24th Family Court in Mexico City, Mexico. On February 17, 2010, the respondent filed a petition to adjudicate parentage in the 410th District Court of Montgomery County, Texas where the petitioner was living with the child. After a jury trial, the Texas state court entered an amended final order on October 21, 2011, establishing the petitioner and the respondent as "joint managing conservators" and awarding them joint parental rights. Although the Texas order gave the respondent the right to determine the residence of the child, it ordered that the "primary residence of the child be relocated and redistricted to" either one of three places in Mexico: (1) Delegacion Coyoacan, Distrito Federal; (2) Delegacion Tlaplan, Distrito Federal; and/or; (3) Cuernavaca, Morelos. The Texas order further required that each parent obtain the consent of the other before traveling outside of Mexico with the child. The Texas order reflected that the respondent's residence would be Cuernovaca, Morelos, in Mexico, and the petitioner's residence would be Mexico City, Mexico, after October 18, 2011. The respondent traveled to Mexico with the child on October 7, 2011, and the petitioner returned to Mexico on October 18, 2011.

Thereafter, inter alia, suit was also commenced and consolidated into the 24th Family Court of Mexico City where the petitioner was granted exclusive parental rights and rights of possession to the child. Because the outcomes of the proceedings proved unfavorable to the respondent, he unsuccessfully moved to dismiss the case in the 24th Family Court of Mexico City. Undeterred, the respondent filed suit in the 11th Family Court of Mexico in September of 2012 to enforce the orders of the Texas state court. Using fictitious names for himself and the petitioner and failing to mention the order of the 24^th Family Court that had granted the petitioner exclusive parental rights, the respondent successfully secured an order permitting him to have immediate possession of the child. The order of the 11th Family Court purported to domesticate the orders of the Texas state court but there was no indication in the record that the respondent followed the proper procedure to do so. Moreover, the order of the 11th Family Court, which noted that it was an "emergency measure," did not explicitly terminate the petitioner's rights of custody and the respondent acknowledged during the hearing before this Court that he never filed a suit to terminate the petitioner's rights in Mexico. Based on the order of the 11th Family Court of Mexico, the respondent proceeded to the child's school on October 11, 2012, and seized the child. Afterwards, the respondent crossed the border from Mexico into the United States, without permission from the petitioner, giving rise to the Amber alert that was issued by the Mexican officials. Subsequently, the 24th Family Court voided the orders of the 11th Family Court based on, inter alia, the fact that the respondent had obtained the orders using fictitious names and because it was contrary to the order of the 24th Family Court that had granted the petitioner exclusive parental rights.

The petitioner, who had been attending school in the United States, returned to Mexico on October 18, 2011. The child resided in Mexico from October of 2011 until November 1, 2012, when the respondent traveled to the United States with him. The petitioner petitioned the Court under the Convention, claiming that on or about October 11, 2012, the respondent abducted the child from preschool in Mexico City and successfully left Mexico for Texas where the child remains.

On December 18, 2012, the Court took possession of all the passports issued in the child's names and ordered that the child not be removed from the jurisdiction of the Court. On December 20, 2012, the Court issued a temporary order, setting parameters for parental access to the child pending a full hearing. The Court found that petitioner satisfied all three elements of a prima facie case by a preponderance of the evidence and that the respondent has failed to establish his claimed defense by clear and convincing evidence.

The Court found that Mexico was the child's habitual residence. The Fifth Circuit has joined "the majority" of Circuits that "have adopted an approach that begins with the parents' intent or settled purpose regarding their child's residence." Larbie, 690 F.3d at 310. This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. In those cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind." Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion." Larbie, 690 F.3d at 311. Although the child was born in the United States, the facts established that the parents intended to make Mexico the child's habitual residence. Specifically, the petitioner and the respondent were both Mexican nationals, they met while residing in Mexico, they were not citizens of the United States, did not own real property in the country, and did not have immigration status that allowed them to permanently reside here. Moreover, the respondent moved the child to Mexico pursuant to a Texas court order that designated Mexico as the child's place of residence. In the Texas order, both parents listed Mexico as their place of residence. The respondent admitted, and the evidence established, that he represented to the Mexican courts that his residence was Mexico. In other words, the evidence establishes that neither parent has meaningful or deep-rooted ties to the United States. Moreover, the child resided in Mexico for approximately thirteen months and was attending school there before the respondent removed him to the UnitedStates. Therefore, based on these undisputed facts, the Court concluded that Mexico was the child's habitual residence.

The Court held that the respondent's removal of the child to the United States was a breach of the petitioner's "rights of custody" under both the laws of Mexico and Texas. The order of the 24th Family Court of New Mexico gave the petitioner full and exclusive parental rights over the child. Moreover, the Court found persuasive the testimony of an expert in Mexican law, that as the sole parent listed on the child's birth certificate, the petitioner was the only recognized parent in Mexico and no order of any Mexican court ever revoked her parental rights. Although the respondent obtained an order from the 11^th Family Court that gave him rights of possession of the child, that order did not terminate the petitioner's parental rights. Preliminarily, the respondent, as another Mexican court subsequently found, used fictitious names to file the suit that resulted in the favorable order and failed to mention the prior unfavorable order against him from the 24th Family Court. Therefore, this Court was not obliged to give substantial weight to an order that was apparently obtained, at the very least, through misrepresentations. In any event, the order of the 11th Family Court, which noted that it was an emergency measure, never expressly revoked the petitioner's rights of custody.

The Court was also of the opinion that, under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), the 410th District Court of Montgomery County, Texas, that granted rights of custody to the petitioner and the respondent, lost "exclusive continuing jurisdiction" when, pursuant to its own order, the parents not only moved to Mexico with the child, but established Mexico as the child's residence. Even assuming that Texas did not lose jurisdiction over the parties, at the very least, Mexico had concurrent jurisdiction because all the parties, including the child, resided in Mexico. Mexican courts affirmatively determined that they had jurisdiction over the parties. Moreover, even assuming arguendo that the Texas court retained continuing and exclusive jurisdiction over the parties, the petitioner would still have rights of custody under the October 21, 2011, order which granted the parties joint parental rights. While subsequent orders from January and February of 2012 purportedly modified the October 21, 2011, amended final order, this Court is of the opinion that those orders were entered in violation of the Due Process clause of the federal Constitution and the Hague Convention on service of process. Under the Hague Service Convention, signed by both Mexico and the United States, a Mexican national, like the petitioner, can be served with a foreign proceeding in Mexico only through the Central Authority of Mexico. See Hague Service Convention, arts. 2-5; Here, there was no evidence in the record that the respondent served the suits that resulted in the Texas orders modifying parental rights in accordance with the Hague Service Convention. Therefore, those orders were void. Since the Texas state court order designated Mexico as the child's residence, and specifically required that the child not travel outside of Mexico without consent of the parents, the respondent breached the petitioner's rights of custody under Texas law and, also under Mexican law, when he removed the child to the United States, admittedly, without the petitioner's permission. Finally, the Court concluded that the petitioner has established by a preponderance of the evidence that she was exercising her rights of custody prior to the child's removal from Mexico. The Fifth Circuit has noted that it is "relatively easy" to show that a petitioner was exercising her rights of custody, either jointly or alone, or would have exercised them but for the removal or retention. The evidence established that the petitioner, as the primary custodian of the child in Mexico, regularly exercised her rights of custody, including, inter alia, taking the child to school and providing for his welfare.

Taylor v Hunt, 2013 WL 620934 (E.D.Tex.) [Canada] [Habitual Residence] [Grave Risk of Harm] [Guardian Ad Litem] [Guardian Fees] [Petition Granted]

 In Taylor v Hunt, 2013 WL 620934 (E.D.Tex.) on August 24, 2012, Petitioner Akele Mae Taylor filed an action seeking the return of her son, a minor ("KH") to Canada.

The Magistrate found that the Petition should be granted. KH was born in Regina, Saskatchewan, Canada on February 15, 2008. Petitioner and Respondent were married on May 29, 2008 in Regina, Saskatchewan, Canada and bought a house together in Regina, Saskatchewan, Canada. According to Petitioner, from 2004 until their separation in 2009, Petitioner and Respondent lived together and maintained a home in common in Canada. Petitioner alleged that KH lived with them together in Canada until 2009 and with her in Canada after the separation. In 2010, Respondent moved to Texas. Petitioner alleged that she brought KH from Canada to Texas to visit his father on December 20, 2011. According to Petitioner, she and Respondent agreed that KH would only remain in Texas for a month and that KH would be surrendered to her in January 2012. Apparently, Respondent subsequently requested more time to keep his son and Petitioner agreed. Petitioner claims that after visiting her son in Texas for his birthday in February 2012, she agreed to let him stay an additional month with his father in Texas. Petitioner alleged that since March 2012 she repeatedly requested that KH's return be arranged and had been told that KH "isn't ready to go back." Petitioner claimed that she arrived in Texas on July 21, 2012 to pick up KH and take him back to Canada but that he was not returned to her.

On August 8, 2012, Petitioner commenced proceedings in Canada for custody and divorce. Respondent commenced proceedings in Texas state court, seeking divorce and custody of his child.

The Court found that Petitioner sustained her burden in showing that KH was a habitual resident Canada at the time of retention. Until his trip to Texas, KH had lived in Canada consistently. He was born in Canada and was a Canadian citizen. And, although it appeared he was taken care of by various individuals for extended periods of time in Canada while his mother worked, the Court found he had a settled purpose there. As to Respondent's claim that Canada can no longer be deemed his place of habitual residence because he and Petitioner agreed that KH would move to Texas, the Court did not find such shared parental intent. Petitioner consistently testified that it the December 2011 trip to Texas was intended as a visit.

Petitioner also testified that she always anticipated that KH would return to Canada after having spent sufficient time with his father. Petitioner further testified that she sent KH to Texas with a single suitcase containing "probably about three sweaters, two pair of shoes, seven pair of pants, ten t-shirts, a couple of his costumes that he likes to wear, and two or three pair of pajamas,"enough clothing for a visit but not all of his clothes. Respondent stated that "[t]here was never a conversation about the length of time [KH] was going to be here [in Texas]" but stated that it had always been Petitioner's and Respondent's plan to move their family to Texas. Upon further examination by the Court as to the reason for KH's trip to Texas, he stated "there was never a conversation or a matter of him visiting. There was a matter of when she would be coming down here herself."On cross-examination, Respondent could not testify as to any express and overt agreement as to the purpose of the December 2011 trip. Despite extensive questioning from the Court as to the specific conversation or conversations between Petitioner and Respondent regarding KH's December 2011 trip to Texas, Respondent was not able to testify about any specific conversation, maintaining that a move to Texas had always been the family's plan. The fact that the parties may have once agreed to move to Texas as a family-which did seem to be the case here-or that Petitioner referenced her desire to become a U.S. citizen and move to Texas in a July 2012 email (after the retention of KH) was not enough to determine the parents' shared intent at the time of removal and retention for purposes of the Court's determination.

The Court found Petitioner had shown by a preponderance of the evidence that KH's initial move from Canada "was clearly intended to be for a specific, limited duration." Id. at 311.While the Court finds unequivocally that Respondent had "private reservations or intentions" that KH's December 2011 trip to Texas was to be permanent, this is not enough. Because there is insufficient evidence to find that both parents intended for KH to abandon Canada and because no objective facts point unequivocally to the intention for KH to move to Texas, Canada remains KH's habitual residence. Given the facts of this case, the holding in Abbott, and the provisions of the Alberta Family Law Act cited by Petitioner, the Court found that Petitioner had shown by a preponderance of evidence her custodial rights to KH under Canadian law, and that she had shown that she was exercising those custodial rights at the time of retention. Therefore, Petitioner having shown all three elements by a preponderance of the evidence, the Court found that KH has been wrongfully retained in Texas.

The Court found that Respondent failed to establish that there is a grave risk that KH's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Petitioner testified that she worked as an escort and exotic dancer and that she was once arrested for prostitution. Petitioner and Respondent both testified that she would leave KH with other adults, including Respondent, for extended periods of time in order to work as a dancer; however, the suitability of those individuals (other than Respondent) as caretakers was highly disputed and Respondent could not identify any of the "dangerous people" he believed KH was left with. There were also allegations that Petitioner's former boyfriend abused her, and that members of her biological family are "not good people." None of the allegations made rose to the level of what has been deemed to constitute grave risk under the Hague Convention.

The Court-appointed ad litem testified that, after interviewing KH, Petitioner, Respondent, and several family members, she could identify no factors or circumstances that would rise to the level of grave risk. Because of the assertion of the grave risk exception (an exception which Respondent was not able to substantiate at all during the hearing before the Court) and the age of the child the Court stated that it appointed aguardian ad litem in this matter. The Court previously ordered that the fees of the ad litem would be taxed as costs. At the hearing held on November 29, 2012, the parties stipulated that the fees of the ad litem were reasonable and necessary. Therefore, those fees were to be taxed as costs and be payable directly to the guardian ad litem within 30 days of the entry of final judgment.

Carranco v Munoz, 2013 WL 150760 (D.N.J.) [Mexico] [Habitual Residence] [Petition Granted]

In Carranco v Munoz, 2013 WL 150760 (D.N.J.) Petitioner Andres Augusto Castenada Carranco was a Mexican citizen currently living in Chiapas, Mexico. Respondent Arianna Munoz Cabrera was a Cuban citizen and a U.S. legal permanent resident living in Newark, New Jersey. Petitioner and Respondent were married in Cuba in or about October 2006. Following their marriage, the parties lived in Chiapas, Mexico as a couple. There, they had a child-Ana Daylen Munoz Carranco ("Ana")-who was born on April 9, 2008. Respondent was Ana's primary caretaker, as she did not work outside the home in Mexico. In November 2009, Petitioner traveled to the United States with Respondent and Ana on tourist visas to visit Respondent's father and stepmother in Newark, New Jersey. Petitioner returned to Mexico after approximately two weeks, while Respondent and Ana remained in New Jersey for approximately a month and a half. Upon Respondent and Ana's return to Mexico in December 2009, the parties experienced marital discord. Consequently, Respondent told Petitioner that she wanted to live with her parents in New Jersey. Petitioner then told Respondent that "she could leave alone, but that the child wasn't leaving." On July 9, 2010, the parties entered into a consent agreement that, in relevant part, required (1) Petitioner to take Ana to Houston, Texas for purposes of remaining in the United States as a tourist until December 15, 2010; and (2) Respondent to return Ana to Petitioner on December 15, 2010.

    On or about July 22, 2010, the parties entered the United States via Mexico's border with Texas. Petitioner and Ana entered with tourist visas, and Respondent was paroled pursuant to the Cuban Adjustment Act. Approximately one day later, Respondent and Ana traveled to New Jersey where they stayed with Respondent's family, and Petitioner returned to Mexico. At some point between September and October 2010, Respondent asked Petitioner whether she could return Ana to Mexico before December of that year. Respondent wanted to return Ana prior to the date agreed upon in the consent agreement because she wanted time to adapt to living in New Jersey. Petitioner agreed to accept Ana's early return in or about September/October 2010, and Respondent sent Ana to Mexico shortly thereafter. In February 2012 Petitioner agreed to allow Ana to visit Respondent from May to August of that year. Respondent acknowledged that she and Petitioner orally agreed that Ana
would visit only for the summer, and would return in time to start the 2012-2013 school year in Mexico. On or about May 6, 2012, Petitioner and Ana traveled to Houston, Texas where they met Respondent. Respondent subsequently traveled to New Jersey with Ana, and Petitioner returned to Mexico. In June 2012, Respondent informed Petitioner that she wanted Ana to remain in New Jersey permanently, and would not return Ana to Mexico in August 2012.

On November 27, 2012, Petitioner filed his Petition. He personally served Respondent with copies of the Petition and his application with the Mexican Foreign Ministry on or about December 5, 2012. From early May 2012 until the present, Ana resided with Respondent in New Jersey, and has grown attached to Respondent's father, stepmother, and two brothers. Throughout this time, Petitioner has regularly communicated with Ana by telephone.

The court held that it had subject matter jurisdiction of this matter premised on 42 U.S.C. ¶11603(a), which provides that "[t]he courts of the States and the United States district courts shall have concurrent jurisdiction of actions arising under the Convention." Mexico and the United States are contracting states under the Convention.

Petitioner argued that the date of wrongful retention was August 2012 since that is the date the parties agreed Ana would return to Mexico. Respondent argued that the "measuring date for wrongful retention is December 5, 2012," as that is the date that "[P]etitioner filed a petition for the return of the child," and "personally served [R]espondent at her parent's home." The Third Circuit has endorsed the proposition that the retention date is thedate that a parent unequivocally communicates his or her desire to regain custody. However, when parents mutually agree to allow their child to travel outside the country of habitual residence for a specifically defined period of time, the retention date is measured as of the date on which the parent outside the country of habitual residence fails to return the child as agreed. See Karkkainen, 45 F.3d at 290. Petitioner and Respondent agreed in February 2012 that Ana would visit New Jersey until August 2012, and then return to Mexico. Respondent failed to return Ana to Mexico as agreed. Accordingly, the measuring date for wrongful retention was August 2012.

The Court found that as of the date of her May 2012 trip, Ana was a habitual resident of Chiapas, Mexico. That is where Ana was born and resided with the parties until Respondent immigrated to the United States in July 2010. Chiapas, Mexico is also where Ana has lived for all but approximately eight of the approximately 56 months she has been alive. Respondent acknowledged that the parties orally agreed that Ana's visit to New Jersey in the summer of 2012 would be temporary. Under the terms of the parties' oral agreement, Respondent was to ensure that Ana return to Mexico at some point in August 2012. Respondent failed to do this, and decided unilaterally that Ana would permanently remain in New Jersey. Respondent's changed intentions cannot result in an alteration in Ana's habitual residence. See Mozes, 239 F.3d at 1067. Thus, the Court concluded that Ana's habitual residence in August 2012 was Chiapas, Mexico.

The Court found that Respondents unlawful retention of Ana was in breach of his custody rights under the Civil Code for the State of Chiapas, Mexico (the "Civil Code"), which provides that "both parents have custody of their minor children." The Civil Code enshrines the concept of patria potestas is understood to mean the relationship of rights and obligations that are held reciprocally, on the one hand, by the father and mother or in some cases the grandparents and, on the other hand, the minor children who are not emancipated." Thus, under the Civil Code, etitioner had the right to exercise parental authority (i.e., patria potestas ) over Ana at the time of retention. Respondent's retention of Ana in New Jersey against Petitioner's will violates Petitioner's right to exercise parental authority over Ana in accordance with the Civil Code. Petitioner was exercising his custody rights at the time of retention.

　

Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) [Germany] [ Attorney's Fees and Costs]

In Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) after the Court granted the Verified Petition, and ordered respondent to surrender custody of the minor child to petitioner's father for return to Germany, Respondent filed a Notice of Appeal and sought a stay pending appeal in conjunction with her Notice of Appeal. The Court granted a temporary stay to allow respondent to seek a stay from the Eleventh Circuit Court of Appeals. On June 19, 2012, the Eleventh Circuit Court of Appeals dismissed the appeal based on petitioner's unopposed motion to dismiss the appeal as moot.

Petitioner now sought recovery of attorney fees and costs from respondent pursuant to the ICARA. Petitioner sought attorney's fees of $497,612.50, taxable costs of $23,950.96, and non-taxable expenses in the amount of $55,450.46, under Title 42, United States Code, Section 11607(b) (3), The district court observed that under this section, the Court has "broad discretion" in determining the fees, expenses, and costs, unless respondent satisfies the burden to establish that an award would be "clearly inappropriate." A reasonable attorney fee is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and a "reasonable hourly rate" is "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation," Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). The party seeking an award of fees should submit adequate documentation of hours and rates in support, or the award may be reduced. Hensley, 461 U.S. at 433. The burden is on the fee applicant "to produce satisfactory evidence" that the rate is in line with those prevailing in the community. Blum v. Stenson, 465 U.S.886, 896 n. 11 (1984).

Petitioner sought $590. 00 an hour for Mark S. Scott, $505.00 an hour for Jeffrey D. Pollack, $450.00 an hour for both Michelle M. Gervais and Warren D. Zaffuto, and $255.00 an hour for the paralegal. Counsel argued that "[g]iven the specialized and complex nature of Hague Convention cases", the hourly rates are reasonable in light of the range of fees previously found to be reasonable in the Middle District of Florida. The applicable prevailing market in this case was the Fort Myers area. Counsel did not provide an affidavit by an attorney in the Fort Myers area regarding the general reasonableness of the fee request, or an affidavit as to the proposed hourly rates."If a fee applicant desires to recover the non-local rates of an attorney who is not from the place in which the case was filed, he must show a lack of attorneys practicing in that place who are willing and able to handle his claims." ACLU v. Barnes, 168 F.3d 423, 437 (11th Cir.1999). The Court found that petitioner had not met the burden of demonstrating that the proposed hourly rates were reasonable, or that the Miami rate should be applied, or that no local counsel were available to handle the case. Therefore, the Court determined the appropriate hourly rate. It found no inherent reason to penalize petitioner for utilizing more than one attorney, much as respondent elected to do in this case. See Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11^th Cir.1983) ("An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation."). The Court found that Mr. Scott's language skills warranted the slightly higher than normal rate, however, the Court found that Mr. Pollack's rate should be considerably lower as he was an associate who was not admitted to practice in Florida and had less relevant experience than lead trial counsel, who is a partner. Upon review of counsel's respective experience and with due consideration to local prevailing rates, the Court fixed the reduced hourly rates at $400.00, $250.00 $300.00 $225.00 and $125.00 for the paralegal.

In determining the reasonable amount of hours, the Court held that it may conduct an hour-by-hour analysis or it may reduce the requested hours across the board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.2008), and the Court must eliminate excessive, unnecessary, and redundant hours, Norman, 836 F.2d at 1301-02. When multiple attorneys are involved, the Court must consider whether they are being compensated for their distinct contributions or whether there is duplication. Johnson v. University College of Univ. of Ala., 706 F.2d at 1208. In this case, counsel did not sufficiently demonstrate that they used "billing judgment", and therefore the Court was unable to determine whether the hours were reasonable. See ACLU v. Barnes, 168 F.3d at 428. The Court was inclined to deny the motion in its entirety for the lack of billing judgment exercised and the flood of unsupported documentation, but considered the billing records attached as Exhibit B and filed in three parts to reduce the request.

Some of the entries were superfluously redacted and were denied for the reason that their reasonableness or relation to the Hague petition proceedings could not be determined. The Court did not apply Miami counsel's hourly rate for travel to Fort Myers from Miami without any affidavit attesting that no Fort Myers local counsel was available or capable of representing petitioner in this matter. The Court did not include the hours for travel overseas without argument or an affidavit that the travel time was spent working on the Hague petition proceedings. The Court eliminated travel time to Fort Myers and "daily rates" for simply being present in Fort Myers awaiting a decision by the Court. The Court did not permit hours for the attendance of the paralegal at trial when co-counsel was present to assist lead counsel for a two day hearing that did not take place two days in a row and also billed for that time. The hours also included the paralegal's travel time, coordinating exhibits with the courtroom deputy, and a great deal of secretarial tasks including the compilation of exhibits and folders for counsel. After all reductions, the Court awarded petitioner a total of $184,047.00 in attorneys' fees at the District Court level.

The court held that Petitioner sought an excessive $55,450.46 in non-taxable expenses for travel expenses, legal research, postage and overnight mail, messenger services, and translation services. Although the expenses were incurred "on behalf of the petitioner", they were not all necessary, and counsel's travel expenses had no relationship to the "transportation costs related to the return of the child" by either party. 42 U.S.C. § 11607(b) (3). The expenses of counsel was denied in their entirety as clearly inappropriate.

Petitioner sought $23,950.96 for taxable costs and filed a separate proposed Bill of Costs in support. Under Fed.R.Civ.P. 54(d)(1), costs "should be allowed to the prevailing party" unless the court provides otherwise. Deposition costs "merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only," are not recoverable. EEOC v. W & O, Inc., 213 F.3d 600, 620 (11th Cir.2000). Likewise, costs for charts and exhibits are not taxable, and copying costs are otherwise evaluated based on their necessity, including for discovery. "Compensation of interpreters" under Section 1920(6) is limited to the cost of oral translation and does not include document translation. Kouichi Taniguchi v. Kan Pac. Saipan, Ltd., 132 S.Ct. 1997 (2012). The Court taxed costs against respondent for the $350.00 filing fees of the Clerk; $746.00 for summonses and subpoenas; $13,282. for transcripts; and $4,672.41 for printing without any specific objection to their necessary use in this case. The $988.03 for demonstrative aids was not permitted as unsupported and unnecessary for use in this case. The $2,385.50 for interpreter services was reduced to reflect only the oral interpretation costs for English to German in the amount of $1,592.75 in light of the recent Supreme Court case. Therefore, the Court taxed costs in the amount of $20,643.26.

The Petitioner sought $63,073.50 in appellate attorneys' fees for 132.3 hours, and an additional $2,690.72 in costs . The Court denied appellate fees in their entirety. The Court was frustrated by the failure of counsel to properly divide and supplement the first request for fees with separate billing statements that are limited to the appeal. Instead, counsel have re-submitted the same billing records previously submitted with no indication of how they reached a total of $63,073.50. The Court permitted attorneys' fees at the trial level with some trepidation and after expending an excessive amount of time deciphering the billing records. The Court would not hazard to estimate the appellate fees based on the submissions. The motion for appellate fees was denied.

Petitioner sought $2,690.72 for printing, copying, legal research, overnight mail, and messenger services, under both 28 U.S.C. § 1920 as taxable costs and under ICARA as necessary costs associated with the return of the minor child. Petitioner sought $398.55 for printing and duplication, which is a taxable cost. The other amounts were not taxable costs recoverable under Section 1920. Computerized research costs are not taxable costs. Respondent did not argue that the cost was not necessary for use in the case or that this amount was specifically excessive. Therefore, this amount was permitted.

Petitioner sought $35.90 for messenger expenses to deliver documents to the Eleventh Circuit Court of Appeals. The Court permitted this expense as a necessary expense related to the return of the child. The Court did not permit the $267.14 for overnight deliveries to the Ritz-Carlton in California where apparently counsel was located while the appeal was ongoing, or to other counsel and law firms without any indication from counsel how the expenses were necessary to the return of the child. The $1,989.13 for legal research was denied as clearly inappropriate and unrelated to the actual return of the child.

Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) [Canada] [Habitual Residence] [Petition Granted]

In Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) On January 2, 2013, Petitioner Jonathan William Bedder filed a petition for the return of his daughter, "R," to Canada. Petitioner alleged that his daughter was wrongfully abducted to the United States by his estranged wife, Respondent Sarah Rebecca Bedder.


Sarah and Jonathon met as undergraduate students in New York. Petitioner was a Canadian citizen, while Respondent and R were United States citizens. The couple married in June of 2008, beginning married life in Jonathon's apartment in upper Manhattan. Their daughter was born on October 5, 2009 during their sojourn in New York. In or about late 2010 or early 2011, the couple decided to move to Seattle, Washington, where Petitioner hoped to find more sustainable employment. After they were evicted from their apartment in Seattle, Petitioner flew home to Canada in late June, and Respondent's and R's travel was booked to fly to Canada on July 30, 2012. At the time they were evicted, both hoped to eventually return to Seattle and find a new apartment. The couple eventually canceled Respondent and R's return tickets to Seattle, notified R's Seattle preschool that she would not be returning, and canceled their U.S. health insurance. They engaged in extensive activities to complete their family's relocation to Canada. They went shopping and purchased clothing and additional toys, since they had originally planned to stay for only a month. Respondent requested that a few small items be sent to their new home in Winnipeg, and the remaining items originally placed in storage in Seattle were eventually sold or donated to charity. With his parents' financial support and encouragement, Petitioner enrolled in additional computer certification courses. The couple obtained a Canadian health insurance card for R, and almost immediately enrolled her in a local religious preschool three mornings per week. Respondent wrote several blogs, and her contemporaneous blog entries were telling. In August she wrote "I'm so grateful that there was nothing really tying us to Seattle so we had the option to just stay here instead of returning to Seattle." In September, she wrote about R's enrollment in her new Canadian preschool. "I'm so grateful that there's a religious preschool here that's comparable to MMSC in Seattle. By early September, 2012, the couple had met with an immigration lawyer, who explained the requirements for Sarah to obtain permanent legal residency in Canada. Despite their serious marital problems, the couple still hoped to work out their differences. Initially, Jonathon expressed a willingness to legally sponsor Sarah-a Canadian legal commitment to be financially responsible for her for a period of three
years. However, during a family counseling session on or about September 20, 2012, Petitioner conveyed to Respondent that he did not think their marriage would survive.

On that day or shortly thereafter, he advised Respondent that he would not sponsor her. Respondent reacted with anger, but expressed no intention to leave Canada prior to December 2012. She continued to live-with the consent of all involved- in her basement quarters, and R continued to sleep in her second-floor bedroom. The couple considered themselves separated as of September, when Jonathon moved to the main floor of his parents' home and began sleeping on the couch. Sarah testified that she continued to pursue her options for remaining in Canada by consulting with another immigration lawyer. Respondent looked into obtaining a work permit, another sponsor, or extending her visitor's visa, which was valid on its face until January 30, 2013 and could be extended for up to 2 years. Although Respondent testified that she believed that it would be "difficult" to extend her visa without showing that she had some money in a bank account, Respondent repeatedly testified that she made a "good faith effort" to remain in Canada and that she intended to remain in Canada if she could. She testified that she pursued employment opportunities in part through the local Jewish community, and through that community she was able to obtain one job interview in November. As a result of that interview, she was initially offered training to become a kosher inspector at a bakery, but that position fell through in early December. When that occurred, the Jewish community offered to help her find a different position.

In mid-November, Respondent and Petitioner had an argument about the impending break-up of their marriage, during which Respondent told Petitioner that if he would not sponsor her and she was forced to leave Canada, she would take R. Petitioner advised Respondent she would not be permitted to do that, and that his parents had placed R's passport in a safe deposit box to prevent her from such action. Respondent suggested, and equivocally testified, that Petitioner knew or should have known from the start that Respondent's move to Canada was conditioned on the success of her marriage and corresponding ability to remain legally in Canada with her daughter. However, Respondent frequently contradicted herself regarding these intentions, and the Court foundds credible Petitioner's testimony that Respondent never expressed (or held) any intention to leave Canada with R until, at the earliest, the November argument. When asked where she believed R's habitual residence might be, if not Winnipeg, Respondent was unable to answer other than "the United States." She testified that she never made any effort to return to Seattle after arriving in Canada, but also disavowed Cincinnati as R's "habitual residence." On Thursday, December 13, 2012, Petitioner enlisted the help of a friend in her tight-knit religious community to hide R's original birth certificate, in furtherance of a plan to leave and take R to the U.S. The next day, deliberately concealing her plans from her husband and R's grandparents, Respondent picked R up from preschool and took R to her Rabbi's house, where Petitioner and his mother eventually discovered them. On Sunday evening, December 16, they drove Respondent and R across the U.S. border to North Dakota, where she was met by her parents. Her parents drove her and R to Cincinnati, where they arrived on December 18, 2012.

Respondent made two arguments against the Court's finding that R's habitual residence was Canada: (1) that she and R were not "settled" in Canada because they had resided there for fewer than 6 months when she departed; and (2) that her initial agreement for R to live in Canada was contingent upon Respondent's own circumstances, which changed over time due to the impending breakup of her
marriage and additional barriers she faced in order to obtain permanent residency in Canada. The Court held that neither argument had legal merit Respondent's first argument was rejected because the issue presented was wholly separate from the issue of domicile, or the determination of which "home State" a child may be living in under the Parental Kidnapping Prevention Act or Uniform Child Custody Jurisdiction and Enforcement Act. Under ICARA, habitual residence may, at least theoretically, be established in a single day. Respondent's second argument was equally irrelevant to the Court's inquiry. The Sixth Circuit has instructed courts to look backward to determine the facts and circumstances, without considering the subjective future intentions of her parents . See Robert, 507 F.3d 981, 989-993;Friedrich v. Friedrich ("Friedrich I"), 983 F.2d 1396, 1401 (6th Cir.1993). The critical issue was whether R's living arrangements in Canada evinced a "degree of settled purpose from the child's perspective," and whether the circumstances were "sufficient for acclimatization." Robert, 507 F.3d at 989. Where, as in this case, the child is able to develop "a certain routine" and acquire "a sense of environmental normalcy," and is able "to form meaningful connections with the people and places [she] encounters each day," then the court must focus on the child's degree of acclimatization. Karkkainen v. Kovalchuk, 445 F.3d 280, 292). When R moved to Canada she was very young, a few months shy of her third birthday. She lived there in the same household with both parents and her paternal grandparents for four and a half months, a period of time that was appreciably long in a toddler's life. She was given no indication by either parent that her stay in Canada was for just days or weeks as if on a holiday. In fact, both parents unequivocally expressed a joint intention, not later than early August 2012, to remain in Canada indefinitely with her while they made attempts at a fresh start in their personal, financial, and professional lives. The fact that some of those attempts ultimately failed was of no consequence to the analysis. The court found that Canada had become R's habitual residence within a week of her arrival, not later than August, 2012. Unlike a newborn who may be less cognizant of her environment, R was able to form many attachments to people and places, and was actively encouraged by her parents to do so.

The petition was granted, with Petitioner to assume temporary care, custody and control of R and to accompany her on her return to Canada.

Yaman v. Yaman, 2013 WL 322204 (D.N.H.) [Turkey] [Well-Settled] [Equitable Tolling]

 In Yaman v. Yaman, 2013 WL 322204 (D.N.H.) Ismail Ozgur Yaman, the children's father, was granted custody of both children by a Turkish court. He filed a petition seeking an order requiring that the children be returned to Turkey pursuant to the Hague Conventio. Linda Margherita Yaman, the children's mother, responded by arguing, that the children should not be returned to Turkey because they were "now settled" in New Hampshire. Dr. Yaman conceded that he did not file his petition within the one-year filing period, but he argued that the filing period should be equitably tolled because Ms. Yaman made it impossible for him to file his petition earlier by concealing the children's whereabouts. The Court denied his motion to preclude the Respondent from raising the "well-settled" defense and held that concealment does not equitably toll the Hague Convention's one-year filing period.

Dr. and Ms. Yaman met in 1997 in Detroit, Michigan where he was enrolled in post-graduate studies at Wayne State University. The couple married in August 2000 in Turkey, and then returned to the United States. Ms. Yaman became a Turkish citizen on October 3, 2000. The couple's older daughter, K.Y., was born on March 5, 2002, in the United States and later became a Turkish citizen. In January 2003, the family moved to Turkey, where Dr. Yaman's parents lived, and where Dr. Yaman had been hired as a professor in the Civil Engineering Department at the Middle East Technical University. The Yamans' younger daughter, E.Y., was born in Turkey on August 11, 2003. Both children were dual citizens of Turkey and the United States. In May 2004, Ms. Yaman accused her husband of sexually abusing their daughters. Dr. Yaman denied the allegations. The parties separated in late December 2004. In February 2005, Dr. Yaman filed for divorce, citing the "irretrievable breakdown of the marriage." Ms. Yaman filed a counter suit in March 2005. Following divorce and custody proceedings, on March 13, 2006, a Turkish family court rejected the abuse allegations, concluding after a thorough investigation that they were false. The court granted Dr. Yaman sole custody of the children. In August 2007, Ms. Yaman fled Turkey in a boat bound for Greece with the children and without informing Dr. Yaman of her intentions to leave or where she was going. From Greece, Ms. Yaman traveled with the children to Andorra, where they lived for about two and a half years. She then moved with them to the United States in 2010, where they have remained to date. Dr. Yaman filed a Hague Convention petition in this court in June 2012. He contended that Ms. Yaman sought to conceal the children's whereabouts from him after taking them from Turkey. For purposes of the motion, the Court assumed that his allegations of concealment were true.



The Court observed that Article 12 establishes rules for when a tribunal must issue a return order that differ depending upon the amount of time that elapses between the date of abduction and the date the return petition is filed. If "a period of less than one year has elapsed from the date of wrongful removal or retention," Article 12 states that "the authority concerned shall order the return of the child forthwith." Hague Convention, art. 12. In contrast, if the judicial or administrative proceeding is commenced more than one year following abduction, a return order must issue "unless it is demonstrated that the child is now settled in its environment.

The district Court rejected Dr. Yaman argument that the one-year filing period set forth in Article 12 must be equitably tolled while an abducting parent is concealing the location of a wrongfully removed child. Ms. Yaman. It found that the treaty did not authorize a court to equitably toll the one-year filing period. Neither the Hague Convention nor ICARA explicitly authorizes a court to equitably toll the one-year period set out in Article 12.

 

Vujicevic v. Vujicevic, 2013 WL 2627132 (W.D.Wash.) [Croatia] [Age & Maturity] [Petition Denied]

In Vujicevic v. Vujicevic, 2013 WL 2627132 (W.D.Wash.) on May 30, 2013. Ivan Vujicevic filed a petition seeking the return of his child, E.V., to Croatia pursuant to the Hague Convention. The parties stipulated to facts establishing a prima facie case of child abduction under the Convention. The Court therefore found that petitioner Adriana Vargas Vujicevic wrongfully removed E.V. to the United States in February 2012 in violation of Mr. Vujicevic's custody rights under the laws of Croatia. Miro Vujicevic, E.V.'s older brother, also accompanied his mother to the United States. Miro was over the age of sixteen in February 2012, and was not therefore subject to return under the Convention.

Mr. Vujicevic and Ms. Vargas had a relationship marked with acts of physical violence and verbal abuse. Disagreements regarding mundane matters would, with depressing frequency, give rise to shouting matches and occasionally flare into physical violence. Their children, Miro and E.V., grew to hate the fights and realized that their mother always lost, regardless of the reasonableness of her inquiry or argument. Ms. Vargas, Miro, and E.V. came to feel that their role in the household was to serve Mr. Vujicevic and that the failure to stop whatever they were doing and immediately comply with his requests, no matter how small or seemingly inconsequential, could spark a violent confrontation. This general situation continued unabated and essentially unchanged from the mid-1990's to June 2011 when Ms. Vargas requested a divorce and began investigating her options for separating from Mr. Vujicevic. She contacted a domestic violence hotline and the domestic violence advisors recommended that Ms. Vargas file a police report regarding a June 2011 incident, which she did on July 15,

2011. In the process, Ms. Vargas also revealed that Mr. Vujicevic had weapons in the  house, mementoes of his days of fighting against Marshal Tito and Slobodan Milosevic on behalf of Croatia. Possession of these weapons apparently ran afoul of Croation law. Mr. Vujicevic ultimately pled guilty to domestic violence and was later convicted on illegal weapons charges. Both convictions resulted in suspended sentences, and, to Ms. Vargas' and Miro's surprise, Mr. Vujicevic returned to the house immediately thereafter. On February 7, 2012, Ms. Vargas submitted a "Statement of Special Circumstances" recounting twenty years of abuse at the hands of Mr. Vujicevic, recent events involving the children, and obtained a passport for EV from the United States Embassy and, in February 2012, Ms. Vargas and her sons secretly left Croatia for the United States.

Petitioner did not dispute that the events recounted by Ms. Vargas occurred, however. Rather, he relied primarily on the fact that Ms. Vargas did not label her home situation as one involving domestic violence until after she contacted the United States Embassy. There was no indication that any of the episodes reported by Ms. Vargas were falsified or exaggerated. The change, if any occurred, appears to be one of perspective.

Based on the foregoing facts, the Court found that Ms. Vargas failed to show by clear and convincing evidence that returning E.V. to Croatia would expose him to a grave risk of physical or psychological harm. E.V. had an overall positive impression of Croatia, and there are things about that country which he misses. Mr. Vujicevic stated that he was willing and able to provide a separate residence for E.V. and Ms. Vargas if  they returned to Croatia so that the courts of that country would have an opportunity to make the custody determination. Ms. Vargas herself indicated through both her words and actions that Mr. Vujicevic did not pose a grave threat to her children. Because the mere possibility of harm does not establish an Article 13(b) defense to an action for the return of a child, the Court found that the grave risk exception did not apply.

The Court found that E.V., at fourteen, had attained an age at which courts often take into consideration the child's wishes. In addition, he was mature beyond his fourteen years based on both the manner in which he conductd himself and the substance of his statements. During the proceedings in this matter, the Court conducted an in camera interview of E.V. and allowed counsel an opportunity to follow up with additional questions. The Court also heard testimony from a clinical psychologist, who evaluated E.V. and a math teacher, who had taught E.V. for over a year. Even petitioner's expert, who did not speak to any member of the family, said that E.V. sounds like a "resilient, balanced, and focused" child in all areas except with regards to his desire to not have a relationship with his father. Petitioner argued that E.V.'s unwillingness to reinitiate contact with his father is a sign of immaturity. While it is true that E.V. may not fully grasp the repercussions of completely cutting his father out of his life at this point in time, prescience is not required in order to be considered mature. The extent and focus of E.V.'s anger was rational, and the means by which he hoped to avoid the conflicts that he found so troubling, namely by staying away from his father, was logical even if there may be unintended consequences in the future.

Relying on the bare circumstances of this case, petitioner argued that E.V.'s mother and brother had unduly influenced his views. There was no doubt that E.V. had internalized the conflicts of his childhood and that he was aware of his mother's and brother's opinions in this matter. While the circumstances of his life obviously influenced the way he viewed the world, such influence was not undue or otherwise suspect. E.V. was fourteen years old, and clearly capable of distinguishing between his own interests and desires and those of his mother and brother, and had firm and full memories of his father and Croatia that he could compare with his current situation. In addition, all of E.V.'s answers rang true during the in camera interview. There was no evidence of improper coaching or any indication that E.V. did not firmly believe the views he espoused during the interview.

The Petition was denied.

Romero-Mejia v. Ivers, 2013 WL 1412237 (E.D.Wash.) [Mexico] [Federal & State Judicial Remedies ][Temporary Restraining Order]

In Romero-Mejia v. Ivers, 2013 WL 1412237 (E.D.Wash.) Petitioner Martha Ivers Romero-Mejia ("Ms.Romero-Mejia") sought the return of her two minor children, CTIR and DSIR, to their home country of Mexico under the Convention.. Ms. Mejia-Romero made an ex parte motion requesting an order temporarily restraining Mr. Ivers from removing the children from this Court's jurisdiction pending a full hearing on the merits of the Petition Fearing that Mr. Ivers may abscond with the children to Canada if given advance notice of the proceedings, Ms. Romero-Mejia requested that the restraining order be issued ex parte under Federal Rule of Civil Procedure 65(b).

The court drew its facts from the Petition filed on April 3, 2013 which were accepted as true for purposes of this motion. Ms. Romero-Mejia was a citizen of  Mexico. Her husband, Mr. Ivers, was a citizen of the United States. Mr. Ivers and Ms. Romero-Mejia were married on December 31, 2003 in Tijuana, Baja California, Mexico. The couple had two children, CTIR and DSIR, who were born in 2006 and 2008, respectively. CTIR and DSIR resided with their parents in Mexico until the events at issue. On September 14, 2012, Mr. Ivers told Ms. Romero-Mejia that he planned to take CTIR and DSIR on a day trip across the border to the San Diego Zoo. Ms. Romero-Mejia went to work for the day with the understanding that Mr. Ivers and the children would return home around 10:00 p.m. Upon returning from work, Ms. Romero-Mejia discovered that the children's clothing and several other household items were missing. Concerned that their house had been robbed, Ms. Romero Mejia immediately called her husband on his cellular phone. During this conversation, Mr. Ivers informed Ms. Romero-Mejia that their marriage was beyond repair and that he was taking CTIR and DSIR to live permanently with him in Spokane, Washington. Ms. Romero-Mejia begged her husband to return with the children to Mexico, but to no avail.

The Court observed that the issuance of an ex parte temporary restraining order ("TRO") is governed by Federal Rule of Civil Procedure 65(b). Under Rule 65(b), a party seeking a TRO must establish the following: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if injunctive relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) an advancement of the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should continue in the form of a preliminary injunction. The Court found that the the issuance of a TRO was appropriate. Ms. Romero-Mejia has established a sufficiently high likelihood of success on the merits by alleging that her two children, over whom she has "rights of custody" under the laws of Mexico, were removed to the United States without her permission. Ms. Romero-Mejia further established that her children (1) were less than sixteen years old; (2) were residing with her in Mexico immediatelyprior to their removal; and (3) were currently residing with Mr. Ivers in Spokane.

Accordingly, Ms. Romero-Mejia appeared to be entitled to the requested relief under the Convention. There was also a sufficient likelihood of irreparable injury if the requested relief is not granted. According to the Petition, Mr. Ivers had family in Canada and may take the children there if not enjoined from doing so. Given that Mr. Ivers had already absconded with the children on one occasion, there wasreason to believe that he may do so again upon learning of Ms. Romero-Mejia's efforts to secure their return to Mexico. If this occurs, Ms. Romero-Mejia would be forced to restart the removal application process anew, thereby jeopardizing her ability to obtain timely relief under the Convention. See Convention, Art. 12 (imposing a one-year statute of limitations from the date of wrongful removal or retention). The Court found that injunctive relief is necessary to prevent this potential injury from occurring. For the same reasons, the Court found that issuance of this Order without notice to Mr. Ivers was appropriate. Fed.R.Civ.P. 65(b)(2). A balancing of the hardships also weighed in Ms. Romero-Mejia's favor. Prohibiting Mr. Ivers from removing CTIR and DSIR from the Eastern District of Washington without the Court's approval-at least until he could be heard on the matter-was not a burdensome condition. Conversely, the hardship that Ms. Romero-Mejia would face if the requested relief were not granted was substantial. Finally, the Court found that an order barring Mr. Ivers from removing the children from this jurisdiction would advance the public interest. In implementing the Convention, the United States Congress found, inter alia, that "the international abduction... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." The Court concluded that Ms. Romero-Mejia was entitled to an order temporarily restraining Mr. Ivers from removing CTIR and DSIR from the Court’s jurisdiction. Respondent was further ordered to show cause why the relief requested in the Verified Petition for Return of Children should not be granted, and the courter directed that a copy of the order, along with a copy of the Verified Petition for Return of Children, shall be promptly served upon Respondent.

n re D.T.J., 2013 WL 3866636 (S.D.N.Y.)[Hungary] [Federal & State Judicial Remedies ] [Passport] [Counsel for Child] [Intervention] [Well Settled] [Age & Maturity] [Grave Risk of Harm] [Petition Denied]

In re D.T.J., 2013 WL 3866636 (S.D.N.Y.) Petitioner Gyula Janos Jakubik petitioned the Court for the return of his daughter, D.T.J., to Hungary, pursuant to the Hague Convention. She was brought to the United States by her mother, Respondent Eva Schmirer, on September 6, 2011. On June 14, 2013, Jakubik filed the petition, along with an application for emergency relief in the form of an Order to Show Cause. That Order, which the Court issued that day, directed the United States Marshals Service to take D.T.J.'s and Schmirer's passposts into custody for safekeeping by the Court. The Court appointed counsel for D.T.J. and granted, over Petitioner's objection, D.T.J.'s motion to intervene as a party to the case. (2013 WL 3465857 (S.D.N.Y. July 9, 2013)). At that trial, the Court heard testimony from D.T.J., whom the Court interviewed at length, with D.T.J. under oath, in the Court's robing room, having been provided with proposed questions from the parties, ex parte, in advance. The Court's interview with D.T.J. was conducted in the presence of counsel; and counsel were given the opportunity before the interview ended to propose supplemental questions to the Court.

The Court found that Jakubik and Schmirer met in 1996, at the ages of 20 and 19, respectively; they became cohabitants and life partners. On August 11, 1998, D.T.J. was born to them in Kistarcsa, Hungary. For the next six years, D.T.J. and her parents lived together in Valko, Hungary. During the time the couple was living together, Jakubik was physically and verbally abusive to Schmirer, both in and out of the presence of D.T.J. The evidence established that Jakubik engaged in a pattern of serious physical and verbal abuse of Schmirer during the time they were a couple, including hitting and punching her, as well as threatening to kill her on repeated occasions. The Court found Schmirer's testimony credible and compelling on this point. The couple separated in 2004. On August 11, 2005, D.T.J.'s D.T.J. was living with Schmirer. Laszlo Paolo-Jakubik came to take D.T.J. to celebrate her birthday and refused to allow D.T.J. to exit the car, grabbing her by the arm and hand and drove off. Schmirer brought a proceeding in Hungarian court to have D.T.J. returned to her custody. On June 22, 2006, the Municipal Court of Salgotarjan, Hungary granted custody to Schmirer. Jakubik was given visitation rights For the next five years, D.T.J. lived with Schmirer in Karancsaija. Schmirer. In 2007, Jakubik married Adrienn Viczian, and in 2008, the two gave birth to another daughter, Bogolarka. On September 6, 2011, Schmirer and D.T.J. left Hungary and traveled to the United States. Upon their arrival in New York, D.T.J. and Schmirer moved in with Katalin O'Toole in Haverstraw, New York, which is located in Rockland County.



The district court found that Petitioner made out a prima facie case by a preponderance of the evidence. DJT was born in Hungary and lived there until age 13, thus meeting the definition of a "habitual resident" of Hungary. Schmirer brought D.T.J. to the United States without the knowledge or consent of Jakubik, and that, according to the custody order of the Municipal Court of Salgotarjan, Jakubik was to have visitation rights every other week. D.T.J.'s abduction by Schmirer, therefore, was in violation of Jakubik's custody rights under the Convention.

Schmirer and D.T.J. both argued that D.T.J. was well-settled in her new environment, and that returning her to Hungary for custody proceedings would be harmful and disruptive. The Court observed that the petition was filed in the United States more than a year after D.T.J.'s wrongful removal and that the Article 12 "settled" defense was available. The "settled" defense allows courts to examine the child's present situation and circumstances if more than a year has passed since his or her removal. Article 12 does not define the term "settled." However, courts have interpreted it to ask whether "the child is in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." In Re Lozano, 806 F.Supp.2d 197, 230 (S.D.N.Y.2011). Although there is no exhaustive list of the factors that are to be considered in assessing the "settled" defense, they include: the age of the child; the stability of the child's residence in the new environment; whether the child attends school or day care consistently; whether the child attends a religious establishment] regularly; the stability of the respondent's employment; and whether the child has friends and relatives in the new area. In Re Koc, 181 F.Supp.2d at 152;accord Lozano, 697 F.3d at 57; Matovski, 2007 WL 2600862, at *13; Reyes Olguin v. Cruz Santana, No. 03 CV 6299(JG), 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005).

The court discussed each of the factors. Age - D.T.J. was just a few weeks shy of 15 years old. The Court found that this first factor, that of age, supported D.T .J.'s "settled" defense. Stability of Environment- By all accounts, D.T.J.'s environment in the United States was a stable and happy one. This finding went far in bolstering Respondent's and D.T.J.'s "settled" defense. School Attendance - D.T.J.'s testimony about school was overwhelmingly positive. This factor, too, strongly supported a finding that D.T.J. was "settled" here. Friends and Relatives - D.T.J. testified to being extremely close with her relatives in the United States. This factor, also strongly supported the "settled" defense. Respondent's Employment - Schmirer was not employed in the United States, nor was any member of the household in which D.T.J. lived. That fact, viewed in isolation, undercut D.T.J.'s and Schmirer's claim that D.T.J. was "settled." At the same time, there was evidence of continuing financial support for D.T.J. from means other than presently earned income. The evidence at trial established that Schmirer and D.T.J. were supported financially by John and Katalin O'Toole. Schmirer's lack of employment or income undercut the "settled" defense but was mitigated somewhat by the financial assistance provided to Schmirer and D.T.J. by the O'Tooles. This factor pointed in conflicting directions as to the "settled" defense.

Immigration status - Both Schmirer and D.T.J. were living as undocumented persons in the United States. The consequences of this status presented an obstacle to Schmirer and D.T.J.'s ability to demonstrate that D.T.J. was well-settled in the United States. The Court observed that the Second Circuit has squarely held that lack of legal immigration status does not preclude a court from finding that the "settled" defense has been established. See Lozano, 697 F.3d at 56 ("[I]mmigration status should only be one of many factors courts take into account when deciding if a child is settled within the meaning of Article 12.... [I]n any given case, the weight to be ascribed to a child's immigration status will necessarily vary."); see also Broca v. Giron, No. 13-1014-cv, 2013 WL 3745985, at *1 (2d Cir. July 18, 2013) ("The ['well-settled'] test is a 'fact-specific multi-factor' test, in which no factor, including immigration status, is dispositive."). The factors to be considered when assessing the relative weight that should be given to a child's immigration status include "the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits." Lozano, 697 F.3d at 57. On this subject, the Court had the benefit of hearing testimony from a professor of law at New York Law School specializing in immigration law. Her testimony confirmed that there were potential avenues by which D.T.J. could normalize her status. On balance, D.T.J.'s immigration status unavoidably pointed against a finding that she "settled." However, notwithstanding this factor, balancing all of the foregoing "settled" factors, the Court was persuaded-overwhelmingly-that D.T.J. had met this affirmative defense by a preponderance of the evidence. Applying the multi-factor test, even without lawful status she was "well-settled" in the United States. See Broca, 2013 WL 3745985, at *1; Lozano, 697 F.3d at 56; Demaj, 2012 WL 476168, at *4.

The Court also held that D.T.J. was of a sufficient age and maturity that the Court should take into account her "considered objection to returning." A court may refuse repatriation "solely on th[at] basis." see Broca, 2013 WL 867276, at *9-10; Matovski, 2007 WL 2600862, at *9; de Silva, 481 F.3d at 1286. The Court viewed D.T.J. as reasonably mature for an almost 15 year-old. The Court perceived noticeable areas of emotional immaturity. For example, D.T.J.'s answers in certain instances revealed a willingness to make sweeping, absolute statements, and a degree of dogged refusal to reexamine conclusions she had drawn or statements she had made. That said, the vast majority of the evidence revealed D.T.J. to be a mature, thoughtful child with age-appropriate analytic skills and assessments of reality. D.T.J.'s maturity was particularly evident with respect to two topics. First, D.T.J.'s articulation of her reasons for wanting to stay in the United States was rational and reasoned. Her comments demonstrated that a mature and considered line of thinking had led her to this conclusion, and reflected a practical, sober sensibility. D.T.J. explained that she preferred the United States because her emotional and tangible needs are being met here, whereas they were not being met in Hungary. Her reasons for not wanting to go back, she stated, were "[n]ot because of this case" but because "it's better here." She demonstrated that she feels safe and secure in the United States, and that she sees a brighter future here for herself. The second revealing example of her emotional maturity came during D.T.J.'s discussion of her immigration status. D.T.J. demonstrated quite bluntly that she was aware of the challenges presented by her immigration status should she remain in the United States. She was able to enumerate some of these challenges, and demonstrated a mature sequence of reactions. The Court found that D.T.J. had successfully made out an Article 13 affirmative defense. This defense independently justified denial of the Petition.

Schmrer and D.T.J. argued that, should D.T.J. return to Hungary, she would be at grave risk of harm, as defined by Article 13(b) of the Convention. They argued, D.T.J. would incur psychological damage, occasioned by her proximity to a violent and abusive father; and be at risk of sexual abuse at the hands of her father. The district court found that D.T.J. would suffer great psychological trauma should she be repatriated so as to be in proximity and contact with her father. The evidence at trial convincingly showed that Jakubik could be a brutal, violent, jealous and possessive man. It established that, while Schmirer resided in Hungary, Jakubik repeatedlyengaged in horrific acts of violence towards Schmirer. The Court described these acts in its opinion, which occurred in the presence of D.T.J. During all of these incidents, Schmirer testified, D.T.J. was present. D.T.J., who was very young, recalled only some of those incidents.

In considering whether Schmirer and D.T.J. had established this defense, the Court was mindful that the relevant issue was whether the evidence established a grave risk to D.T.J., who was never physically assaulted by Jakubik. It pointed out that the law is clear that "[e]vidence of ... incidents aimed at persons other than the child at issue, have not been found sufficient to support application of the 'grave risk' exception." Laguna, 2008 WL 1986253, at *8; accord Souratgar, 2013 WL 2631375, at *4 ("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 Court was also mindful that the incidents chronicled all occurred prior to the point in 2006 when the Hungarian Court in Salgotarjan made its custody determination. However, the evidence at trial revealed that Jakubik maintained a torrent of verbal abuse towards D.T.J. Since her arrival in the United States, Jakubik and D.T.J. had remained in contact via Facebook, and voluminous evidence of their Facebook communications since mid-2012 was admitted at trial. This evidence revealed a series of diatribes by Jakubik towards D.T.J., both in Facebook messages to her personally and in "wall postings" to which she and other users had access. On May 4, 2012, for example, Jakubik wrote to D.T.J.: It's your mother who doesn't care about you because taking you there was for her own good and not yours. But Interpol will be looking for you soon, because what your mother did was a crime, ...Once you are home, we will have a talk!.... [T]ell her to come back to her senses and put you on a plane because I will have her imprisoned if I have to. In an October 2, 2012 conversation, Jakubik taunted D.T.J., "I will put your dickhead mother where she belongs because I made a vow at my father's grave.:) ... So when your Mom comes home, the same thing will happen as I wrote before. (She will die like a bum under a gate and no one will give a crap about her)." As recently as a few weeks earlier, Jakubik told D.T.J. that "Your fucking mother wanted to raise you to be a whore." Jakubik's Facebook "wall postings" consisted of similarly profane invective. In one post, he stated: I am telling the entire lousy (Schmirer) family that you, rotten scums cannot hide; Uncle Gyula will find you and then you will get yours. You took my daughter away to suck [cocks] like a pig, I hope you know what sucking means(rotten scums). Jakubik's communications and postings also contained substantial anti-Semitic invective, notable given that D.T.J. was of partially Jewish ancestry on her mother's side. One such posting rails: I should fuck and impregnate all those dick-waving dogs, who sit in the Parliament pissing away assets belonging to me and to millions of other patriots. These Jewish henchmen don't balk at anything, when they rob our sweet homeland. They want secrecy? I would give it to them: about 2 meter deep in horizontal position; you cock-sucker Romanian-Gypsy Orban scum, why don't you ruin your fucking bitch mother and your lousy Jewish henchmen lackeys? You will be very much fucked because of this. D.T.J.'s testimony clearly revealed deep distress at Jakubik's abusive writings. She testified that returning to Hungary and to contact with her father would be traumatic for her. D.T.J. stated on more than one occasion during her testimony that she had very real fears about her father killing her mother. She voiced fear that "[m]aybe if we have to go back to Hungary, I think he will do it."D.T.J. remembered that Jakubik had said that "[h]e would put handcuffs on everybody in the family and he would shoot them in the head."D.T.J. also expressed distress at her father's anti-Semitic writings. It was clear to the Court that D.T.J. had been deeply wounded by her father's verbal assaults on her mother and her mother's family, with whom she identified. Dr. Rand, consistent with this, described D.T.J. as having recounted the incidents of her father's past violence "with a flat affect." This, he stated, was "suggestive of a dissociative process which serves as a psychological defense, a way of avoiding experiencing the full psychological impact of that which she fears-namely harm or death to her mother, proximity to her father if she were returned to Hungary, and the destruction of her happy and hopeful life in New York. Such dissociation was consistent with the presentation of victims of trauma." Considering all the evidence, the Court found, by clear and convincing evidence, that repatriating D.T.J. to Hungary, and to proximity with her father, would severely damage D.T.J.'s psychological and emotional state. A return to Hungary, and to proximity with her abusive and volatile father, would be deeply traumatic for D.T.J. Dr. Rand forcefully confirmed this finding. He credibly opined that "[p]utting [D.T.J.] back in Hungary in proximity of [her] relationship [with her father] ... would lead to a ... severe downturn in her psychological functioning" and would be "emotionally severely harmful to her." The Court carefully considered whether there were "any ameliorative measures (by the parent and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with [the] child's repatriation" here, Blondin II, 189 F.3d at 248, thus protecting the child while also preserving the jurisdiction of the Hungarian court. Because the return to Hungary itself and proximity to Jakubik himself presented a grave psychological risk to D.T.J., the Court did not find that such measures existed here.

The Court also considered whether, despite these affirmative defenses having been established, the Court should exercise its discretion to repatriate D.T.J. nonetheless. See Laguna, 2008 WL 1986253, at *12 ("A court retains the discretion to return a child to his home country, regardless of any other determination, if return would further the aims of the Convention."). The Court saw no reason to do so. The equities, on balance, favored heeding D.T.J.'s desire to remain in the United States. Notably, there was no sign that Schmirer's removal of D.T.J., although unlawful, was motivated by a desire to "remov[e] D.T.J. to [a] jurisdiction[ ] more favorable to [her] custody claims." Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir.2005).