Gee v Hendroffe, 2014 WL 60325 (D.Nev.) [South Africa] [Federal & State Judicial Remedies] [42 U.S.C. § 11603(b)][“Located”]

In Gee v Hendroffe, 2014 WL 60325 (D.Nev.)  William Gee and Hannie Hendroffe  were married in South Africa in 2002. They had  two children together, "J .G." and "S.G.".   In January 2013, the couple was divorced in Clark County, Nevada. . As part of the custody agreement, the parties stipulated to move to South Africa with the children and  that respondent could relocate to Australia by December 2017, or when petitioner relocated from South Africa, whichever occurred first.  On or around July 11, 2013, respondent left South Africa for Las Vegas, taking the children with her. She neither informed petitioner of her intention to take the children, nor obtained his consent prior to her departure. Later that same day, respondent emailed petitioner informing him that she was on her way to the United States, and that she planned on returning with the children around August 9, 2013.    

      According to respondent, on August 27, 2013, she left Las Vegas with the
children and her friend/babysitter, Yasmine Acevado, for southern California. Respondent asserted that she returned to Las Vegas to attend to legal matters on August 30, 2013, but left the children in California with Ms. Acevado for the day.  On August 30, 2013, Gee filed a petition in the district  court pursuant to the Hague Convention, demanding that the children be returned to South Africa. On August 31, 2013, Hendroffe and the children left the United States for Kuala Lumpur, flying out of Los Angeles, California. The petition and motion for warrant were not served until September 2,  2013. The documents were delivered to Ms. Acevado's home in Las   Vegas, and respondent was not aware of either the motions or the hearing    scheduled for September 4, 2013, until she was contacted by petitioner's counsel via e-mail the day of the hearing-several days after she had already left the United States.

        After the petition and motion for warrant were filed, the magistrate set a hearing on the matter for September 4, 2013.  Although the magistrate's order required respondent to be present at the hearing, respondent was never personally served with notice of such. After receiving notification of the hearing from petitioner's counsel, respondent contacted the court via telephone and indicated that she was no longer present in the United States. In an effort not to delay the hearing, the magistrate allowed respondent to appear telephonically.  At that hearing, the magistrate sua sponte raised the issue of whether the court had subject matter jurisdiction over this litigation, and ultimately continued the hearing to September 6, 2013. The magistrate set an evidentiary hearing concerning jurisdiction for October 8, 2013, and ordered all parties, including the children, present and in person at the hearing.  On September 23, 2013, the magistrate determined that the court had subject matter jurisdiction and that a hearing on jurisdiction was no longer necessary. Accordingly, the magistrate ordered that the October 8, 2013, evidentiary hearing would instead concern the petition for judicial review and motion for warrant.  The magistrate further ordered that petitioner, respondent, and their two children must be present, in person, at the aforementioned hearing, and that there would be no exceptions to the personal appearance requirement.  

        On October 8, 2013, the magistrate held the evidentiary hearing as scheduled. Present at the hearing were petitioner, petitioner's counsel, and respondent's counsel.  Respondent and the children, in violation of the magistrate's order, did not attend the hearing.  At the hearing, respondent's counsel raised the issue of whether the court had personal jurisdiction over respondent.  Petitioner's counsel called the petitioner to testify under oath.Petitioner was asked questions by his counsel, then respondent's counsel cross-examined him and, finally, the magistrate asked petitioner questions of her own.  No other witnesses were presented.
  
 On October 29, 2013, the magistrate issued a report recommending the petition
be granted, a warrant in lieu of habeas corpus be issued, and respondent's motion
to dismiss be denied. Respondent filed objections to the report and recommendation, specifically objecting to the magistrate's findings that the court has personal and subject matter jurisdiction. 

The District Court observed that it "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."28 U.S.C. §636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made."28 U.S.C. § 636(b)(1).

       The district court concluded that it did not have subject matter jurisdiction over
this matter.   Under ICARA any person seeking the return of a child in the United States may commence a civil action under the convention by "filing a petition in ... any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 42 U.S.C. § 11603(b).  Petitioner was  required to demonstrate that the court had jurisdiction by proving the children were located in this district at the time he filed the petition. He failed to do so.

       The parties' disagreement regarding subject matter jurisdiction centered around
the word "located" as it is used within the context of an ICARA petition. Relying on a footnote in Holder, the petitioner argued that the place where the children are discovered, apparently whether or not they are physically there when the petition is filed, is the determinative location. Because the children were "discovered" in Las Vegas, petitioner asserted that this court had jurisdiction.  In finding that the court did have subject matter jurisdiction, the magistrate concluded that respondent's contention that the children were in California with Ms. Acevado when the petition was filed was irrelevant because petitioner did not have knowledge of that trip, and his reasonable belief that the children were in Las Vegas was enough to establish jurisdiction. The district court held that neither the plain language of the statute nor the decisions relied on by petitioner supported that conclusion.

       In Holder, the court touched on the meaning of the word "located" in passing. In doing so, the court stated that:  [Petitioner] probably could not have brought his Hague Convention petition in  California in the first instance because California probably does not have  jurisdiction to hear it... At least one of our sister circuits has held that  "located" has a particular meaning in the context of ICARA, distinct from "a  traditional residency test."  Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998).  The Lops definition, "the place where the abducted children are discovered," is  more equivalent to the concept of physical presence.  140 F.3d at 937. This kind  of common-sense definition makes sense in the context of the ICARA and the Hague  Convention, concerned as they are with the Hague Convention's consistent  application across borders.     Holder, 305 F.3d 854, n. 5 (9th Cir.2002). 

The district court found that the footnote in Holder simply comports with a plain reading of the statute. It was clear that the word "located," as used within the context of ICARA, has a more particular and exacting meaning than a "traditional residency test," which is generally more broad. While under a "traditional residency test" analysis the children in this case may have been "located" in Nevada, that is not the proper analysis here. Under ICARA, jurisdiction exists only where the children are physically present at the time of filing. In this case it was undisputed that respondent took the children to California on or around August 27, 2013. What was disputed, however, is the date that the children returned to Las Vegas, if at all. Petitioner has produced evidence demonstrating only that respondent was in this district on August 30, 2013. Respondent produced evidence, including cell phone pictures and an affidavit from Ms. Acevado, tending to show that the children were in California on August 30, 2013-the day the petition was filed in Nevada. While the magistrate and petitioner expressed doubt regarding the credibility of such evidence, no such credibility determination was necessary. The burden is on the moving party to demonstrate that the court has jurisdiction. It is not enough to show generally that the children were in Nevada at some point in the weeks or days prior to the filing of the petition. Rather, jurisdiction under ICARA requires a more particular showing that the child is in the district at the moment the petition is filed. Here, petitioner had not produced any evidence that the children, as opposed to only respondent, were physically present in this district at the time the petition was filed. Accordingly, petitioner did not satisfy his burden of demonstrating that the children were located in this district on the date he filed the petition. Accordingly, the court did  not have jurisdiction over the matter and dismissed the case.

Langa v Langa, --- Fed.Appx. ----, 2014 WL 60110 (C.A.3 (N.J.)) [South Africa] [Habitual Residence]

In Langa v Langa, --- Fed.Appx. ----, 2014 WL 60110 (C.A.3 (N.J.))  Sibusiso Langa appealed from an order of the District Court dated April 8, 2013, denying his petition against his wife, Lulamo Langa, seeking the removal to South Africa from the United States of the parties' ten-year old twin sons, Uzoma and Uzile. The Third Circuit affirmed. 

The parties to this proceeding were both South Africans, but prior to 2012 they had resided in the United States, where their twins were born on May 15, 2002, in Suffern, New York. On July 25, 2012, Lulamo left the United States and went to South Africa with the parties' twin sons, who at least until that time had been residents of the United States. When Lulamo went to South Africa with the twins, her husband was already there as he earlier had gone to that country for business reasons. As it happened he could not leave South Africa because he was involved in criminal proceedings there arising out of a fatal automobile accident. On August 18, 2012, about three weeks after Lulamo went to South Africa with the twins, she
returned with them to the United States without the consent or even the knowledge
of her husband.   Prior to the time that Lulamo left the United States with the twins to go to South Africa, the parties anticipated moving to that country as a family to establish the family's residence there. This move was a complex undertaking involving the disposal of assets in the United States, the shipment of personal property to South Africa, and the arrangement for changing the twins' schools, in itself a complex matter particularly because the twins were not fluent in all of the languages in use in South Africa. The parties were working toward the goal of relocating to South Africa. However, when Lulamo arrived in South Africa with the twins, Lulamo and the twins did not reunite with her husband as Sibusiso and Lulamo stayed in different
cities. Lulamo and the twins never established what would be regarded as a conventional residence in South Africa as they stayed with her parents in Johannesburg during the entire three weeks they were there.  The twins never were enrolled in school in South Africa, and they did not engage in activities with other children. Neither parent arranged for housing for the family in South Africa prior to the time that Lulamo and the twins returned to the United States.

           The Third Circuit pointed out that the critical question was whether prior to August 18, 2012, the date the children left South Africa to return to the United States, they had become habitual residents of South Africa. See  Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir.2006).

         Sibusiso argued on appeal that the District Court erred in relying on what he regarded as dicta from  Feder v. Evans-Feder, 63 F.3d 217 (3d Cir.1995), in incorporating an "acclimatization" factor into its consideration of the twins' habitual residence. The Court pointed out that in Feder it explained: “[W]e believe that a child's habitual residence is the place where he or she has  been physically present for an amount of time sufficient for acclimatization and  which has a degree of settled purpose' from the child's perspective. We further  believe that a determination of whether any particular place satisfies this  standard must focus on the child and consists of an analysis of the child's  circumstances in that place and the parents' present, shared intentions  regarding their child's presence there.”

The father also argued that the court should view the case from the twins' perspective and thus should reject the District Court's conclusion that the twins' habitual residence had not become South Africa prior to their return to the United States.

The Court of Appeals agreed with the District Court that the twins' habitual residence before they returned with their mother to the United States was where it always had been, i.e., in the United States. It declined to repudiate the law that it set forth in Feder and quoted above. The twins' three-week stay with their grandparents in Johannesburg could cannot be regarded, whether viewed objectively or subjectively, as sufficient to establish their habitual residence in South Africa, no matter how that term is defined. The Hague Convention simply was not adopted by the adhering parties to require the return of children in situations like the one here.

Hollis v O’ Driscoll, --- F.3d ----, 2014 WL 43890 (C.A.2 (N.Y.) [New Zealand] [Habitual Residence] [Attorneys Fees & Costs]

In Hollis v O’ Driscoll, --- F.3d ----, 2014 WL 43890 (C.A.2 (N.Y.) the Second Circuit affirmed a judgment of the district court granting the petition of John  Matthew Hollis for the return of his daughter, H.L.O., from New York to New Zealand. It held that the District Court did not err in concluding that: (1) New Zealand was  H.L.O.'s habitual residence prior to removal, notwithstanding a lack of stable accommodations during a significant portion of her time there; (2) H.L.O.'s indefinite removal by her mother Olivia Skye O'Driscoll from New Zealand to New York was  contrary to the parties' last shared intent and, therefore, wrongful; and (3) H.L.O. had not "acclimated" to life in New York such that it was the equivalent of a new habitual residence.  It remanded the cause for further proceedings,  including a determination of whether to award costs to Hollis.

       Hollis and O'Driscoll were  both citizens of New Zealand, where they lived when their  relationship began in January 2010. After O'Driscoll became pregnant with H.L.O. in  March 2010, the two became engaged and lived together in Auckland, New Zealand in  the months leading up to H.L.O.'s birth in December 2010, and for the first five months of H.L.O.'s life.   In May 2011, the relationship began to deteriorate. Around that time, Hollis and  O'Driscoll each moved separately to Tauranga, New Zealand, and they never lived  together again. After moving to Tauranga, O'Driscoll and H.L.O. did not have their own  apartment, but instead "stayed in various guest bedrooms and on various  couches." In October 2011, O'Driscoll spent two months in Japan with H.L.O. working as a model, after which she returned to New Zealand.   In early January 2012, although still living separately, O'Driscoll and Hollis spent time  together with H.L.O., and Hollis had expressed a desire to reconcile. When O'Driscoll raised the possibility of re-launching her modeling career in New York,  Hollis indicated that he would consent to such a move on the assumption that he would also move to New York to be with O'Driscoll and H.L.O. In February 2012, after the relationship deteriorated further and O'Driscoll made clear that they would not reconcile, Hollis indicated that he did not consent to O'Driscoll moving to New York with H.L.O., and he raised the possibility of commencing a Hague Convention action if she did.   Hollis eventually agreed that O'Driscoll could take H.L.O. to New York, but only on the condition that she would stay there for no longer than four or five months. Despite this  apparent agreement, O'Driscoll remained concerned that Hollis did not consent to her taking H.L.O. to New York without him. As a result, O'Driscoll lied to Hollis about her  departure date, informing him that he would have a "play date" with H.L.O. on March 7, 2012, but instead departing with H.L.O. on a plane for New York that same day.    When O'Driscoll did not return to New Zealand in August 2012, Hollis contacted the  New Zealand central authority to initiate a Hague Convention proceeding. The attorney  assigned to Hollis promptly notified O'Driscoll that she must return H.L.O. to New  Zealand, but O'Driscoll did not comply, resulting in commencement of the present  action on March 25, 2013.

        The Second Circuit pointed out that in cases arising under the Hague Convention and ICARA, it reviews a district court's factual findings for clear error and its legal conclusions de novo. Guzzo v. Cristofano, 719 F.3d 100, 109 (2d Cir.2013). It accepts the trial court's findings unless it has a definite and firm conviction that a mistake has been  committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013) .

In determining a child's habitual residence, a  court must first 'inquire into the shared intent of those entitled to fix the child's residence  at the last time that their intent was shared. O'Driscoll's argument that New Zealand could not  have been H.L.O.'s habitual residence because H.L.O. did not have a stable home after O'Driscoll separated from Hollis in May 2011 was unavailing. The purpose of the habitual- residence inquiry under the Hague Convention is to determine which State's laws  should govern the custody dispute. Accordingly, the inquiry is limited to the "country of  habitual residence”, not whether the accommodations within the country were stable. Moreover, placing weight on the stability of a child's accommodations would require the court to delve into the merits of the underlying custody claim-a matter beyond the scope of  the Court's authority in resolving Hague Convention claims. Hollis and O'Driscoll lived together in New Zealand for approximately nine months prior to H.L.O.'s birth and for the first six months of H.L.O.'s life, and they  considered New Zealand home. That O'Driscoll and H.L.O. did not have stable accommodations after O'Driscoll and Hollis separated did not  affect, much less negate, the clear establishment of their habitual residence in New Zealand.

      O'Driscoll argued that, even if New Zealand was H.L.O.'s habitual residence, Hollis consented to her moving to the United States with H.L.O. indefinitely.  Based on the evidence adduced at trial, the District Court disagreed, determining that even though the parties had, at one point, anticipated moving to the United States  together, their shared intent at the time of removal was for O'Driscoll to bring H.L.O. to New York for no longer than five months. This finding was based on, inter alia, an email from O'Driscoll stating that her stay in New York would last no longer than four months with a temporary return to New York  for Fashion Week and O'Driscoll's attempt to deceive Hollis regarding her departure for New York with H.L.O. The determination of a habitual  residence is a "fact-intensive [one] that necessarily varies with the circumstances of  each case." Guzzo, 719 F.3d at 109. It could not conclude that the District Court's determination here was erroneous, much less clearly erroneous.

     The district court did err in determining that H.L.O.'s one-year relationship in  New York with a nanny and enrollment in a weekly play group did not amount to  "acclimation," such that, "notwithstanding a lack of shared parental intent to change the  child's long-term residence," New York had become the equivalent of "home."   In sum, the District Court made no error of law or fact in concluding that H.L.O. was  wrongfully removed from New Zealand, the state of her habitual residence, and  ordering repatriation to that State.

The Second Circuit observed that ICARA requires the "court ordering the return of a child" to order the respondent to pay these  costs unless "such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3);  Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir.2013). It held that the District Court, as the court  ordering the return of the child, is responsible in the first instance for determining what costs, if any, should be assessed against O'Driscoll, with respect to both the District Court and Court of Appeals proceedings. Ozaltin, 708 F.3d at 377 . Accordingly, it remanded the cause for consideration of whether it is appropriate to award costs to Hollis, and if so, in what amount.

Hirst v. Tiberghien, 2013 WL 6827813 (D.S.C.) [United Kingdom] [Attorneys Fees]

In Hirst v. Tiberghien, 2013 WL 6827813 (D.S.C.) Petitioner Amor Paulina Hirst ("Petitioner") filed an action against Respondent Xavier Emanuel Guillaume Salvatore Tiberghien ("Respondent") for  the return of children to the United Kingdom. On April 30, 2013, the court granted the Petition and  ordered the return of M.S.T. and A.D.T. to Petitioner.   Petitioner moved for necessary expenses associated with  bringing the an action under ICARA, seeking legal fees and expenses in the amount of $30,577.05; and non-legal expenses in the amount of $9,603.08. Petitioner also filed a bill of costs, requesting that Respondent be    taxed costs totaling $1,234.60. (ECF No. 72.) Respondent did not object to Petitioner's bill of costs. As a result, the court granted Petitioner costs in the amount of $1,234.60.

The Court observed that an award of fees and costs in cases under ICARA is governed by 42 U.S.C. s 11607(b), which provides that "[a]ny court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay  necessary expenses incurred by or on behalf of the petitioner, including court costs,  legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent  establishes that such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3).Section 11607(b)(3) specifically provides for  shifting the burden of fees, costs, and expenses to a person who wrongfully retains a  child, except where such shifting would be "clearly inappropriate."    ICARA requires Respondent to show that it would be clearly inappropriate to grant  attorney's fees and expenses to Petitioner. In opposing Petitioner's motion, Respondent argued that the attorney's fees and expenses sought by Petitioner were clearly inappropriate because they were excessive. because her  attorney engaged in overbilling by filing frivolous motions and by over-preparing for  hearings and/or trial. She further asserted that the non-legal  expenses sought by Petitioner were excessive because her husband did not need to  travel to the United States with her because he was not a party to these proceedings.  In addition, Respondent argued that an award of attorney's fees and expenses was clearly inappropriate because of his financial circumstance. He asserted that is financial condition warranted a finding of clear  inappropriateness because he now had the added expenses of having to travel to  England to see M.S.T. and A.D.T. and attempting to resolve the inevitable, expensive  custody litigation.

       The court rejected each of  Respondent's arguments. It could not ignore
that Respondent's actions caused Petitioner to incur considerable expenses in a
situation where the court ordered the return of M.S.T. and A.D.T. to her. Therefore, the
court found that Respondent failed to establish that it would be clearly inappropriate
for the court to award attorney's fees and expenses to Petitioner.

Petitioner asserted that she had to procure necessary services from (1) local South Carolina counsel, Kirby Mitchell of South Carolina Legal Services; (2) out of state lead counsel with  experience and expertise in Hague Convention matters, Stephen J. Cullen  and Kelly A. Powers  of Miles & Stockbridge P.C.; and (3) an English law  expert on the rights of custody under English law, Simon Craddock of Brethertons LLP.  She asserted that she did not seek reimbursement for  Mitchell's time, and she only sought a fixed fee of $5,309.55 for Craddock's time and $3,292.50 for his out-of-pocket travel expenses. Petitioner asserted that  her request for $21,975.00 in fees for the Miles &  Stockbridge attorneys was a significant financial concession because their legal fees in actuality amounted to
 
       The court indicated that the determination of a reasonable attorney's fee is a matter of discretion with the  court.  In determining the amount of reasonable attorney's fees to award under ICARA, federal  courts typically apply the lodestar method. Under the lodestar method, the court multiplies the number of reasonable hours  expended by a reasonable hourly rate.    In determining what constitutes a reasonable number of hours and rate, the court  considers the following twelve factors set out in  Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978):(1) the time and labor expended; (2) the novelty and difficulty  of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the  litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney's fees awards in similar cases. While the court must consider all twelve of  the factors, the court is not required to rigidly apply these factors, as not all may affect the fee in a given case.


         Petitioner asserted that she hired Cullen and Powers of Miles & Stockbridge P.C. out of Washington, D.C., because of their experience at trying Hague Convention  cases.  She argued that hourly rates of $550.00 for Cullen and $375.00 for Powers "are within the range of current reasonable  rates in the District of South Carolina for lawyers with comparable skills and experience at firms of similar reputation and resources." Petitioner further argued that she had  to find counsel outside of the South Carolina legal community because she could not find a Hague Convention specialist within the state.  Petitioner did not file any affidavits to support the hourly rates proposed for Cullen and Powers. Generally, petitioners for legal fees are required to file affidavits from other attorneys to support claims regarding the prevailing market rates of attorneys in the  community for similar cases. See  Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) However, in the absence of specific evidence regarding the prevailing market rate, the court may  establish a reasonable rate based upon its own knowledge and experience of the  relevant market.  Neves, 637 F.Supp.2d at 341-342. In this regard, the court accepted the hourly rates for Cullen and Powers as requested by Petitioner based on her unopposed suggestion that child abduction cases under ICARA do not routinely occur in  this community and the rates are reasonable based on the novelty and complexity of the relevant issues.  Petitioner submitted a billing information memo from Miles &  Stockbridge P.C. to establish the hours expended. The court notes that Cullen and Powers spent approximately one  hundred eighty-one  hours working on this matter. It further noted that Petitioner only sought compensation for forty-six
(46) hours out of the one hundred eighty-one hours specified on the billing information memo. In analyzing the hours spent litigating  this matter in the context of the relative Barber factors, and considering Respondent's  objections regarding excessiveness due to overbilling, the court found that the forty-six (46) hours of billable  attorney time sought by Petitioner were reasonably necessary to litigate the return of  M.S.T. and A.D.T. to her.

        Based on the foregoing, the court finds that attorney's fees in the amount of $21,975.00 were reasonable and appropriately awarded to Petitioner. In addition, the court fouond that Petitioner should receive $8,602.05 for expenses associated with retaining the services of her English law expert.


       Petitioner also requested an award of $9,603.08 based upon the following non-legal  expenses: $3,258.00 for Petitioner and her husband's airfare and hotel for the show cause hearing; $328.00 for Petitioner's rental car expenses for the show cause hearing; $3,335.00 for Petitioner and her husband's airfare and hotel for the bench trial; and $2,680.81 for M.S.T. and A.D.T.'s airfare to the United Kingdom.  Petitioner attached to her motion receipts for these expenditures. The court found that the non-legal expenses for her airfare, hotel, and rental car and M.S.T. and A.D.T .'s airfare were reasonable and necessary to Petitioner's  efforts to have the children returned to the United Kingdom. The court agreed with Respondent that it would be clearly inappropriate to require him to pay for Jamie  Hirst's airfare since his participation in this matter was not necessary to the return of  M.S.T. and A.D.T. to Petitioner. Therefore, the court deducted $2,962.78 from the airfare  expenses sought by Petitioner and found the remaining amount of $6,640.30 in non-legal expenses reasonable and necessary to Petitioner's efforts to have M.S.T. and A.D.T. returned to her.

Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) [Singapore] [Consent or Acquiescence] [Motion to Dismiss]

[Singapore] [Consent or Acquiescence] [Motion to Dismiss]

In Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) on August 21, 2013, Petitioner Fred Jay Skolnick filed a Verified Petition seeking the return of his five minor children to Singapore. Respondent  moved to dismiss the Amended Petition for failure to state a claim. Respondent contended that Petitioner has "waived" his right to seek relief under the Hague Convention or alternatively that he "acquiesced" in  the retention of the children in the United States by stipulating during the proceedings to the Respondent having  temporary physical custody pending the outcome of the action. Respondent's motion was denied.

According to the Amended Verified Petition Petitioner and his wife, Respondent Andrea Wainer, were both American citizens and were married in the United  States in November 1999, but  never lived here together as a married couple. They had five minor children together ranging in ages from four to twelve years old,  all of whom were born in either Hong Kong or Tokyo.   In June 2011, while the parties were living in London, Ms. Wainer filed for divorce in the Principal Registry of the Family Division, London, England (the "London Action").  In January 2012, the parties mutually agreed to move to Singapore with their children while the London Action was pending. In May 2013, with the aid of a meditator, the parties reached an agreement for shared custody in which the children  would continuously live in the same apartment, and Petitioner and Respondent would alternate between living in this apartment with the children and their own studio  apartments in the same building. Petitioner alleged that shortly after reaching this agreement, Respondent unlawfully removed the children from Singapore to the United States.    Starting in April 2012 and up until the time of removal on May 31, 2013, Petitioner alleged that the parties and their five children were habitual residents of Singapore within the meaning of the Hague Convention. Petitioner contended that under Singaporean law, he had rights of custody and was actually exercising such rights up until the wrongful removal.  On July 10, 2013, Petitioner filed an action in the High Court Republic of Singapore  seeking the return of the children.   Petitioner filed this action in the United States District  Court for the Eastern District of New York, on August 21, 2013, which was transferred to this Court on September 20, 2013.  

 On October 17, 2013, the parties entered into a stipulation which provided, inter ali, that "the parties shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer, and the children remaining enrolled in Greenwich public schools.  "After an initial period of reunification" with the children, Mr. Skolnick was to have "liberal and reasonable access to the Minor Children by phone, fax, e-mail, text message and/or Skype, as well as visitation as to be agreed upon by the parties."

            On November 22, 2013, the Court held a hearing on Petitioner's motion for an emergency order for visitation with the children. The parties were able to come to an agreement to retain the services a child psychologist "to facilitate reunification between the children and Mr. Skolnick" starting the next morning with the purpose of enabling him to have "reasonable and liberal access to the children going forward" until Mr.
Skolnick's departure to Singapore on December 1, 2013, and thereafter upon future visits pending the resolution of this action.

        The District Court observed that to survive a motion to dismiss, a complaint must contain sufficient  factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)  (quoting  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."  Conclusory allegations are not sufficient. .

        Ms. Wainer contended that there "is a dearth of factual allegations in the Petition regarding Petitioner's custody rights and the exercise of those rights"to state a plausible claim.  Respondent also contended that by  signing the Stipulation providing Ms. Wainer with primary physical custody, Petitioner "waived" his right to seek relief under the Hague Convention, or in the alternative, that by doing so, he "acquiesced" in the retention of the children in the United States
.
           The district court observed that to state a claim under the Hague Convention, Petitioner must allege (1) that the children were habitually resident in Singapore and removed to or retained in the United States, (2) that Petitioner had a right of custody under Singaporean law, and (3) that he was actually exercising this right at the time of removal. The Court found that under these standards, the Amended Petition amply alleged a Hague Convention claim. Petitioner alleged that as the natural parent of the children, he had a right of  custody under Singaporean law.  The Amended Petition further alleged that the parties mutually agreed to relocate to Singapore and establish it as their  habitual residence, and up until the children's removal in May 2013, exercised joint  physical custody over the children. The Amended Petition also detailed how the parties reached an elaborate agreement for shared custody in Singapore whereby the children would continuously live in the same apartment, and Ms. Wainer and Mr. Skolnick would alternate between the children's apartment and their respective separate studio apartments in the same building. Once the five children were removed from Singapore, the Amended Petition described how Petitioner attempted to pursue legal remedies in Singapore and the United States, and traveled to Connecticut in an attempt to reunite with his children. Accordingly, Petitioner stated a plausible claim for relief under the  Hague Convention. See  Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir.2013)  ("Hofmann's multiple visits to New York as well as his participation in family vacations demonstrated that he was exercising his custodial rights up to the time the divorce  proceedings were initiated."); Norden-Powers v. Beveridge, 125 F.Supp.2d 634, 640  (E.D.N.Y.2000).

      Respondent argued that by signing the Stipulation, "Petitioner waived his rights under the Hague Convention by stipulating to primary physical custody of the parties' children" with Respondent.  Respondent also asserted that by signing the Stipulation, Petitioner "acquiesced" in the retention of the children in the  United States. The Court found that Respondent's "waiver" argument was really one of ripeness or jurisdiction. She asserted that "Petitioner does not have a claim for wrongful retention at this time because, pursuant to the parties' agreed upon Stipulation, Ms. Wainer is to have physical custody of the children in Greenwich at least until January 8, 2014. And, there is no express or implied provision in the Stipulation that on January 8, 2014, Ms. Wainer is to return the children to Singapore."  Because Respondent was entitled to exercise primary physical custody over the children under the Stipulation, she asserted that Petitioner's Amended Petition alleged no more than an "anticipatory breach of the parties' Stipulation."    An Article III court cannot entertain a claim that is not ripe, i .e. one "which is based upon contingent future events that may not occur as anticipated, or indeed may not  occur at all." Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir.1998)

        The Court noted that a Hague Convention claim can allege either "wrongful removal or retention," 42 U.S.C. § 11603(f)(2) and, Petitioner amply alleged wrongful removal. This allegation was sufficient to state a justiciable claim for relief. To the extent that Respondent asserted that due to the Stipulation her retention of the children was no longer "wrongful," this assertion went to the affirmative defense of acquiescence Respondent cites two cases purporting to  support her jurisdictional argument:  Toren v. Toren, 191 F.3d 23, 25 (1st Cir.1999) and Falk v. Sinclair, 692 F.Supp.2d 147 (D.Me.2010) for the proposition that "there can be no wrongful retention until such time as the children are required to be returned to Singapore" under the terms of the Stipulation. As an initial matter, the Court held that whether events subsequent to the filing of the Amended Petition defeat Petitioner's claim speak to the affirmative defense of acquiescence. Respondent's invocation of this affirmative defense is not properly considered on  Respondent's motion to dismiss. Affirmative defenses may only "be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment  procedure, if the defense appears on the face of the complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). The Stipulation upon which Respondent relied was not signed until after Petitioner filed the Amended Petition. The resolution of this defense on a motion to dismiss is especially inappropriate here given that "even where the grounds for one of [the] 'narrow' exceptions have been established, the district court is not  necessarily bound to allow the child to remain with the abducting parent," and must exercise its discretion in light of the entire record developed at a hearing on the merits to consider whether such an order would further the aims of the Convention. Blondin, 189 F.3d at 246 n.4.
   
        On the merits, Respondent's argument failed as well. As Respondent acknowledged "acquiescence under the Convention requires either: an act or statement with the  requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period  of time." Friedrich, 78 F.3d at 1070. The showing required is "stringent."   Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir.2005). The Stipulation was drafted to modify the First Superior Court Ex Parte  Protective Order, which was entered without Petitioner's consent and prevented him  from exercising custody or visitation rights. Rather than evincing Mr. Skolnick's intent to renounce his rights, the Stipulation expanded his rights in contrast to the limitations imposed by the First Superior Court Ex Parte Protective Order.

   The parties agreed that they "shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer.  The Stipulation also provided that it was entered into "without prejudice to either party's claims" before this Court, "the action pending in London or the Singapore Action including, but not limited to, any claims regarding custody of or visitation with the Minor Children." Another provision appeared to not only undermine Respondent's  argument, but also to prohibit her from even advancing it: "No adverse inference shall be drawn from the continuation of the Conditions of  Protection pursuant to this Stipulation or the underlying Order, and neither party nor its  attorneys in any jurisdiction shall request any tribunal to do so."    Far from "a convincing written renunciation of rights," Friedrich, 78 F.3d at 1070, by its own terms the Stipulation evinced the parties' intent to reach a temporary agreement for custody, and for Mr. Skolnick to gain, not renounce, his access to the children pending the outcome of this case. The parties' Stipulation clearly evinced their intent only to preserve the  status quo pending the resolution of this action. Thus, this provisional agreement does not meet the stringent standards for a finding of acquiescence.

Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) [Scotland] [Habitual Residence]

In Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) Mr. Chaffin appealed the decision of the district court granting Lynne Chafin's (Ms. Chafin) petition for wrongful removal following remand from the United States Supreme Court. Chafin v. Chafin, --- U.S. ----, 133 S.Ct. 1017, 1028 (2013). The Supreme Court held that Mr. Chafin's appeal was not rendered moot because it was uncertain whether the determination of his daughter's habitual residence was correct.  The Court of Appeals affirmed finding that Mr. Chafin had not  demonstrated that the district court's findings of fact were clearly erroneous, and that it  correctly applied the law to the facts.

           Mr. Chafin, a United States citizen, married Ms. Chafin, a citizen of the United  Kingdom, in 2006. While Mr. Chafin was deployed to Afghanistan, Ms. Chafin took their  daughter, E.C., to Scotland. Later, Mr. Chafin was transferred to Alabama. It was around this time that the couple began to experience marital conflict. In February 2010,  after several years of living in Scotland, Ms. Chafin took E.C. to Alabama for what the district court concluded was "at most ... a trial period, which did not work out. Following
attempts at reconciliation, Mr. Chafin filed for divorce and custody in Alabama. The district court found that Mr. Chafin removed E.C.'s passport, wrongfully retaining E.C. in the United States and  effectively preventing Ms. Chafin from returning to Scotland.  In February 2011, following a charge for domestic violence which was subsequently dropped, Ms. Chafin was deported.  After a bench trial, the district court found that E.C.'s country of habitual residence was Scotland and that Mr. Chafin failed to establish by clear and convincing evidence that returning E.C. to Scotland would expose her to grave risk of harm.

The Court of Appeals observed that under the Convention and the ICARA, judicial determinations of ICARA petitions requesting the return of children who have been wrongfully taken or retained must be  done in an expeditious manner.  The Convention proposes a six-week timeframe from the initial filing of the petition to a decision regarding return. Art. 11. While other countries have enacted provisions containing mandatory timeframes for return proceedings and appeals, Congress did not provide such a timetable when enacting the ICARA. The  Supreme Court has recommended that "courts ... take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation." Chafin, 133 S.Ct. at 1027. It observed that this case had been ongoing for more than three and a half years.  E.C. was four years old when Ms. Chafin filed the petition; she was now at least six years old  and the question of her habitual residence still remained.
 
The Court noted that it employed  a mixed standard of review for determining habitual residence  under the Convention. It reviews the district court's findings of fact for  clear error and its legal determinations and application of the law to the facts de novo.  When analyzing the question of habitual residence, after an initial finding that parents lack a settled intent to abandon their child's prior  habitual residence for a new one, the burden is on the party asserting a change in habitual  residence increases.  In such cases, courts should be hesitant to find a change in habitual residence unless the facts point "unequivocally to a change," or the court can confidently conclude that the child's attachments have changed such that returning them to the original forum would be extremely disruptive.

   Mr. Chafin argued that the district court clearly erred in finding that he retained E.C.'s U.K. and U.S. passports because Ms. Chafin had E.C.'s U.S. passport and could have returned to Scotland with E.C. but chose not to leave; that the district judge erred by deciding to credit Ms. Chafin's testimony during the bench trial more heavily than Mr. Chafin's evidence that she intended to remain in Alabama permanently. In contrast, Ms. Chafin insisted that the  objective facts indicated that she came to Alabama on a tourist visa for a trial period to work on her strained marriage and was prevented from returning to Scotland with E.C. because Mr. Chafin hid E.C.'s passports.

   The Court indicated that its  analysis in the Ruiz case was instructive. There, it affirmed the district court's  initial finding that the parents lacked a shared intention to abandon their prior U.S. residence and make Mexico the habitual residence of their children.  Ruiz, 392 F.3d at 1254. In the absence of a settled intention to change residence, the court looked to the objective facts, finding that they pointed to a determination that the prior residence had not been abandoned and habitual residence in Mexico was not established. Despite several facts pointing toward the conclusion that Mexico was their new residence, including the family's length of stay, the construction of a new house, and Mr. Ruiz's employment, it concluded that the entirety of the evidence tended to show that  the move from the United States to Mexico was conditional.  In the present case, the district judge found that the testimony and evidence established that Ms. Chafin decided to return to Scotland with E.C. in early May 2010, and that but for Mr. Chafin serving her with a petition for divorce and an emergency  custody restraining order, she would have left the United States with her  daughter. Ms. Chafin testified that she and E.C. came to the United States in February, 2010 on a ninety-day visitor visa that is only issued with proof of a return ticket. The district court noted that this evidence was not contradicted. In an attempt to save their marriage, Mr. and Ms. Chafin took a trip together in April, 2010, which both agreed was unsuccessful. Ms. Chafin testified that, following that trip, she and Mr. Chafin agreed to work out a separation so that she and E.C. could return to Scotland.  However, before Ms. Chafin could return, Mr. Chafin served her with an emergency custody petition and removed E.C.'s passports from their location. The district court found credible Ms. Chafin's testimony that she could not leave the United States without E.C.'s U.K. passport. The district court found that E.C. was wrongfully retained in the United States as of May 15, 2010, when Mr. Chafin removed her passport from its location. Further, Ms. Chafin's testimony that she believed Mr. Chafin  would be transferred to Germany in September, 2010 indicated to the district court a  lack of intent to allow E.C. to remain in the United States permanently. Finally, the district court emphasized the fact that Ms. Chafin maintained her residence in Scotland and did not cancel E .C.'s planned enrollment in Scottish school when she came to Alabama in February, 2010.

       Here, as in Ruiz, the district court found that the parties did not have a settled intent to  change E.C.'s habitual residence from Scotland to Alabama.  It was not clearly erroneous.  If there is no settled intent on the part of the parents to abandon a child's prior habitual residence, "courts should be hesitant to find a change in habitual residence unless objective facts point unequivocally to a change or the court can 'say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount' to changing the child's family and social environment."(quoting  Mozes, 239 F.3d at 1081). Here, there were objective facts pointing to each country, and the de novo review confirmed that it was not unequivocally clear that E.C.'s habitual
residence in Scotland was abandoned for a new habitual residence in Alabama. Therefore, it affirmed the district court's decision to grant Ms. Chafin's petition.

Weintraub v Waite, 2013 WL 6622899 (W.D.Wash.) [Sweden] [Federal & State Judicial Remedies] [Summary judgment]

          In Weintraub v Waite, 2013 WL 6622899 (W.D.Wash.) Petitioner moved for    Summary judgment . The district court observed that the moving party is entitled to judgment as a matter of law when  the nonmoving party fails to make a sufficient showing on an essential element of a  claim in the case on which the nonmoving party has the burden of proof.  Celotex Corp.  v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present  specific, significant probative evidence, not simply "some metaphysical doubt."). See alsoFed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986);  T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir.1987).

     The record showed that the children of the parties were retained in the United States after a vacation trip from Sweden on August 3, 2013, when their return to Sweden was planned.    It appeared clear from the record that immediately prior to the retention of the children in the United States, the children were habitual residents of Sweden, where their family home had been established with their mother and father. The retention of the children in the United States breached the rights of custody of the petitioner under the law of Sweden.    The petitioner was exercising parental rights at the time of the retention of the children in the United States. There was no material issue of fact as to whether he was exercising parental rights in Sweden and during their visit to the United States prior to August 3, 2013. The Court found that the children were wrongfully retained in the United States. However, a material issue of fact remained as to whether there was a grave risk that the childrens' return that would  expose them to the physical or psychological harm, or otherwise place the child in an intolerable situation, under the Hague Convention Article 13(b), if  ordered returned to Sweden. The court held that the question of whether respondent's proof reached the clear and convincing standard could best be resolved at hearing.   Another question remained as to whether the children would be at grave risk if they returned to Sweden in the company of their mother. The court set the matter down for a hearing limited to the issue of whether the return of the children to Sweden would present such a grave risk to them. To the foregoing extent, the petitioner's Motion for Summary Judgment was granted in part and denied in part.

Mendoza v Silva, 2013 WL 6491479 (N.D.Iowa)[Mexico] [Habitual Residence] [Consent or acquiescence] [video testimony] [Petition Granted] [Stay pending appeal denied]

In Mendoza v Silva, 2013 WL 6491479 (N.D.Iowa) Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed an action to secure the return of her daughters, five-year-old K.G.M.A. and four-year-old M.K.M.A.. At the consolidated trial on the merits and preliminary injunction hearing, Ms. Mendoza testified by video conference from Mexico .The parties wer married on September 15, 2006, in Celaya, Guanajuato, Mexico. At the time, Ms. Mendoza was a Mexican citizen, but Mr. Medina had been living in the United States since he was about five years old, and he had been a naturalized United States citizen since September 17, 2004. Mr. Medina lived in Storm Lake, Iowa, with his parents. Ms. Mendoza gave birth to the parties' first child, K.G.M.A., a daughter, in 2007, and their second child, M.K.M.A., also a daughter, in 2009, both in Celaya, Guanajuato, Mexico. The parties had a third daughter, K.V.M.A., who was born in 2011, but who had remained in the custody of Ms. Mendoza in Mexico. The parties' two older children were United States citizens.

After the parties married in 2006, Mr. Medina lived primarily in the United States. He would live in the United States for about six months at a time, he would visit Ms. Mendoza and the children in Mexico for about two months, then he would return to the United States alone for another lengthy period. During Mr. Medina's visits to and absences from Mexico, the children consistently lived with Ms. Mendoza in Mexico. Ms. Mendoza lived with Ms. Mendoza's mother in her mother's house, and Ms. Mendoza paid rent to her mother. After the parties' children were born, they also lived with Ms. Mendoza and her mother when they were in Mexico. After M.K.M.A. was born, both of the older children attended daycare and preschool in Mexico and received regular medical care there. K.G.M.A. was registered for and assigned to an elementary school in Celaya.

The parties separated permanently in July 2012. Ms. Mendoza testified that the separation came after Mr. Medina assaulted her. Ms. Mendoza testified that, prior to their separation, Mr. Medina assaulted her on a regular basis. Mr. Medina did not dispute the separation, but asserted that Ms. Mendoza's definition of "assault" was simply raising his voice. The only divorce proceeding initiated by either party was one filed by Mr. Medina in the Iowa District Court for Buena Vista County. Mr. Medina's Petition For Dissolution Of Marriage was filed on November 15, 2013.

Mr. Medina asserted that Ms. Mendoza had contacted him and demanded that he take the children, because she no longer loved them or wished to care for them. The only circumstantial evidence that Mr. Medina offered in support of this position were some text messages that Ms. Mendoza sent to Mr. Medina on May 12, 2012, although the parties disputed both the significance and the translation of these text messages. Mr. Medina testified that he and Ms. Mendoza thereafter arranged for the two older girls to come to the United States permanently, beginning in December 2012. Ms. Mendoza described the text messages as a momentary venting of frustration, but that she never agreed nor wanted the children to go to the United States permanently.

Ms. Mendoza contended that, when Mr. Medina and his mother, Lucina Medina, arrived at the boarder to pick up the children, they told Ms. Mendoza that Mr. Medina planned to keep the children for at least six months, instead of returning the children in six or eight weeks, as previously agreed, and that Ms. Mendoza objected. Mr. Medina and his mother testified that there had been no prior agreement for a short visit by the children; rather, the agreement was for the permanent transfer of the two older children to the United States. They testified that Ms. Mendoza suddenly reiterated her prior demands that Mr. Medina again take her across the border illegally, as well as the children, this time so that Ms. Mendoza could go to Texas to be with a man with whom she had struck up a relationship over the internet. A physical altercation between Ms. Mendoza and Mrs. Medina occurred on December 8, 2013. The Mexican federal police intervened and that Ms. Mendoza was detained overnight by the Second Agency of the Public Ministry of Family Protection for assaulting Mr. Medina's mother. The parties reached an agreement to resolve the dispute at the border (Exhibit S), but their versions of that agreement differed very substantially. Mr. Medina and his mother both testified, however, that the only agreement reached with anyone was that Lucina Medina would drop the charges against Ms. Mendoza arising from the altercation on December 18, 2012, and that Mr. Medina and his mother would be allowed to take K.G.M.A. and M.K.M.A. to the United States permanently, as previously agreed. Lucina Medina testified that what purported to be her signature on Exhibit S is "the way [she] writes it." She also testified, however, that she did not read or write much Spanish or English, and that trying to read something as long as Exhibit S would have given her a headache. She testified that, to the extent that anyone explained any agreement to her, she understood that it was for her to drop the charges against Ms. Mendoza and for her and Mr. Medina to take the children to the United States. Mr. Medina admitted that his mother's signature was on Exhibit S, but denied that what purported to be his signature was his signature. He also denied that there was ever any agreement for the return of the children on February 2, 2013. He also testified that he was not a party to any agreement and that the only agreement at the border was between his mother and Ms. Mendoza to drop the charges against Ms. Mendoza, so that she would not have to spend any time in prison and so that he and his mother could take the children to the United States. Mr. Medina also denied ever having read either Exhibit S or the English translation of it prior to reading it while in the witness box on the second day of the consolidated trial and preliminary injunction hearing on December 5, 2012, notwithstanding that it was an exhibit that was served on him with Ms. Mendoza's Verified Complaint. Ms. Mendoza testified that when she called Mr. Medina to talk to the children in the United States in January 2013, Mr. Medina told her that she should not bother showing up to pick up the children on February 2, 2013. Ms. Mendoza objected and told Mr. Medina that she expected him to return the children as agreed. That telephone conversation was the last contact that Ms. Mendoza had with Mr. Medina or her two oldest children until these proceedings were initiated. On February 2, 2013, Ms. Mendoza arrived at the bus station in Nuevo Laredo and waited until 7:00 p.m., the time that the parties had agreed that the children would be returned, but Mr. Medina did not arrive with the children.

Mr. Medina also argued that, after he retained the children in the United States, Ms. Mendoza acquiesced in his doing so. Ms. Mendoza testified that, after her last call to Mr. Medina in January 2013, he changed his telephone number and his address, because she was unable to contact him or the children by telephone, and that she did not have any means of contacting or locating the children, Mr. Medina, or Mr. Medina's family. She contended that her attempts to contact Mr. Medina or the children by telephone, e-mail, or "facebook" had been ignored by Mr. Medina. Mr. Medina admitted that he and his parents had obtained a new telephone number in January 2013, which he had never provided to Ms. Mendoza, and that he and his parents (with his children) moved to a new address in Storm Lake, Iowa, in August 2013, which he admitted that he also had never provided to Ms. Mendoza. He testified that he did not take any steps to convey his new contact information to Ms. Mendoza, because he believed that she wanted nothing to do with her children and that such conduct in a mother was unacceptable. He also asserted that Ms. Mendoza could have found a way to contact him.

Ms. Mendoza testified that she had not received any calls from Mr. Mendoza after the last call in January 2013. Mr. Medina testified that he had called Ms. Mendoza's home phone number two or three times in January 2013, but had not left a message, because Mexican telephones have caller ID, just like United States telephones. He admitted that he had not tried to call her home telephone numbers since January 2013. Although Mr. Medina testified that he thought that Ms. Mendoza could contact him by e-mail, he then testified that he rarely checked his e-mail. Mr. Medina also initially denied that he had a "facebook" page. When pressed by Ms. Mendoza's counsel, however, Mr. Medina admitted that he had had a "facebook" account, but had taken it down after only a few months, because it didn't interest
him.

On March 6, 2013, Ms. Mendoza submitted a Request For Return Of Children to the
United States Department of State through the Mexican Central Authority. The court found that K.G.M.A. and M.K.M.A. were "removed" from Mexico to the United States in December 2012. The parties initially agreed that K.G.M.A. and M.K.M.A. could visit Mr. Medina in the United States. Mr. Medina "retained" K.G.M.A. and M.K.M.A. in the United States when he did not return them to Mexico on February 2, 2013, as the parties had agreed. It found that Exhibit S confirmed Ms. Mendoza's testimony that the parties had an agreement for the return of the children to Mexico after a temporary stay in the United States and undermined Mr. Medina's testimony that the parties had an agreement for a permanent transfer of the children to his custody in the United States. Thus, the date of the "retention" here was February 2, 2013, when Ms. Mendoza was to meet the children at the United States/Mexico border, but they did not appear as Ms. Mendoza and Mr. Medina had agreed at the time of the children's "removal" to the United States.

The district court observed that the Eighth Circuit Court of Appeals had upheld a determination that the country where the children had lived for their whole lives or for a number of years immediately before their removal or retention and where the children had attended school was the children's "habitual residence," where there is no indication that the children had spent any significant time in another country and the intent of the parents to stay in that country or another country was uncertain or differed between the parents. Here, prior to their retention in the United States, K.G .M.A. and M.K.M.A. had lived almost their entire lives in Mexico, with only one stay out of that country for both M.K.M.A. and K.G.M.A .-a stay in the United States with Mr. Medina for eleven months, which was longer than the two months that the parties had agreed that visit would last-and a prior, illegal stay of four months in the United States by K.G.M.A. It was clear that, even at the time of these visits, from the perspective of the children and the parents, K.G.M.A.'s first stay was a temporary, illegal visit, and the longer stay by both children in the United States was also temporary-although Mr. Medina kept the children longer than the parties had agreed. In both instances, the children ultimately returned to Mexico for an extended period of time and, from their perspective, those returns were to their habitual residence. A determination of "habitual residence" is not overturned by consent judgments or agreements, either on the basis of res judicata or contracts. Thus, the court found that Mexico was the children's "habitual residence" prior to their allegedly wrongful retention in the United States on February 2, 2013.

The Court concluded that Mexican law (patria potestas) afforded Ms. Mendoza a custody right to determine where K.G.M.A. and M.K.M.A. resided at the time that the children were "retained" by Mr. Medina in the United States, and that Ms. Mendoza was exercising that custody right "[a]t the time of ... retention" or that her right "would have been so exercised but for the ... retention."Ms. Mendoza had been actually exercising her custodial rights over K.G.M.A. and M.K.M.A. up until the time that they went to visit Mr. Medina in the United States in December 2012; and, but for Mr. Medina's failure to return the children, she would again be exercising parental rights as the person actually in sole custody of the children. Mr. Medina's retention of the children was "wrongful."

The court noted that "Consent" and "acquiescence" were separate affirmative defenses. "Consent" involves an agreement to removal or retention before the removal or retention occurred, and "acquiescence" is specifically identified in Hague Convention as "subsequent acquiescence," that is, it considers agreement to the responding party's retention of the children after the retention occurred. The only circumstantial evidence that Mr. Medina offered in support of a "consent" affirmative defense were some text messages that the parties did not dispute that Ms. Mendoza sent to Mr. Medina on May 12, 2012, although the parties disputed both the significance and the translation of these text messages. The Court found credible Ms. Mendoza's explanation of the text messages as a momentary venting of frustration, and that they were not an indication that she ever agreed to or wanted permanent transfer of the children to the United States. These text messages, by themselves, did not constitute consent by Ms. Mendoza, before the removal or retention of the children, to a permanent transfer of the two older children to the United States. The court found that the evidence of Ms. Mendoza's actions all indicated that Ms. Mendoza had not consented to a permanent transfer of the children to the United States. Nor had Mr. Medina has proved "acquiescence" by Ms. Mendoza after the removal and retention of the children by the preponderance of the evidence. Mr. Medina appeared to base his "acquiescence" affirmative defense on his contention that Ms. Mendoza did not attempt to contact him or any of his family members after January 2013. The court found that the credibility of Mr. Medina's contention that Ms. Mendoza did not attempt to get in contact with him or the children or his family members after he retained the children to be completely undermined by Ms. Mendoza's evidence that she made repeated attempts to call and e-mail Mr. Medina and that she did not have a current telephone number or address for him or the children. Her testimony on this point was confirmed by Mr. Medina's own admissions that he changed his telephone number in January 2013 without notifying Ms. Mendoza of the change; that he and his family moved to a new address in Storm Lake in August 2013, again without notifying Ms. Mendoza of his new address; his admission that he "rarely" looked at his e-mail or his "facebook" page, after he asserted that they were adequate means for Ms. Mendoza to contact him; and his unsubstantiated suggestion that Ms. Mendoza's e-mails to him might have been filtered into a "junk" file. The court concluded that Mr. Medina could not rely on an "acquiescence" defense, where he actively thwarted Ms. Mendoza's attempts to contact him or the children. Moreover, Ms. Mendoza's protests at Mr. Medina's statement that she need not bother to come to the border on February 2, 2013, to get the children; her actually going to the border to get the children on February 2, 2013, when they did not appear; her prompt efforts, beginning March 6, 2013, to obtain return of the children by submitting a Request For Return Of Children to the United States Department of State through the Mexican Central Authority; her pursuit of legal assistance both in Mexico and in the United States; and her prosecution of this action undermine
Mr. Medina's contention that Ms. Mendoza simply "acquiesced," after the fact, to his failure to return the children as agreed on February 2, 2013, or his retention of the children thereafter in the United States.

　

The Court denied the Respondents motion for a stay pending appeal, but gave him 30 days to move in the Court of Appeals for a stay, observing that in an ICARA case courts apply the four traditional stay factors in considering whether to stay a return order pursuant to ICARA: " '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." ' In Chafin, the Court held that the return of the children to their state of habitual residence does not "moot" an appeal of the order for return. Id. at ----, 133 S.Ct. at 1025-26. The Court did not find not find that Mr. Medina made a strong showing that he was likely to succeed on the merits of an appeal of the order for return because its decision turned on credibility issues, and concluded that he would not be irreparably injured absent a stay of the order for return.

Mauvais v. Herisse, 2013 WL 6383930 (D.Mass.) [Canada] [Federal & State Judicial Remedies ] [Temporary Restraining Order]

In Mauvais v. Herisse, 2013 WL 6383930 (D.Mass.) Plaintiff Manel Mauvais filed , inter alia, a Verified Complaint and Petition for the Return of Children Pursuant to the Hague Convention and a Motion for Temporary Restraining Order and Expedited Hearing. The Petition sought to compel Nathalie Herisse ("defendant") to appear in court to show cause why the minor children MM and RM should not be returned to Canada. The complaint alleged that RM was brought from Canada to the United States on August 25, 2013 by the defendant's aunt, and had been retained here without plaintiff's consent. The complaint alleged that plaintiff last saw MM on September 13, 2013, and it was presumed that she traveled to the United States with defendant's aunt as well as the defendant and RM.

The Court observed that it had authority to prevent a child's concealment or removal from the District until the Petition is ruled upon. 42 U.S.C. § 11604(a); Fed.R.Civ.P.65. ICARA expressly authorizes a court to "take or cause to be taken measures under Federal or State law, as appropriate, ... to prevent the child's further removal or concealment before the final disposition of the petition."42 U.S.C. § 11604(a). The court found that given the representations made to the Court by plaintiff, and the very serious irreparable harm that was likely to result both to the children and to plaintiff in the event the children were wrongly removed from this jurisdiction, a Temporary Restraining Order was justified to preserve the status quo pending a hearing. For purposes of Fed.R.Civ.P. 65(b), plaintiff has made a sufficient showing that unless the injunction is granted, he may sustain immediate and irreparable injury before there is an opportunity to hear from all parties. From the present record, it does not appear that irreparable harm to defendant will result from the granting of this temporary injunction. The balance of hardships tipped in favor of plaintiff. Issuance of an injunction without prior notice to defendant was necessary due to the possibility (judging by plaintiff's submissions) that the children might be concealed or taken from this jurisdiction before the injunction can be served. The Court, in the exercise of its discretion, declined to require plaintiff to post a bond as a condition of obtaining this injunction. Thus, plaintiff's Motion for Temporary Restraining Order was granted as to prohibiting the defendant from removing the minor children MM and RM from the Court's jurisdiction pending the final disposition of this matter. 42 U.S.C. § 11604.

Carvajal v. Chavarria,--- F.Supp.2d ----, 2013 WL 6442704 (D.Conn.) [Costa Rica] [Rights of Custody] [Consent ] [Grave risk of harm] [Petition Granted]

In Carvajal v. Chavarria,--- F.Supp.2d ----, 2013 WL 6442704 (D.Conn.) petitioner, Pablo E. Vasquez Carvajal, ("Vasquez") brought an action against respondent, Diana Gonzalez Chavarria, ("Gonzalez") seeking, inter alia, the return to Costa Rica of their seven-year-old son, L.V. On December 9, 2013, the court held a consolidated hearing on the petitioner's motion for a preliminary injunction and trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2), at the request of the petitioner and with the agreement of the respondent. Respondent Gonzalez did not contest the court's determination that petitioner Vasquez has established the elements of a prima facie cause of action for return. Gonzalez contended that the court was not bound to order the return of L.V. to Costa Rica because Gonzalez had established (i) that Vasquez consented to the removal of L.V. to the United States, and (ii) there was a grave risk that L.V.'s return to Costa Rica would expose the child to harm.

The Court granted the petition for return. It found that Vasquez and Gonzalez were living together prior to the birth of L.V. in 2006, and continued to live together with L.V. until September 2010. In September 2010, Gonzalez left their home, and Vasquez and L.V. continued to reside together. Then in February 2011, L.V. went to live with Gonzalez On November 29, 2011, the Family Court of the Second Judicial Circuit of San Jose issued a judgment ("Family Court Judgment") based on an agreement between Gonzalez and Vasquez. The judgment set forth, inter alia, the times during which L.V would stay with his father. It is undisputed that at all times before Gonzalez brought L.V. to the United States on or about May 29, 2013, L.V. resided in Costa Rica. Thus, the petitioner established that the child was habitually resident in Costa Rica and then removed to the United States. The court concluded that L.V. was wrongfully removed in breach of Vasquez's custody rights under the laws of Costa Rica  because, as held by the United States Supreme Court in Abbott v. Abbott, 560 U.S. 1, 10, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), Vasquez's "ne exeat right is a right of custody under the [ Hague] Convention." Both Vasquez and Gonzalez testified that Vasquez consistently spent time with L.V. during the periods he was authorized to do so under the Family Court Judgment up to the time when L.V. was removed to the United States by Gonzalez. Thus, Vasquez has established he was exercising custody rights at the time L.V. was removed to the United States.


Gonzalez relied on a Minores Exit Permit and a conversation she had Vasquez in February 2013 to attempt to establish the consent defense. The Exit Permit was obtained in June 2007 and lists both parents as companions of the minor. It was modified on July 14, 2010, to reflect that L.V. may travel with "either of his parents  Diana Gonzales Chavarria ... Pablo Esteban Vasqeuz Carvajal...." The Exit Permit was obtained and modified at times when Vasquez and Gonzalez were living together. They did not separate until September 2010. The court found significant the fact that the Family Court Judgment made no reference to the possibility of Gonzalez and/or L.V. relocating outside of Costa Rica. For this reason, the court credited Vasquez's testimony that by applying for this Exit Permit and agreeing to the modification, he was not consenting to Gonzalez's removal of L.V. from his habitual residence in Costa Rica. In addition, a Letter of Advice from the Central Authority made it clear that the issuance of the Exit Permit is separate and apart from consent by a parent to removal of his or her child from Costa Rica. As to the February 2013 conversation, the court credited Vasquez's testimony to the effect that when Gonzalez broached the idea of relocating L.V. to the United States, Vasquez said "no" and did not elaborate because they were in the presence of others and he did not want to have an argument. Even Gonzalez testified that Vasquez did not consent, but rather that Vasquez said he would think about it.

The Court found that Gonzalez did not establish "there is a grave risk that his ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, Art. 13(b). At most her testimony created an issue as to whether living conditions in the United States might be better.

As to physical or psychological harm, Gonzalez offered evidence as to incidents
between Vasquez and herself or Gonzalez's boyfriend, all of which predated the Family
Court Judgment. This court found that the Family Court Judgment was the best evidence as to whether there was any risk to L.V. as a result of his being in Costa Rica and spending time with his father. As to a grave risk that L.V. would otherwise be placed in an intolerable situation, Gonzalez testified that L.V. was doing better in school in the United States and had better access to medical care. The testimony was disputed by Vasquez, who testified as to L.V.'s schooling in Costa Rica, the availability of medical care, and the fact that he took L.V. for dental appointments in Costa Rica. Gonzalez also testified that she could earn more here than in Costa Rica. Her testimony in substance was to the effect that there is a higher standard of living in the United States than in Costa Rica; even if she was correct, that fact would not support a conclusion that L.V. would be placed in an intolerable situation.

Application of Gavia v Hernandez, 2013 WL 6115725 (D. Utah) [Mexico] [Guardian ad litem] [Well-Settled] [Age and Maturity] [Petition Denied]

In Application of Gavia v Hernandez, 2013 WL 6115725 (D. Utah) Alma Rosa Ornelas Gavia ("Petitioner" or "Ms. Ornelas") on October 29, 2013 filed a Verified Complaint and Petition for Return of Minor Children. Petitioner was a Mexican national residing in the City of Leon, Mexico in the State of Guanajuato. Respondent was a Mexican national residing in Sandy, Utah. Petitioner and Respondent were married in Leon, Mexico on March 19, 1999. After their marriage in 1999, Petitioner and Respondent moved to the United States. ABTO was born in Los Angeles, California on February 28, 2001. MZTO was born in Los Angeles, California on February 15, 2002. ABTO and MZTO were both United States' citizens. They lived in California until 2009, with the exception of a period prior to 2009 when the Petitioner took the Children to Mexico. On or about July 7, 2009, Petitioner and Respondent separated. After the separation, Petitioner returned with the children to her parent's home in Leon, Mexico. Respondent relocated from California to Utah. Respondent testified that as Petitioner was preparing to leave him and take the Children to Mexico, she told him that if he would not agree to them residing with her in Mexico that she would take them and disappear in Mexico. Respondent therefore acquiesced to the Children residing with Petitioner in Mexico. Shortly after Petitioner moved to Mexico, she gave birth to a third child SCTO, who was the daughter of Petitioner and Respondent and the sister of ABTO and MZTO. Between July 2009 and late June 2012, Petitioner and the children lived with Petitioner in her family home in Leon, Mexico. The children's mother, the Petitioner, worked in Mexico as a secretary 20 hours per week. Petitioner had a boyfriend. In approximately January 2012, he came to live with Petitioner and the Petitioner's three children in Petitioner's parents' house. In approximately March 2012, the boyfriend's three children also came to live in the house. Petitioner's boyfriend and his three children continued to reside with Petitioner. While the Children were living in Mexico, the Petitioner did not regularly cook for them, often leaving one of the Children to prepare the family meals. One of the Children was often sent alone to buy food, which made her nervous. The Petitioner "partied" and sometimes left the Children to care for themselves and their younger sister for long periods while Petitioner was away. . On occasion, Petitioner threw things at the Children, once throwing her cell phone at one of the Children. On one occasion, Petitioner struck one of the Children in the back of the head, which caused the child to strike her front tooth, breaking it. Although the Petitioner testified that the area where they lived was safe, the Children said that they feared going out onto the streets because of a fear of gang activity. Petitioner did not take the Children to the doctor in Mexico, but relied on their grandfather to make medications to care for them when ill. The Children did not feel safe living with Petitioner in Mexico. While the Children were living in Mexico, the Respondent regularly sent money to the Petitioner for the support of the Children, including tuition for private schooling.

In April or May of 2012, Petitioner and Respondent began to discuss the possibility of the Children coming to live with the Respondent in Utah. The Petitioner testified that in June of 2012, she agreed to allow ABTO and MZTO to travel to Utah to be with their father. Petitioner testified that the children were to remain in Utah for only two weeks at which time they were to return to Mexico. The Children testified that their mother told them they were coming to Utah to visit for two-weeks. The Respondent testified that the children wanted to come to Utah and remain indefinitely. He testified that they were to remain in Utah until they decided they wanted to return to Mexico. He denied that there was any agreement that the children would return to Mexico after two-weeks. The Children arrived in Utah on July 3, 2012. Upon arrival in Utah, the Children carried with them a passport, social security cards, child identification cards issued by the state of California, immunization records for both Children, and birth certificates which had been given to them by the Petitioner before they left Mexico. Petitioner testified that once the two-weeks had passed, Respondent refused to return the Children to Mexico and told her she would never see her Children again. Petitioner testified that she contacted the FBI and the Mexican Consulate in Salt Lake City, Utah in an effort to have her Children returned. On August 2, 2012, Petitioner filed with the Secretary of Foreign Ministry in Guanajuanto, Mexico, a request for the return of the Children, claiming they had been wrongfully retained in Utah. Petitioner testified that she did not know the address where the Children were residing and was unable to find their location until shortly before the Verified Complaint was filed in this case on October 29, 2013. Since July of 2012, the Children remained in the United States, residing at all times at the same address in Utah with Respondent. Respondent testified that he has made no effort to conceal the Children or hide their whereabouts.

ABTO was now 12 years old and lived in the United States for 9 of her 12 years, except for the short period she lived in Mexico with her mother prior to 2009. MZTO was now 11 years old and has lived in the United States for 8 of her 11 years, also with the exception of the short period in Mexico prior to 2009. The Children were both fluent in English and are well acclimated to living in the United States. At the end of the summer of 2012, the Children were enrolled in public schools in Sandy, Utah, where they participated for a full school year. They were now in their second year since returning to the United States. Both Children are doing well in school. The Children each had friends at school and in their current neighborhood and were well integrated in their current family, school, neighborhood and community. Respondent's sister lived next to Respondent and the Children like spending time with her and their cousin. They also associated with other members of Respondent's extended family who lived in the State of Utah. Respondent resided at the same address for the past three years. Respondent and the Children lived in a mobile home trailer with Respondent's girlfriend and his girlfriend's two daughters. Although the home only had two bedrooms, the Children testified that the bedrooms were large and they had enough room for their things. They also testified that they have a good relationship with the Respondent's girlfriend and her children. They did not express concern or complaints about their living arrangements in Sandy, Utah. Respondent, his girlfriend, her two daughters, and the Children lived as a close, loving and mutually supportive family.

Respondent testified that the Petitioner agreed that the Children could remain with him in Utah. The Children testified that after they arrived in Utah, Respondent told them that Petitioner had agreed that they could remain in Utah until they chose to return to Mexico. Sometime after the controversy arose, Respondent put Petitioner on the speakerphone with Respondent and the Children. Respondent told Petitioner in that conversation, in the presence of the Children, that it was not up to him or Petitioner, but that it was up to the Children where they lived. Both Children said that they wanted to remain in Utah with Respondent, to which Petitioner responded that would be fine. Respondent told Petitioner and the Children that if the Children wanted to go to Mexico, he would pay for their tickets to return. Respondent repeated his statement in court that he not only would allow, but would pay for the Children to return to Mexico whenever it is their wish to do so.

The court observed the Children and their demeanor in chambers. Through the course of the interview, it became clear that they strongly desired to remain in Utah with their father. They expressed an emotional and strong objection to being required to return to their mother in Mexico. They expressed their view that they would not feel safe living in the neighborhood where Petitioner's home was located. They also expressed they would not feel comfortable living in the home with their mother and her boyfriend. If there were to be a visit, they wanted another adult to accompany them. The court found the Children to be mature for their ages and capable of formulating their own ideas and feelings about where they want to live. Based on the court's observations, it found that the Children had attained an age and degree of maturity at which it is appropriate to take into account their views. It found that Children had a strong desire to stay with their father in Utah and to not be forced to return to Mexico. More than one year had elapsed between the date since Petitioner alleged the Children were wrongfully retained by Respondent in the United States and the date Petitioner commenced these proceedings. The Children were now settled in their new environment with Respondent in Utah, having become so settled in Utah that forcing them to return to Mexico against their wishes would be against the Children's best interest.



Petitioner demonstrated that the Children were habitual residents of Leon, Mexico before coming to the United States in June 2012 and that under Mexican law petitioner had the right as a parent to custody of the Children. The evidence was undisputed that the Children came to Utah at the end of June 2012, with the permission and consent of Petitioner. Their removal to Utah was not wrongful. Petitioner contended that after the two-week visit, to which she agreed, Respondent wrongfully retained the Children in Utah. Petitioner contended that she demanded return of the Children, but Respondent refused, telling her she would never see her Children again. Respondent testified that it was understood when the Children came to Utah that they would remain indefinitely in Utah, that after they were here Petitioner agreed to their remaining and that she changed her mind only later. The evidence was inconclusive on this issue. Petitioner's claim that she did not know the Children's location lacked credibility. Because Petitioner had the burden of proof on this issue, and the evidence was inconclusive as to whether there was agreement for the Children to remain in Utah, the court found that Petitioner has failed to prove that the retention of the Children in Utah was wrongful.


The Court observed that the Convention requires that a child shall be returned to the state from which he originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "well settled" in her new environment. Bernal v. Gonzalez, 923 F.Supp.2d 907, 926 (2012).

n determining whether a child is settled within the meaning of Article 12, a court considers a number of factors that bear on whether the child has "significant connections to the new country." 51 Fed.Reg. at 10509. These factors include: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. The most important factor is the length and stability of the child's residence in the new environment. In Re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir2009). ABTO and MZTO resided in Utah with Respondent for just over one (1) year. Under Second Circuit precedent, which had been followed in this district, equitable tolling does not apply even where a parent acts to conceal the whereabouts of a child. See Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012). Moreover, even were equitable tolling to apply, the evidence in the case did not support that Respondent acted to conceal the Children. The evidence strongly supports that both ABTO and MZTO were well-settled as that term is used in the Hague Convention. Each of the six factors to be considered by the court weighed heavily in favor of the Respondent, which supported a conclusion that the Children had significant connections to Utah. The court found that it would be disruptive and traumatic to remove them from the family they now accepted and from a school which they enjoyed and at which they were thriving. The well-settled exception was satisfied and the court found under this exception, that even were the Children wrongfully removed, they should remain in Utah.




The Court also observed that the Hague Convention provides that "[t]he judicial or administrative authority [considering a petition] may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13. ABTO was twelve years old and MZTO was eleven. Both children were interviewed in chambers with counsel and other court personnel present. The Children demonstrated by their behavior and responses that they understood the circumstances and understood the gravity of the decision to be made. ABTO and MZTO each expressed a desire to remain in Utah. They expressed reservations about returning to Mexico. The views they expressed were sincere and strongly felt. The strong preference to remain in Utah expressed by each of them was consistent with their own description of what their lives were like in Utah compared to their lives in Mexico. Both ABTO and MZTO expressed goals for the future that assumed they would remain here. They unequivocally expressed their love for their "step mother" and their family association. They did not express similar feelings for family or relatives in Mexico. They found living in a two-bedroom mobile home preferable to living in a four-story house in Mexico. They strongly preferred school here. The court found that they had the level of maturity to express meaningful and well-considered opinions about their own future and preference for remaining in the United States. The court was influenced by the recommendation and persuasive argument of the Guardian Ad Litem that the Children's interest was best served by remaining in Utah. He met with the Children, considered their circumstances and had no interest other than their best interest in making that recommendation. The court found that the evidence strongly supported that it was in the best interest of each of ABTO and MZTO to remain in Utah and the United States.