Mauvis v Herisse, --- F.3d ----, 2014 WL 5659412 (C.A.1 (Mass.) [Canada] [Habitual Residence] [Grave Risk of Harm] [Petition Granted]

In Mauvis v Herisse, --- F.3d ----, 2014 WL 5659412 (C.A.1 (Mass.) the mother and father were both citizens of Haiti. The parties had two female children: M.M. was born in France in December 2005, and was now nearly nine years old; and R.M. was born in the United States in November 2009, and was approximately five years old. The father also had three other children, including twins-B.M. (male) and S.M. (female), who were now between nine and ten years old-from a previous relationship.   In January 2010, less than two months after R.M.'s birth, a catastrophic earthquake devastated the parties' community in Haiti. Following the earthquake, in February 2010, the father and M.M. moved to Quebec, Canada, where members of the father's family lived. The mother testified that she asked the father to bring M.M. to Massachusetts, but he refused and urged her to join him in Canada instead. She further testified that he threatened to harm or kill M .M. if she refused to join him, so she reluctantly took R.M. and moved to Canada in March 2010. The father denied the allegations that he threatened any physical harm.

In July 2010, the parents moved into their own apartment, along with
their two daughters and the father's twin children. In January 2011, the mother
moved out, taking M.M. and R.M. with her, and leaving behind the father and his
older twins.  In February or March 2012, the father prevailed upon the
mother to allow him to rejoin her, and he and his other children moved into her
apartment. The parties lived together for some time thereafter.   In the fall of 2012, R.M. began to exhibit health problems, including frequent nosebleeds and weight loss. The mother decided that R.M., as a U.S. citizen, should return to the United States to receive medical care. For that reason, the father and mother agreed that the mother's aunt could bring R.M. to the United States for medical care; the parties' written agreement provided that R.M. would be returned to Canada around September 20, 2013. In the fall of 2013, R.M. was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia, for which she was prescribed an iron supplement.    R.M. was not returned to Canada as agreed. Instead, on September 13, 2013, the mother left Canada with M.M. and traveled to her aunt's home in Massachusetts, where the mother and the two children remained through oral argument in this case.


 On November, 26, 2013, the father filed a petition in the United States
District Court for the District of Massachusetts, seeking a court order for the
return of M.M. and R.M. to Canada.   In support of that determination, the district court made several findings of fact and conclusions of law. Among those facts, the district court found that the parties' actions demonstrated that they "both were content" for the children to live in Canada for at least two years immediately prior to the children's removal to Massachusetts. The court found that even after the mother stopped living with the father, she chose to remain in Canada in her own household with the children.
During this time, the children led "settled" and "acclimatized" lives in Canada,
where they attended school and participated in social activities. The court thus
concluded that Canada was the children's habitual country of residence at the time
of their removal, and they were wrongfully removed or retained for purposes of the
Hague Convention. The district court further found that returning the children to Canada would not involve a grave risk of physical or psychological harm. The court noted that the mother admitted that the father has never harmed or attempted to harm M.M. or R.M. It further found it "telling" that even after the mother moved out, she took no steps to prevent the father from having contact with the children. Therefore,
the court granted the father's petition for the return of M.M. and R.M. to Canada.

The First Circuit affirmed. It reviewed the "district court's factual findings for clear error while reviewing its interpretation and application of the Hague Convention de novo. The First Circuit observed that although the Convention itself does not define the term "habitual residence," its inquiry into this question begins with the parents' shared intent or settled purpose regarding their child's residence. As a secondary factor, evidence of a child's acclimatization to his or her place of residence may also be relevant.  The Court pointed out that when reviewing a district court's findings as to habitual residence, "we defer to the court's findings of intent absent clear error, but we review the ultimate determination of habitual residence-a mixed question of fact and law-de novo."  The Court noted that where the children in question are very young, “we focus on the shared intent or settled purpose of the parents, rather than the children, because young children lack both the material and psychological means to decide where they will reside.  It looks specifically to the latest moment of the parents' shared intent, as the wishes of one parent alone are not sufficient to change a child's habitual residence.  In a situation like this, in which the parties have lived in two or more countries, the district court is required to "distinguish 'between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration.

  In support of her position, the mother argued that the father only left Haiti
after a catastrophic earthquake forced him to seek refugee status in Canada. She
maintained that she was coerced to move to Canada, and that she never applied for
asylum or status as a permanent resident there. The mother alleged that the father forced her to leave Boston and bring R.M. to join him and M.M. in Canada by means of threats. She alleged that he said that if she did not come to Canada, he would buy rat poison and use it to first kill M.M., and then himself.  The father denied the mother's claims, and the district court did not affirmatively credit her allegations. The court found that although the mother only "reluctantly" took R.M. to Canada in March 2010, she then proceeded to live there with the father and his children for approximately ten months. In January 2011, the mother, R.M., and M.M. moved out, first staying with relatives but then moving to a separate apartment in Montreal. In February or March 2012, the mother agreed to allow the father and his other children to move into her apartment. The court further found that "[i]t is clear that the children lived with their mother in an apartment in Montreal for about two years prior to the events that gave rise to the present petition." The court found relevant the undisputed fact that even after the mother stopped living with the father, "she established her own household with the children in Montreal." Thus, the court found that the mother's actions showed that she chose to remain in Canada of her own volition, and the fact that "she subsequently had a change of heart and decided that the children would be better off living elsewhere is of no moment, as any such intent was not a shared one with [ the father]." For those reasons, the district court concluded that although the parents originally lacked a shared intent for the children to live in Canada when the mother first arrived in March 2010, the parties later formed such an intent at some point during the intervening three-and-a-half years prior to the children's removal and retention in September 2013. The court found that for at least two years during this period, and possibly longer, both parents were "content" to have the children live in Canada. On the record the First Circuit could not say that these findings were clearly erroneous.

The First Circuit found that the overwhelming weight of the evidence supported the district court's conclusion that "[f]or approximately two years, the children lived in a settled, 'acclimatized' way in Canada." The mother  failed to demonstrate that the factual findings were clearly erroneous. The record did not support a conclusion
that the children were acclimatized to any country other than Canada. Having found
no clear error on this issue, it upheld the district court's factual determination
that M.M. and R.M. were acclimatized to life in Canada.    Given the lack of clear error in the district court's factual findings on the parents' shared intent and on the children's acclimatization, both of these factors supported the district court's ultimate determination that Canada was the children's country of habitual residence.

The mother alleged that the father repeatedly raped her, including in the  presence of the couple's children. According to the mother, this sexual abuse began while the parties lived together in Haiti in 2007 and continued through 2009, and it resumed when they lived together in Canada, beginning in July 2010 and continuing through her most recent rape on September 9, 2013. The mother alleged that one of the father's twin children, B .M., exhibited sexually aggressive behavior toward his half-sister, M .M.  In response to one incident the father whipped B.M. with a belt. Shortly thereafter, after another incident of sexually inappropriate behavior by B.M. toward M.M., the father allegedly told the mother that the behavior was not serious. The mother also alleged that, while the family was living together in Canada in May 2010, she found B.M. and M.M. in the living room with their pants and underwear around their ankles. Once again, the father whipped B.M. with a belt as punishment.  The mother argued that in addition to potential physical and sexual harm, M.M. and R.M. would be subjected to corresponding psychological harm if returned to Canada. At trial, the mother offered her own testimony as well as that of her aunt. She also offered the expert testimony of Dr. Eli Newberger, a Massachusetts pediatrician. who offered his professional opinion that the children would be subject to a grave risk of physical or psychological harm if returned to Canada, on the basis of the mother's assertions of past abuse. The "nature and scope" of Dr. Newberger's work regarding the case involved reviewing the children's medical records at Boston Medical Center, and  a visit to his home office, where he interviewed the mother, her aunt, and both children.

  The father denied the mother's allegations regarding any sexual assault or rape
of her, stating that he never abused her sexually and denying that the parties 
ever had sexual relations in front of the children. He further denied the allegations of sexual abuse of M.M. by his twins.  He emphasized that the mother admitted that he never physically harmed M.M. or R.M. The father maintained that, during the parties' separation in Canada, he continued to visit with the children regularly-generally every weekend (from Friday after school until Sunday night), but also occasionally during the school week. He noted that the mother never contacted the police regarding her claims of sexual abuse, nor did she ever seek protection or a restraining order from the Canadian courts against him. He asserted that she only filed for a restraining order in the United States on September 17, 2013, after she had relocated to Massachusetts with the children.

The district court noted the mother's testimony that the father "frequently acted toward her in a sexually abusive manner," and that "he insisted on sexual activity at times and under circumstances when the children were or could have been exposed to it." However, the district court found that this "testimony was general and vague," and that it was "difficult to draw any reliable conclusions about how frequently such conduct occurred or how significant any impact on the children might have been. " The court observed that the mother "admits that [the father] has never harmed or attempted to harm [M.M.] or [R.M.]." Furthermore, the court found it "telling" that "even after moving out in January 2011, [the mother] took no steps to prevent [the father] from having contact with their children." The Court found Dr. Newberger's expert testimony "unconvincing," because it was not "based on an in-depth investigation, but rather on some office interviews and a review of hospital records that themselves did not disclose any grave medical or emotional issue."Accordingly, the court found that "[t]he evidence fell well short of supporting a finding of a grave risk of psychological harm." The First Circuit found no clear error among the foregoing findings of fact. 

The district court did not fully credit the mother's testimony, which it found to be "general and vague." The father denied the mother's allegations, and the mother offered scant evidence to corroborate her testimony.  As to potential sexual abuse of M.M. or R.M. by their half-brother, B.M., who was still a young child, the record did not establish that B.M. continued to exhibit sexually aggressive or inappropriate behavior, or that the father and his new wife were unwilling or unable to prevent any such incidents in the future. Thus, on the supported factual findings made by the district court, it could not say that there is a "grave risk" that B.M. would behave in sexually aggressive or inappropriate ways toward either M.M. or R.M. if they are returned to Canada.

The First Circuit found that the case involved competing "he said, she said" testimony from both parties, with little independent evidence corroborating the mother's testimony, and no clear acceptance by the district court of the mother's narrative over the father's. The district court thus effectively found that the mother did not bear her burden of proof in establishing that returning the children to Canada
would subject them to a "grave risk" of "physical or psychological harm." There was 
no error in that determination.

Marquez v Castillo, 2014 WL 5782812 (M.D.Fla.) [Mexico] [Federal & State Judicial Remedies]

In Marquez v Castillo, 2014 WL 5782812 (M.D.Fla.)  Petitioner commenced an action alleging that his wife, Respondent, Ayliem Orihuela Castillo, wrongfully removed their minor child, J.V.O., age three, from their residence in Mexico, and seeking return of the child.  According to the Petition the Petitioner and Respondent married in Cuba on or about April 6, 2012. Immediately after the marriage, Petitioner began the process of obtaining permission for  Respondent and J.V.O. to move to Mexico. Respondent and J.V.O. moved to Mexico to live with Petitioner together as a family on or about December 5, 2012.  Both Petitioner and Respondent intended for the family to live together in Mexico  permanently. Respondent sold her home in Cuba and requested that Petitioner file the appropriate papers for her to bring her other two children to also live in Mexico. Petitioner,  Respondent, and J.V.O. lived together in Petitioner's family home until October 2013.   On October 5, 2013, Respondent left Mexico with J.V.O. without warning, notice or permission from Petitioner. Respondent sent a text message to Petitioner indicating that she was on a plane to Cuba. She later sent another text message to Petitioner indicating that she was in Houston, Texas. Several days later, the parties began communicating by email. Eventually, Respondent provided a phone number and stated that she was living in Tampa, Florida, with her uncle.

Respondent would not provide Petitioner with the address of her residence in the United  States. From January 2014 through September 2014, Petitioner had not seen, spoken to, or  received substantive information regarding J.V.O.   Petitioner was the Child's natural father. He was born in Mexico,  lived in Mexico for his  entire life, and was a Mexican citizen. Respondent was the Child's natural mother. Respondent was 
born in Cuba and was a Cuban citizen. Respondent lived in Cuba until she married Petitioner  and established domicile in Mexico. Her current address was believed to be in Tampa, Florida, and law enforcement provided an address where the U.S. Marshals Service could serve her with  process. Respondent had immediate and extended family in Cuba, including her parents and two minor children-one of whom lived with his father and the other lived with a grandparent.  J.V.O. spent ten months in Mexico living with Petitioner and Respondent prior to arriving in  the United States. 

In light of the evidence in the Amended Verified Petition, it appeared to the court that Mexico was the likely habitual country of residence of J.V.O. The district court observed that ICARA authorizes a court to "take or cause to  be taken measures under Federal or State law, as appropriate, to protect the well-being of the  child involved or to prevent the child's further removal or concealment before the final  disposition of the petition."42 U.S.C. § 11604(a). Such relief is analogous to a temporary restraining order.  Therefore, a  petitioner must show that: 1. There is a substantial likelihood that the moving party will prevail on the  merits;  2. The moving party will suffer irreparable injury if the injunction is not  granted;  3. The threatened injury to the moving party outweighs the threatened harm the  proposed injunction may cause the opposing party; and  4. The injunction, if issued, would not be adverse to the public interest.  The district court found that based on the allegations in the Amended Verified Petition all of these elements were present and that a provisional remedy was appropriate.

The court directed that the United States Marshals to serve the Respondent, with  the Petition, Summons, and  Order; seize and impound any and all travel documents of both the Respondent and  J.V.O, including but not limited to any and all passports, birth certificates,  travel visas, Green Cards, social security cards or similar documents that may  be used to secure duplicate passports; and deliver such travel documents to the Clerk of the Court. In the alternative to delivering the travel documents to the U.S. Marshal the Respondent could appear before the Court with her travel  documents to show cause why the  Court should not seize and impound the travel  documents. The court directed that Respondent may not remove J.V.O., nor allow any other person to remove J.V.O.  from the jurisdiction of the Middle District of Florida pending a Final  Evidentiary Hearing on Petitioner's Petition for Return of J.V.O. to Mexico or  until further order of the Court. The court set the matter down for a hearing and directed that Petitioner may appear at the Final Evidentiary  Hearing via Contemporaneous Transmission from Remote Location.

Smedley v Smedley, --- F.3d ----, 2014 WL 5647426 (C.A.4 (N.C.) [Germany] [Federal & State Judicial Remedies] [Comity] [Petition Granted]

In Smedley v Smedley, --- F.3d ----, 2014 WL 5647426 (C.A.4 (N.C.)) the Smedleys married in 2000 in Germany, where Mark was stationed as a member of the 
United States Army. Their children, A.H.S. and G.A.S., were born in 2000 and 2005, respectively. Except for approximately one year spent in Tennessee, the family lived in Bamberg, Germany, until August 2010, when Mark was transferred to North Carolina. He bought a house in Swansboro and brought the family with him. Daniela maintained that she they had discussed divorce and she told Mark she was returning to Germany with the children  permanently in May 2011, and he consented. Daniela and the children left on July 13th of that year. Because Daniela had agreed to take four weeks to reconsider her decision, Mark bought them round-trip tickets with a return date of August 11, 2011. Mark told Daniela that if she chose to stay in Germany, he would try to relocate there to be close to the children. In late July 2011, Daniela informed Mark via phone of her decision to remain in Germany.  Mark denied that he and Daniela ever discussed divorce and claimed that  the trip to Germany was to be nothing more than a one-month vacation. He said Daniela's decision to stay in Germany came as a complete surprise: he learned of it only after the late July phone conversation, about two weeks after she had already left North Carolina. She had not told him of her intent in May, and he had not  consented to a permanent move.

   On September 2, 2011, Mark obtained a temporary custody order from the District Court of  Onslow County, where Swansboro is located. In October, he filed a Hague petition in Germany  seeking the children's return.  The District Court of Bamberg denied Mark's Hague petition. The Court credit its denial in part on the 
findings of a court-appointed family advocate that Mark had physically abused A.H.S. and found that returning the children to North Carolina would expose them to a serious risk of harm, one of the Article 13 defenses.  Mark appealed the District Court of Bamberg's decision to the Bamberg Higher Regional Court. Daniela, A.H.S., the family advocate, and a representative from the Office of  Children Protection Services of Bamberg testified in person. Mark, who was unable to attend because his passport was expired, testified through his lawyer. The court agreed with Daniela that Mark had consented to the move to Germany, finding her testimony more credible than Mark's. As consent is an Article 13 defense, the court held that Daniela need not return the children without determining whether North  Carolina or Germany was their habitual residence.

Mark and Daniela obtained a divorce under German law in May 2012, and the children lived  with Daniela in Bamberg until August 2013. Daniela agreed in June
2013 to let the children visit Mark because they wanted a vacation and had not seen their father in two years. On August 6th, Mark picked the children up at Ramstein Air Base in Germany. He gave Daniela a notarized document stating that he would return the children on  or about August 26, 2013, with the exact date to depend on the availability of military flights.  Expressing concerns over their dental care and schooling, Mark kept the children in North Carolina and informed Daniela of his decision via Facebook on August 27, 2013. He enrolled the children in the Onslow County school system.

     Daniela filed a Hague petition in the U.S. District Court on April 7, 2014. The district court, ruling that the Bamberg Higher Regional Court's finding on consent  was not "wholly unsupported," accorded comity to that decision. First, the district court concluded that the German court's failure to determine the children's habitual residence was not fundamentally unreasonable because the decision "rested on what  is akin to an affirmative defense in Article 13(a)": Mark's consent to the move. Second, the district court reasoned that, based on the German court's credibility determinations, the testimony supported the contention "that Mark had agreed to the trip with the knowledge that Daniela and the children might not return. That the German court did not credit Mark's version of the story does not render its Article 13(a) determination ...fundamentally unreasonable." Third, the district court rejected Mark's argument that, because he did not formally manifest his non-consent, he did not consent to Daniela's decision, by noting that "[c]onsent ... 'may be evinced by the [parent's] statements or conduct, which can  be rather informal.' " (quoting  Nicolson v. Pappalardo,  605 F.3d 100, 105 (1st Cir.2010)).

      Having found that Daniela did not wrongfully remove the children to Germany and reasoning that they had acclimatized to life in Germany between July 2011 and August 2013, the district court found that Germany was the children's habitual residence at the time of their visit to North Carolina.  Because Mark did not assert any defense, the court allowed Daniela's  petition and awarded her physical custody for the purpose of returning the children to Germany. This appeal followed.

The Fourth Circuit held that the  district court properly accorded comity to the German  court's ruling that Daniela did not unlawfully remove the children to Germany. The court noted that, though foreign judgments are not entitled to full faith and credit, "comity is at the heart of the Hague Convention." Miller, 240 F.3d at 400 (quoting  Diorinou, 237 F.3d at 142).  Accordingly, "American courts will normally accord considerable deference to foreign adjudications as a matter of comity." It noted that the Ninth Circuit has provided a useful framework for extending comity in Hague cases: "[W]e may properly decline to extend comity to the [foreign] court's determination if it clearly misinterprets the Hague Convention,  contravenes the Convention's fundamental premises or objectives, or fails to meet a minimum  standard of reasonableness." Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir.2009). The Fourth Circuit held that the  district court properly extended comity because the German court's decision neither clearly misinterpreted the Hague Convention nor failed to meet a minimum standard of reasonableness. It noted that the the Second Circuit held that the proper standard of review in cases such as this one is de novo. See  Diorinou, 237 F.3d at 139-40. 

           The Fourth Circuit rejected Marks argument that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing the defense of  consent. He cited no authority for the  proposition that a court must decide habitual residence before addressing defenses. Nor is there anything in the text of the Hague Convention that requires a court to address Article 3  first. The Hague Convention does not set out a roadmap, only principles. Here the habitual-residence question was not dispositive or even helpful, as the court's conclusion did not turn on habitual residence or custodial rights. Even if the German  court had assumed that the children were habitual residents of North Carolina when Daniela took them to Germany, the finding that Mark consented to that move would have still provided her with an affirmative defense to wrongful removal.

The Fourth Circuit next rejected Mark's arguments that the German court's decision did not meet a minimum  standard of reasonableness because the court unreasonably relied on contradictory evidence in making its credibility determination. It noted that the German court found credible Daniela's testimony that Mark knew she went to Germany with the intent of staying there with the children, and that Mark consented to that move in the event she did not change her mind. Though the court 
made such a determination with Mark present only through his lawyer, the decision was at  least minimally reasonable. The German court found that Mark's testimony through his lawyer was not  credible.  Because Daniela's testimony was detailed and corroborated, and the evidence did not show that Mark's consent was for only temporary travel, the German court's decision was at least  minimally reasonable.
Accordingly, for the foregoing reasons, the judgment of district court was affirmed.

Alcala v Hernandez, 2014 WL 5506739 (D.S.C.) [Mexico] [Provisional Remedies] [Temporary Restraining Order] [Judicial Notice]

         In Alcala v Hernandez, 2014 WL 5506739 (D.S.C.) Petitioner Father sought  the issuance of a restraining order preventing Respondent  Claudia Garcia Hernandez (Mother) from leaving the jurisdiction along with a Rule to Show Cause requiring Mother to appear at a hearing to show cause why the minor children should  not be returned to Mexico;  the issuance of a warrant for the physical custody of the  children; and 3) an order scheduling an expedited hearing on the merits of Father's Verified Petition. In his Motion to Seal, Petitioner asked the court to seal any warrant for  physical custody of the minor children issued. I n his Motion to take Judicial Notice of Mexican Law he requested the court take judicial notice of Mexican law as reflected in Petitioner's expert affidavit and Article 15 Declaration made by Maria Cristina Oropeza Zorrilla, Director of  Family Law for the Mexican Central Authority. 

         The evidence presented by Father at the ex parte hearing indicated that on June 17, 2013, Respondent Claudia Garcia Hernandez, who was the mother of F.C.G., a ten-year old Mexican national, and A.C.G., a two-year old Mexican national wrongfully removed the Children, against Father's express wishes, from their familial home in Mexico and brought the children into the United States illegally and without prior notice. The  evidence presented by Father showed that he was listed on the Children's birth certificates, and had sufficient parental custody rights under the Hague Convention such that Mother's removal of the Children from Mexico without his consent wrongfully deprived him of  his parental rights that he was exercising just prior to the removal. Father indicated to the  Court that Mother has, in violation of his expressed direction to the contrary, brought the  Children into the United States illegally, knowing that Father instead wished for the family to stay in Mexico. After their alleged abduction, Father has alleged that it took more than a year to locate the Children who were being hidden in Florence, South Carolina by Mother, even with the aid of the State Department and law enforcement. Father has alleged that Mother is in Florence, South Carolina with the Children's grandmother, Lorenza Hernandez Perez, and their aunt,  Andrea Garcia Hernandez.

In light of Father's contentions in the Verified Petition, the Court  determined that it was necessary to hold a preliminary injunction hearing to determine whether the temporary  restraining order should remain in effect pending a full hearing on the merits. The court declined to consolidate the preliminary injunction hearing into the final merits hearing as  requested by the Father. The Court anticipated that the Mother would require a reasonable amount of time to prepare for the hearing and retain counsel if desired.

        The Court observed that to further the  intent of the Hague Convention, courts are called on to preserve the status quo-the return of the child to his home country for further proceedings. See  Miller v. Miller, 240 F.3d 392, 398 (4th Cir.2001). To accomplish the goal of maintaining the status quo, the Court is empowered to take appropriate measures "to prevent ... prejudice to interested  parties by taking or causing to be taken provisional measures." Hague Convention, art. 7(b). These "provisional measures" are available to the court exercising jurisdiction over the action  just as if it were the appropriate court under State law- the ICARA requires the court  exercising jurisdiction to ensure that the applicable requirements of State law are satisfied. 22  U.S.C. §9004(b). Once those requirements are met, the court is permitted to implement all necessary procedures "to prevent the child's further removal or concealment before the final disposition of the petition."Id. §9004(a).   Federal courts across the country have used the authority granted to them by § 9004, formerly cited as 42 U.S.C. § 11604, to take provisional measures to ensure that abducted  children are not removed from their jurisdiction prior to completion of Hague proceedings. Father's request for relief was heard on an ex parte basis under Federal Rule of Civil Procedure 65(b)(1). Based on Father's allegations and the findings the Court found that relief without notice to Mother was necessary to avoid immediate and irreparable injury, loss, and/or damage if Mother were to be given notice of the proceedings prior to the Order.   The Court found that Father's request for provisional measures authorized by 22 U.S.C.§ 9004  are "analogous to a temporary restraining order. A plaintiff seeking a temporary restraining order or preliminary injunction must establish all four of the following elements: 1) he is likely to succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of temporary or preliminary relief; 3) the balance of equities tips in his favor; and 4) an injunction or restraining order is in the public interest.  Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374, 555 U.S. 7, 20 (2008).  A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim.  Similarly, a plaintiff must make a clear showing that he is likely to be irreparably harmed absent injunctive relief.  Only then may the court consider whether the balance of equities tips in the plaintiff's favor. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. 


         After analyzing these factors the Court found that provisional measures were authorized and necessary in this case.   The Court found that Petitioner Father, at this stage in the proceedings and based on the Verified Petition and exhibits, had clearly demonstrated that he was likely to be successful on the merits. Based on the evidence, the Court found that ex parte emergency relief was necessary to prevent irreparable injury. The court observed that allowing the Mother to flee with the  Children was contrary to the very purpose of the Hague Convention and ICARA, and would result in irreparable harm. See  In re McCullough, 4 F.Supp.2d at 416.  Given that Mother had already allegedly wrongfully removed the Children from Mexico, there existed a risk that Mother may leave this jurisdiction with the Children. Father had, therefore, made a clear showing of the  likelihood of irreparable harm if temporary relief was not granted. The Court found hat any threatened harm to Mother was minimal as compared to the  probability of irreparable harm to Father. Finally, the court found that, the public policy is not hindered, but is instead furthered, by the ordering of these provisional measures.    Therefore, the Court found that the necessary elements of Rule 65, as articulated in Winter,  had been met, and the Court granted Father's request for a Temporary Restraining Order  prohibiting the removal of the Children from the Court's jurisdiction.

Petitioner asked the Court to issue a warrant for physical custody pursuant to S.C.Code Ann. §63-15-370, to have his minor children placed in protective custody with the Florence County Department of  Social Services ("DSS"). However, before ordering that a child be taken from someone with physical custody of the child, the federal courts must ensure that the requirements of state law are satisfied. 22 U.S.C. § 9004(b).  South Carolina Code  63-15-370, which is part of the Uniform Child Custody Jurisdiction and Enforcement Act, provides, in part:  (A) Upon the filing of a petition seeking enforcement of a child custody  determination, the petitioner may file a verified application for the issuance  of a warrant to take physical custody of the child if the child is immediately  likely to suffer serious physical harm or be removed from this State. According to the Verified Petition, the Mother had family in Florence County, the  Grandmother and Aunt of the minor children, who reportedly owned a local business. Petitioner  alleged the Children had been physically located at addresses in Florence and Darlington, South Carolina beginning some period following their alleged abduction on June 17, 2013. More than one year had elapsed since the minor children were removed from Mexico and it appeared the Mother and children may have been residing in Florence County for at least one year. As a result, it was unclear whether the minor children may  be settled in their new environment as  contemplated by Article 12 of the Hague Convention. The Court had reservations as to the propriety of issuing a physical custody warrant for the Children at this juncture and denied Petitioner's request to issue a warrant under the  Uniform Child Custody Jurisdiction and Enforcement Act, S.C.Code Ann.§ 63-15-370.

The district court observed that the Hague Convention allows courts to "take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of law." Hague Convention, art. 14; 22 U.S.C.§s 9005. Courts around the country have used this authority to take judicial notice of foreign States' laws, especially when determining whether the petitioning parent has "rights of custody" as  required by the Hague Convention. For that reason, the Court granted petitioner's Motion to  take Judicial Notice of Mexican Law for purposes of granting the Temporary Restraining Order. The Court declined to issue the custody warrant. Therefore, Petitioner's motion to seal was denied as moot.

           In its order the court ordered the mother to bring the Children and any and 
all passports, identification, and travel documents for the Children to the hearing and that if she did not appear as directed or if she removed the children from the jursdiction of the court a warrent for her arrest shall issue; prohibited her  from removing the Children from the  jurisdiction of the Court pending the preliminary injunction hearing on the Verified Petition, and directed that no person acting in concert or participating with Respondent Mother (including the Children's grandmother, Lorenza Hernandez Perez, and their aunt, Andrea Garcia Hernandez) shall take any action to remove the Children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition.

Application of Inna Kharlamova v. Roach, 2014 WL 4983837, (WD, Washington) [Canada] [Habitual Residence][Petition granted]

In Application of Inna Kharlamova v. Roach, 2014 WL 4983837, (WD, Washington)  Inna Kharlamova's petition for return of her two children to Canada was granted. The Petitioner and Respondent weret he parents of two daughter. Both children were born in Toronto, Canada. Petitioner was a Russian citizen who moved to Canada, from Russia, in 2001 and  obtained permanent resident status in Canada. Respondent Peter Roach was an American citizen. 

The Petitioner and Respondent met in Toronto 2001. After the birth of the children Respondent reconciled with his wife in 2006. The two children lived in Canada continuously until 2009. The Respondent maintained contact with his two daughters by visiting with them in Canada fairly regularly and provided financial assistance to the Petitioner for rent, food, various expenses including car insurance and for the girls.

On July 16, 2008 a Final Uncontested Order was entered in the Ontario Court of Justice which gave “final” custody of the two girls to Inna Sexton (Kharlamova) and permitted the Respondent to have access to each child. In addition, the Order permitted the Petitioner “to travel abroad without the consent of the Respondent father and was allowed to obtain, apply and renew passports for each child mentioned above without consent of the Respondent father.”  By letter dated June 22, 2008 the Respondent wrote to the Ontario Court of Justice and stated the following: “The issue of custody arose because of intended travel to Russia. As explained to me an extended stay in Russia required my two children to have Russian documentation, otherwise they would be provided tourist visas and would not be permitted to stay in Russia beyond 30 days. I am agreeing to grant Inna Sexton (Kharlamova) sole custody of the children to prevent any issues with travel, documentation or Russian laws until the children are back in Canada, or until Inna and I make further custody/family arrangements. Inna and I have agreed that I would have unrestricted access and visitation rights to the children.

According to the Petitioner, she obtained the Order from the Ontario Court of Justice to facilitate her plans to go to Russia to see her parents and her son, whom she had not seen since she moved to Canada in 2001. At the time of the trial her son was 17 years old and still resided in Russia. The Petitioner and her two daughters first went to Russia in August 2009 and returned to Canada until early October 2010. While her initial plan was to stay for several months, she extended her stay at her mother's request and because she wanted her daughters to learn more about Russia. The Respondent testified that he thought the Petitioner and the girls were moving to Russia and that Russia would be their home. His conclusion was based on the fact (1) that the Petitioner and the girls moved to Russia and (2) that nothing was left in her apartment as everything had been shipped. Prior to Petitioner and the girls traveling to Russia, the Respondent flew to Canada and helped the Petitioner pack. The Respondent pointed out that the Petitioner shipped 53 boxes of used household and personal effects which had a total weight of 2,576 lbs . Petitioner also stored a number of items in a storage facility in Toronto and left her truck in Toronto as well. These stored items were moved out of the storage facility on April 1, 2011.The Respondent's conclusion that in August 2009 the Petitioner intended to make her home in Russia was not based on a conversation or agreement. 

The Petitioner and the two girls returned to Toronto in October 2010. Following her return, the Respondent flew to Canada and helped the Petitioner find a place to live. The Petitioner next went to Russia with her daughters at the end of June 2011. The Petitioner's purpose of this visit was to see her mother and son and for her daughters to become closer to their brother and grandparents. When she went to Russia this time she stored some of her belongings with a friend, including her truck. The Petitioner provided no testimony regarding how long she initially planned to stay in Russia other than to say that she ended up staying longer than she had planned. She  testified that she never intended to relocate from Canada since becoming a permanent resident there and that testimony was not contradicted. The Respondent offered no testimony regarding any agreement or understanding between him and the Petitioner regarding the reason the Petitioner and the girls returned to Russia in June 2011. The Respondent did testify that the Petitioner was very concerned about not doing anything that would result in her losing her legal resident card with Canada. 

The girls remained in Russia until April 12, 2012, when Petitioner and Respondent agreed to meet each other in Berlin, Germany. The Respondent, with permission of Petitioner, took the two girls to Washington State with him. Prior to April 12, 2012 the girls had never been in the United States and had never lived with the Respondent. The girls  remained in Washington since that time. The parties agreed that initially the reason for the girls going to the United States was due to heart-related health problems of their oldest daughter and the need for evaluation and treatment of that condition. Both parties signed a “Permission to Travel with Minors Letter”  which reflected a travel date to Seattle on April 12, 2012 and an expected date of return of May 23, 2012. The Petitioner said this was needed as she had sole custody of the girls and this document would allow the father to travel with the girls without having any problems. 

After the Respondent picked up the girls in Berlin, the Petitioner went to Egypt in pursuit of her divemaster certification. In an email exchange between the parties on April 21 and 22, 2012  the Petitioner stated that she wanted her children returned on May 27, 2012  which was the date of the return tickets, and she requested that the children been sent to Egypt, where she planned to stay for another month, and then all three would return to Russia. In response the Respondent confirmed that the children would be “coming back on the date on the tickets.”  The girls were not returned in May and the parties eventually agreed that the Respondent would keep the girls over the summer. There clearly was a disagreement between the parties as to whether it was safe for the girls to be in Egypt while the Petitioner was pursuing her divemaster certification. The Respondent felt that there was too much unrest in Egypt so as to make it unsafe for the girls to live there. The Petitioner, on the other hand, felt that Egypt had a lot to offer her girls and she wanted them there with her.  The Petitioner also testified that the Respondent wanted to keep the girls in Washington over the summer because he had such a short period of time with them and he said he would return them in the fall of 2012. 

The testimony of the parties was divergent regarding the reason why the girls were not returned in the fall of 2012. According to the Petitioner, during October 2012 she wanted to know why the Respondent had not returned the girls. The Respondent said he did not have the money to return the girls and he was also working on obtaining citizenship for the youngest daughter. The Respondent told the Petitioner that he wanted to keep the girls with him longer because he thought the youngest might have to be interviewed for citizenship. So Petitioner agreed to leave the girls in the United States while the Respondent pursued citizenship for their daughter. At the time of this decision the Petitioner was not living in Canada. The Petitioner went to Egypt in April 2012 and left Egypt late January 2013. From Egypt she returned to Russia where she remained until mid April 2013 when she returned to Toronto. The Petitioner completed her divemaster training in June 2013 while in Toronto. 

          On May 19, 2013 petitioner sent an email to the Respondent advising him she had purchased tickets for the girls and the Respondent to fly to Canada on July 30, 2013.  Before the scheduled flight the Respondent called the Petitioner and told her he could not fly the girls to Toronto on that date The Petitioner filed her application with the Central Authority in Canada on January 27, 2014. According to the Respondent, the Petitioner told him she had to return to Russia on August 13, 2013 because her husband attacked her mother in her mother's apartment in Russia. The Petitioner returned to Canada on September 10, 2013 and the Respondent had decided prior to that date that he did not want to return his daughters Petitioner. He testified that in September 2013 he told the Petitioner that he was not going to return the girls to her.   The Court concluded that the habitual residence of the two girls, prior to their retention by the Respondent, was Canada. In order to establish a habitual residence, there must be a settled mutual intention of the parents. While there was no direct testimony in this regard, the circumstances surrounding the two girls living in Toronto led to the conclusion that the parents agreed to this as the girls habitual residence. They were both born in Toronto, attended school there when old enough, received medical care and the father visited with them in Canada.

The Respondent argued that the habitual residence in Canada was abandoned in favor of Russia. The court found there was no settled, mutual intention in this regard. There was no evidence presented about the parties having any discussion as to the reason the Petitioner and the girls would be going to Russia in 2009, how long they would be there or that they had any intention of making Russia their home. A letter written by the Respondent to the Ontario Court of Justice merely discussed an “extended stay” in Russia. In addition, the Respondent was very much aware of the fact that the Petitioner did not want to do anything that would cause her to lose her resident status in Canada. The Respondent asserted that the Petitioner and the two girls intended to make Russia their home when they moved there in 2009 because they moved out of the apartment and shipped all their belongings to Russia. The Court held that moving out of a rented apartment, when planning on an extended stay in Russia, cannot lead to the conclusion, without more, that the habitual residence in Canada was going to be abandoned. While the Petitioner did ship a large number of personal items to Russia, she also stored personal property in Canada, including her vehicle. If there had been no intention to return, it was reasonable to assume that the Petitioner would have sold the vehicle rather than stored it. Finally, the Petitioner and the two girls in fact returned to Canada after an extended stay in Russia. For these reasons, the Court concluded that with regard to the 2009 trip to Russia that there was no shared mutual intent to abandon Canada as the habitual residence as there was no agreement between the parties to that effect. 

The Petitioner again moved to Russia from Canada in the end of June 2011. The only testimony regarding the purpose of this trip was from the Petitioner and that was to visit with her mother and son and to have time for her daughters to become closer to their brother and grandparent. This could only lead to the conclusion that there was no shared, mutual settled intention to abandon Canada as the girls habitual residence. Since there was no shared mutual settled intention to abandon Canada, the Court concluded that the Petitioner was away from her habitual residence for a temporary absence of long duration. 

Because there was never a shared mutual intent to abandon Canada as the habitual residence for the two girls, the Court  had to consider whether there were objective facts which pointed to that conclusion. The Court concluded that being present in Russia which permitted her mother and son to move to a larger apartment, starting the process of obtaining real property in Russia, and the permission granted the Petitioner by the Respondent to change the place of registration for the girls in Russia did not point to an intention, on the part of the Petitioner, to change her habitual residence. Rather, the steps taken by the Petitioner were her right as a Russian citizen. Nothing was presented to the Court to show that these actions could only have been taken if the Petitioner intended to reside permanently in Russia. Even marrying while in Russia did  not support the argument of abandonment as her husband, though they were separated, now resides in Canada. 

In addition, there was no evidence before the Court for it to conclude that the Petitioner abandoned Canada as the habitual residence of the girls in favor of the United States. The Court could not conclude that the evidence of acclimatization was sufficient to establish that Canada has been abandoned as the girls habitual residence due to acclimatization. In  light of the Court's direction to “be slow to infer from such contacts that an earlier habitual residence has been abandoned” the Court did not believe that the evidence was sufficient to overcome this directive. The Court concluded that returning the girls to Canada would not be tantamount to taking them “out of the family and social environment in which [their] life has developed. 

The Court concluded that the wrongful retention occurred in September 2013; that  the retention breached the rights of custody attributed to the Petitioner under the law of the habitual residence; and  the Petitioner was exercising her custody rights at the time of the retention.

Dawson v McPherson, 2014 WL 4748512 (M.D.N.C.) [United Kingdom] [Necessary Cos

In Dawson v McPherson, 2014 WL 4748512 (M.D.N.C.)) the petitioner moved pursuant to ICARA, for attorneys fees and expenses after the district court granted his petition for return of his children, C.M.S. and L.S. to the United Kingdom.

The Court's indicated that its decision to order the return of the Children to Petitioner signified that Respondent's actions were wrongful. The Court recognized that ICARA, by providing for an award of attorneys' fees and expenses after a judgment of wrongful removal or retention of a child, contemplates the use of such awards as a deterrent to violations of the Convention. In light of this purpose, and after careful review of the parties' pleadings on this issue, the Court found that Respondent failed to establish that it would be clearly inappropriate for the Court to award attorneys' fees and expenses to Petitioner in this instance. Therefore, the Court only had to determine the reasonableness of the dollar amount requested by Petitioner for fees and expenses related to the return of the Children. Petitioner requested a total of $41,938.57 in attorneys' fees and expenses and $7,795.78 for other, non-legal expenses incurred by Petitioner in securing the return of the Children.

The district court held that it is well established that the "lodestar" for obtaining a Request for method for determining reasonable attorneys' fees.  Consistent with the general acceptance of the method, federal courts have applied the lodestar approach to cases where ICARA is at issue. The lodestar figure is determined by multiplying the number of reasonable hours expended times a reasonable rate. See  Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). To determine the reasonable rate and reasonable number of hours to use in calculating reasonable attorneys' fees under the lodestar approach, the Court is guided by the twelve "Johnson " factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputations, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.  Rum Creek, 31 F.3d at 175; (citing  Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974)). These "Johnson " factors are to be considered as part of the Court's
determination of the reasonable number of hours and the reasonable rate to be used in this case. See  Grissom, 549 F.3d at 320-21. Therefore, in applying the lodestar analysis, the Court has the discretion to reduce the award requested by Petitioner.  Hensley, 461 U.S. at 437. With this standard in mind, the Court determined  whether the number of hours incurred by Petitioner's attorneys in this matter were reasonable.   To establish the number of hours reasonably expended, Petitioner had to  "submit evidence supporting the hours worked." Hensley, 461 U.S. at 433. The court indicated that number of hours should be reduced to exclude hours that are "excessive, redundant, or otherwise unnecessary" in order to reflect the number of hours that would properly be billed to the client.   Where a district court finds a duplication in the hours reported by the attorney of the party requesting attorneys' fees, the court has discretion to exclude from the calculation of attorneys' fees hours that were not "reasonably expended."  Hensley, 461 U.S. at 433. Furthermore, "[w]here the attorney's
documentation is inadequate, or the claimed hours are duplicative or excessive, the [C]ourt may reduce the award accordingly.  Neves, 637 F.Supp.2d at 340 (citing Wasniewski, 549 F.Supp.2d at 972).

The Court found that there was a lack of specificity as it related to some of the work performed by Ms. Dildine, Ms. Hawkins, or Mr. Cox. There was also, what appeared to be duplication of the work done by Ms. Dildine, Ms. Feuchs-Marker, Ms. Hawkins, and Mr. Cox. As such, it was not possible for the Court to isolate or distinguish the exact number of hours Ms. Dildine, Ms. Feuchs-Marker, or their assisting staff spent on performing necessary tasks to prepare for this case or to determine why the efforts of these four individuals, on what appears to be very similar-if not the same-activities, were necessary in this case. Therefore, the Court  reduced the number of hours reported for work done by Petitioner's North Carolina representation by 20%.

 Petitioner's Leeds Representation reported 22.75 hours preparing the December 4, 2013 Request for Return Application under the Hague Convention  and assisted in "subsequent related matters through the end of December 2013." In support of these hours worked, Petitioner filed an affidavit along with an invoice, which purported to breakdown the fees charged for the Leeds Representation. The fee breakdown, however, was not as informative as the itemized list provided by Petitioner's North Carolina Representation. The fee breakdown contained the date of services, a description of services rendered, the name of counsel performing the services, the hours worked, counsel's rate per hour, the amount of time worked, and the billed amount. While the fee breakdown was detailed, in that it told who worked on the case, for how long, and how much was billed for the services, the explanation of the actual services was not descriptive. For instance, the description for one hour, for which the client was billed L921.25, stated "Attendance-Client."   Other examples of billed for time, included descriptions such as, "Long Telephone Calls-Client," Consideration/perusal-Detailed Correspondence/ emails-TOB letter," and "Preparation/drafting-Detailed File Note."  The court pointed out that Petitioner "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. at 437. As it related to his Leeds Representation, Petitioner had failed to meet this burden. The Court was unable to decipher what tasks the Leeds Representation actually performed during the time for which they billed Petitioner based on the fee breakdown submitted by Petitioner. Therefore, it was impossible to know whether Petitioner was billed for duplicative efforts and whether the time billed for was spent on necessary tasks relevant to the action. Accordingly, the Court denied Petitioner's request for attorneys' fees for his Leeds Representation, because the Court could not determine whether any of the hours billed were reasonable in light of the factors to be considered.

   Once a reasonable number of hours has been determined, the Court must determine
a reasonable rate, "calculated according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)."This determination is fact-intensive and is best guided by what attorneys earn from paying clients for similar services in similar circumstances." Rum Creek, 31 F.3d at 175.    Both the Supreme Court and the Fourth Circuit prescribe a method of rate determination whereby the district court uses discretion influenced by "evidence of fees paid to attorneys of comparable skill in similar circumstances." Blum, 465 U.S. at 895;  Rum Creek, 31 F.3d at 175. In this instance, as to Petitioner's North Carolina Representation, the Court reviewed Ms. Dildine's Affidavit submitted by Petitioner and the Court has also reviewed the 2012 North Carolina Bar Association Economic Survey ("North Carolina Survey") outlining estimations of the hourly rates charged by attorneys and support staff. Based on this review, the Court found that a rate reduction was appropriate as to Ms. Dildine, Ms. Hawkins, and Mr. Cox. The Court found that Ms. Dildine's, Ms. Hawkins', and Mr. Cox's rates should be reduced based on this information, in order to achieve congruence with those rates charged for similar services in the North Carolina legal market. Therefore, the Court, in its discretion,  reduced the rates of Ms. Dildine to $215, Ms. Hawkins to $75, and Mr. Cox to $50. However, as to Ms. Feuchs-Marker's fee, the Court found the fee of $375 per hour was reasonable based on Ms. Feuchs-Marker's experience and the amounts billed by those with similar experience in North Carolina.

   Petitioner also requested that the Court award him $6,979.66 for non-legal expenses, for which he could provide documentation. Those amounts were attributed to (1) the cost of the round trip airline ticket for Petitioner; (2) the cost of the one-way airline tickets for the Children; (3) the cost of the change flight fee for Petitioner; (4) the cost of the private investigator hired to locate the
Children in the United States; and (5) Petitioner and the Children's lodging in the United States. The Court found these non-legal expenses to be properly documented and reasonable. Further, such expenses, which were incurred during the pendency of this action, were necessary and not inappropriate pursuant to 42 U.S.C.  11607(b)(3).See  Neves, 637 F.Supp.2d at 344 (finding that airfare, lodging, transportation, postage, and investigative expenses reasonable and necessary under ICARA). Thus, Petitioner was entitled to receive those actual expenses in the amount of $6,979.66, given the Court's finding as to the necessity of those expenses which were related to Petitioner's efforts to obtain the return of the Children under ICARA and the Hague Convention.

   Petitioner also requested an additional $816.12 in court costs relating to his Article 15 Declaration. Petitioner was unable to provide documentation concerning these expenses. Therefore, the Court was unable to assess the validity of such expenses. Accordingly, the Court declined to award Petitioner the expenses for which he could not provide documentation, specifically, as it related to Petitioner's
request for $816.12 in court costs associated with his Article 15 Declaration.

The court ordered that Respondent was to pay to Petitioner the total sum of $30,463.26, reflecting attorneys' fees in the amount of $23,483.60 and necessary expenses in the amount of $6,979.66.

De La Vera v Holguin, 2014 WL 4979854 (D. NJ) [Spain] [Habitual Residence] [Petition granted]

In De La Vera v Holguin, 2014 WL 4979854 (D. NJ) the district court granted the Petition of Washington Alberto Delgado De La Vera for the return of his two minor children to Spain.
Petitioner was a Spanish citizen residing in Zaragoza, Spain, and was the father of two minor children, K.H. and G.H. Respondent Sonia Piedad Holgguin, the mother of K.H. and G.H., was a Spanish citizen living in Trenton, New Jersey, with K.H. and G.H. In April 1999, the parties' first child, K.H., was born in Ecuador. In or around fall 2001, the parties moved with K.H. to Zaragoza, Spain.  The parties' second child, G.H., was born in September 2002 in Spain.. Although Petitioner and Respondent never married, the parties lived together with their two children as a familial unit in Zaragoza, Spain, from fall 2001 until July 2012. K.H. lived eleven years of her life, and G.H. lived ten years of her life, in Zaragoza, Spain. Petitioner was employed as a bus driver for over ten years in Spain. Respondent was primarily a stay at home parent who worked for a few months at a time through job placements by a staffing agency.

In July 2012, Respondent was unemployed and traveled to the United States through a visa-waiver, which permitted her to stay in the United States for ninety days, to find short-term work. Respondent purchased a round trip ticket to Orlando, Florida, arriving July 13, 2012 and with a return flight scheduled for October 5, 2012. Respondent left many of her personal items and effects in Zaragoza when she departed for the United States. Shortly after arriving in the United States, Respondent traveled to Trenton, New Jersey, where she knew classmates from Ecuador, and rented a room. From July 13, 2012, through September 14, 2012, the children resided with Petitioner at the family residence in Zaragoza. In September 2012, Respondent suggested to Petitioner that the children travel to the United States. The children traveled to the United States, arriving in Philadelphia on September 14, 2014, bringing along clothing, school records, immunization records, photographs, karate medals, and K.H.'s guitar. The children left many of their personal items and effects in Zaragoza. The children's return flight was scheduled for October 14, 2012. Petitioner testified that the children's trip to the United States was only supposed to be for one month, during which time they would visit their paternal grandfather and then travel back to Spain with Respondent. Petitioner stated that the children brought the guitar, photographs, and medals to “show their grandfather and to leave some of those things with him as a memento. Petitioner testified that he sent the children to the United States with their school and immunization records because Respondent told him “that all those documents were necessary so that you could move around the United States freely. So that if the police were to stop them by showing those documents, she could be supported by those documents.”
In contrast, Respondent testified that she suggested to Petitioner that the children travel to the United States to live with her and attend school in the United States, but Petitioner said no. Respondent stated then suddenly one day Petitioner called her and told her the children would be arriving in the United States that same week and for Respondent to find out the documents needed for the children to begin school when they arrived. As to the length of the children's stay in the United States, Respondent's testimony was inconsistent. First, Respondent testified that she and Petitioner discussed the possibility of the entire family relocating to the United States, including Petitioner and “the girls would come and then see if they would adapt here. If they didn't get adapted to this place, then we would return.”  Later Respondent, however, insisted that Petitioner “knew from the very beginning that the girls were not going to return to Spain” and that Petitioner was also going to move to the United States permanently.

The Court found that Petitioner initially agreed to allow the children to stay abroad for an indefinite duration to attend school in the United States. Petitioner sent the children to the United States at the beginning of the school year with their school records. Prior to leaving Spain, Petitioner did not send the children to the first few days of their school year in Spain. The Court found incredible Respondent's testimony that both parties agreed, before the children arrived in the United States, that the children were not going to return to Spain and that Petitioner would also relocate to the United States.

In October 2012 Respondent advised Petitioner she was ending her relationship with Petitioner for a new man in the United States and that the children would not be returning to Spain. The Court found that Petitioner did not consent to Respondent keeping the children in the United States and began to make arrangements to travel to the United States to bring the children back to Spain. Petitioner arrived in the United States on November 8, 2012. Petitioner intended to take the children on a trip to visit their paternal grandfather in Massachusetts and then bring the children back to Spain. Petitioner ultimately returned the children back to the custody of Respondent pursuant to a court order for temporary custody obtained by Respondent from the New Jersey Superior Court.
On December 8, 2012, Petitioner returned to Spain without the children because he was required to return to work. On December 11, 2012, Petitioner filed a report with the Spanish Department of Homeland Security stating the children were wrongfully detained in the United States without his consent. On or about December 22, 2012, Petitioner submitted a petition for the return of the children with the Spanish Central Authority. On or about July 10, 2014, Petitioner filed the Petition with the district Court.

During the two years of living in the United States, the children lived with Respondent at three different residences. Currently, Respondent rented two rooms from a couple she met after arriving in Trenton two years ago.  The children shared a bedroom on the same floor as the couple, and Respondent has a room in the basement. Respondent and the children share a kitchen and bathroom with the couple.  Respondent has also held four different jobs while in the United States and was working at a factory making approximately $450 per week.  Respondent did not have legal authority to work in the United States. Both children attended school in the United States for two years but did not participate in any extracurricular activities. The only extended family the children had contact with in the United States was Petitioner's father in Massachusetts but have only visited him on two occasions. They overstayed their visas and are not able to travel outside of the United States to visit other extended family members or Petitioner, and the children did not have healthcare insurance.
The Court interviewed K.H. and G.H. separately in camera.  K.H. was fifteen years old and had just begun the tenth grade. K.H. stated that she preferred to live in the United States but might have been okay with returning to Spain in November 2012 if her mother had returned with her and her sister.  G.H. just turned twelve years old and was in the seventh grade. When asked what types of things she does in the United States with her mother, G.H. could only identify going to the mall and had to be prompted to identify more activities such as playing games. When asked directly, G.H. stated she wanted to remain in the United States but did not give any reasons for her choice.

The Court observed that first step in its analysis was determining the actual date of the children's removal or retention “so as to establish the relevant date of [the children's] habitual residence for purposes of the Convention.” Karkkainen, 445 F.3d at 290. Here, the assertion was that the children were unlawfully retained here by Respondent. In determining the date of a wrongful retention, the court pointed out that Third Circuit has agreed that the wrongful retention does not begin until the noncustodial parent clearly communicates her desire to regain custody and asserts her parental right to have her child live with her.” The Court found that the date of retention may have taken place sometime during October 2012, but began no later than November 9, 2012. Petitioner testified that during October 2012 he contacted Respondent and Respondent told him that she intended to remain in the United States with the children permanently. After the telephone call, Petitioner understood that Respondent did not intend to bring the children back to Spain, informed her that he did not consent to the children remaining in the United States, and planned a trip to the United States to bring the children back to Spain.

Having determined that November 9, 2012 was the measuring date of the children's wrongful retention, the Court had to determine the place of the children's habitual residence as of this date. The record indicates that K.H. and G.H. had only been in the United States for a little over a month when the wrongful retention occurred. It could not be said that K.H. and G .H. became “firmly rooted in their new surroundings.”Karkkainen, 445 F.3d at 292. Furthermore, neither party argued that the children had acclimatized to the United States at the time of retention. It was undeniable that Spain was the children's habitual residence before they traveled to the United States. As there was no shared mutual intent, on the part of the parties, for the children to abandon their prior residence and no evidence that the children were acclimatized to the United States prior to retention, the Court concluded that the children's habitual residence immediately prior to November 9, 2012, was Spain.

The Court found that at the time of the children's retention in the United States, Petitioner had rights of custody as established by Spanish law. Respondent's retention over the children in the United States against Petitioner's will violated Petitioner's right to exercise parental authority over K.H. and G.H. in accordance with the Spanish Civil Code and Spanish Constitution. From July 2012 through September 2012, Petitioner was the primary caregiver of the children while Respondent was in the United States. Respondent acknowledged that Petitioner remained in contact with herself and the children during the first few weeks the children were in the United States. Once Petitioner was informed by the authorities in the United States he was not allowed to take the children with him back to Spain against Respondent's wishes, Petitioner began the legal process to have his children returned. These facts sufficiently establish that Petitioner was exercising his custody rights at the time of wrongful retention. The district court held that  Petitioner satisfied his prima facie burden of proving that K.H. and G.H. were wrongfully retained in the United States.

Respondent raised three affirmative defenses recognized by the Convention: (1) that Petitioner consented and acquiesced to the children's retention in the United States; (2) that proceedings were commenced more than one year after wrongful retention and the children are now “well settled” in the United States; and (3) that the children are at an age and degree of maturity at which it is appropriate to take account of their views, and both children stated they wanted to remain in the United States. The court, however, “retain[s] the discretion to order return even if one of the exceptions is proven.”Feder v. Evans–Feder, 63 F.3d 217, 226 (3d Cir.1995).

Nothing in the record demonstrated that Petitioner consented to the children's permanent retention in the United States or to Respondent making unilateral decisions regarding the children's future, nor was there evidence that Petitioner acquiesced to the present arrangement. The evidence did not support Respondent's contention that the arrangement was permanent. Moreover, since learning of Respondent's decision to retain K.H. and G.H. in the United States, Petitioner  objected and pursued his rights under the Convention. Thus, the record demonstrated that Petitioner agreed to allow the children to visit the United States for an indefinite period, but it was unclear that he agreed to anything beyond that. This intent fell short of the standard for finding consent or acquiescence under Article 13(a) of the Convention.

The Court found that K.H. and G.H. were not sufficiently settled here. The children arrived in New Jersey two years earlier and lived in three different residences, and currently shared an apartment with strangers Respondent had only known for a short period of time. The children were not involved in any extracurricular activities, and the only family they had, outside their mother, was a paternal grandfather they had only seen twice. Furthermore, Respondent's employment is not settled as she testified to having at least four different jobs since her arrival, some with hours in the middle of the night. Respondent testified that she dids not have the legal authority to work in the United States. Finally, while not a dispositive factor, the immigration status of Respondent and the children was a factor that disfavors finding the children settled in their new environment. Respondent and the children originally travelled to the United States on a tourist visa that expired in October 2012 and December 2012, respectively. Respondent had not applied for residency or any other visa on behalf of herself or her children. All three were here illegally and thus subject to deportation at any time. The Court found that Respondent had not proven that K.H. and G.H. have settled in their new environment.

The Court noted that while the child's wishes can be the sole reason that a court refuses to order the return of the child to his or her habitual residence a ‘court must apply a stricter standard in considering a child's wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his or her habitual residence. . In analyzing whether to apply the “wishes of the child” exception a court should consider: “whether the child is of sufficient age and maturity for his or her views to be taken into account” and “whether a child's desire to remain or return to a place is the product of undue influence.” The children were fifteen years old and twelve years old and had been in the United States for just over two years. Both children were informally questioned in the presence of counsel but not the parties. Both children expressed the view that they would prefer to remain in the United States, but only K.H. provided reasons for her preference. K .H. expressed that she believed there were better opportunities for her in the United States than Spain and mentioned that she did not believe her mother would return to Spain if she was sent back there. K.H. acknowledged that her job opportunities and her life in the United States in general are more limited than in Spain because of her immigration status. Both children reported to have contact with their extended family members in Spain and acknowledged the only family they had in the United States was their mother and their paternal grandfather, who they had only seen twice. The Court found that K.H. has reached an age of maturity at which it was appropriate to take account of her views. The circumstances do not warrant providing their views controlling weight.  The children had lived here two years, at least in significant part, as direct result of their wrongful retention here by Respondent. As the Third Circuit noted, “[a] lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home.”Yang, 499 F.3d at 280. In such a case, “application of the exception ... would reward [a respondent] for violating [a petitioner's] custody rights, and defeat the purposes of the Convention.”

In addition to requesting that this Court order K.H. and G.H.'s return to Spain, Petitioner sought Petitioner's expenses and costs, including attorney's fees and transportation costs, pursuant to 42 U .S.C. § 11607.  The Court had already determined that the assignment of pro bono counsel to Respondent was appropriate due to Respondent's financial circumstances and inability to pay. Thus, an award of expenses and costs would be “clearly inappropriate.” Petitioner's request for expenses and costs was denied.

Matter of R.B v. K.G., 2014 WL 5347587 (Fam Ct, 2014) [New York Family Court] [Israel] [Well Settled] [Age and Maturity]

In Matter of R.B v. K.G., 2014 WL 5347587 (Fam Ct, 2014) Petitioner-father R.B. filed petitions in early 2014, asserting that Respondent-mother K.G. wrongfully retained the subject children, M.B. (13) and G.B. (10), in the United States and that they should be returned to Israel, their country of habitual residence. The Family Court granted the petition.
The parents were born and married in Israel. Their two children were born in Israel and lived there for their entire lives until August 4–5, 2012, when the mother brought them to the United States. The parties August 12, 2007 divorce agreement was incorporated, but not merged, into a September 2007 judgment of divorce from a Family Court in Haifa, Israel. The Agreement stipulated that Ms. G. would have primary residential custody of the children and that both parents "will be guardians to the Children" within the meaning of Israeli custody law. It provided that: The Minors shall not leave Israel except upon the joint consent of the Husband and Wife. Notwithstanding the above, the Husband and Wife shall not withhold approval of the Minor's exiting the country where it is required for a trip abroad with the Husband or the Wife or any of their relatives or friends, for a period of up to 1.5 months. Both parties testified that, following the divorce, the father fully exercised his parenting and custodial rights in Israel. The children were closely bonded to each parent.
According to the mother's testimony, she developed an intent in or about December 2011 to spend at least a year in the United States with the children. She notified the father that she wished to do so, stating that she wished to study in the United States and that the children would have the opportunity to learn English. Mr. B. informed Ms. G. of his opposition to this plan. Over a period of several months, the parties attempted to hammer out an agreement through mediation. Ultimately, the father agreed to permit the children to accompany the mother to the United States for the one-year period of August 2012 to August 2013 provided that the mother agree to certain conditions. The parties never signed the agreement. The father testified that, ultimately, he did not want to interfere with the children's chance to spend a year in the United States and to learn English, and that he clearly understood that, even if not all of the financial arrangements were fixed, the children would in any case be returning within one year and that the mother would pay for his round-trip airfare to visit the children in the United States. The court found the father to be a truthful, very straightforward witness whose testimony the court credited. On August 4–5, 2012, the mother flew to New York with the children. Ms. G. did not return the children to Israel.
The father maintained regular contact with the children, by telephone and via Facetime, as well as through letters and packages. He tried to speak with the children about three times per week through telephone or Facetime, although he was not always successful. He visited the children in New York in October 2012, with the mother paying for his round-trip airfare. The father visited the children again in March 2013, staying with his new partner at a hotel in New York. The mother again paid for his round-trip airfare. During the spring 2013 visit, the mother raised for the first time the issue of having the children stay in New York for another year. The father adamantly opposed any extension. On April 6, 2013, the mother sent the father an email, stating in pertinent part,"... I have decided to try to extend our stay here for another year considering, among other things, the children's wishes and their best interest. " The father made clear his opposition to the children remaining in the United States.

In January 2014, the father, through counsel, filed a request for Family Court to register the Israeli divorce/custody order in New York and to enforce that order by directing the mother to return the children home to Israel. See DRL 77–d. On February 11, 2014, the mother filed an objection to the registration of the out-of-state custody order. The court held that the mother had not proffered any basis pursuant to statute to object to the registration of the order and that it was therefore proper to register the Israeli order.

Following the registration of the Israeli order, Mr. B.'s counsel re-filed the petition on March 3, 2014, seeking enforcement of the Israeli custody order and the return of the children to Israel, based in part upon the requirements of the Hague Convention. On May 5, 2014, the mother, through counsel, filed an answer and cross-petition seeking to "enforce and modify an order and for contempt of court." In the verified document, the mother specifically stated that the parties modified the 2007 Israeli order in 2012 and again in 2013. Ms. G. averred that the parties agreed in 2012 that the children would join her in New York "through the summer of 2013" and in 2013 that the children would remain in New York "through the summer of 2014." On June 11, 2014, the court on its own motion dismissed the mother's cross-petition for lack of jurisdiction for the reasons, citing, inter alia, DRL 76–b. The court indicated that determination as to habitual residence is fact-intensive and depends upon the most recent "settled intent" shared by those entitled to fix the children's residence, here their parents. Gitter, supra, 396 F.3d at 131–32. The focus is on the latest time the parents shared an intent. See also Hofmann v. Sender, 716 F.3d 282, 291–92 (2d Cir.2013). In making this determination, courts review the actions and declarations of the parents, as that normally controls the habitual residence of the children.

The Court found that Mr. B. established a prima facie of wrongful retention of the children. Although the parties did not actually sign the agreement permitting the mother to take the children to the United States before their trip to New York in August 2012, the parties had reached an understanding that the mother could take the children to New York for one year. The father, whose testimony the court credited based upon its observation of the father on the witness stand, as well as upon the logic and consistency of his testimony, acknowledged that he agreed to have the mother take the children to New York for one year from August 2012 to August 2013, although he and the mother could not come to terms on the financial assurances or penalties for noncompliance by the mother. Despite the mother's belated assertion that there was no firm agreement, her prior sworn statements that the initial trip to New York was for one year belied her later statements that it was for an indefinite period of time. In addition, based upon the mother's material inconsistencies in her sworn statements and testimony, as well as upon the court's observation of her demeanor on the witness stand, the court did not credit her testimony to the extent that it contradicted that of the father.

The parties' understanding that the mother could take the children for one year from August 2012 to August 2013 had great significance for the court's analysis. First, there was no wrongful removal of the children from Israel. The parties agreed to the one-year removal even though they did not sign a document. As that was the case, the claim by the mother and the attorney for the children that the father did not file the petitions within one year of the wrongful removal or retention of the children could not prevail. The father filed the proceedings in early 2014, well within a year of the alleged wrongful retention of the children in August 2013; consequently, the court could not analyze whether or not the children were well settled in their new environment and should not be returned.
There was no question but that the retention of the children in the United States after the initial year of August 2012 to August 2013 was wrongful. The father never consented to the children staying for a second year and not thereafter. The email exchanges between the parties and the father's credible testimony established that he vehemently opposed the children remaining in the United States for a second year. The period of wrongful retention commenced when the non-custodial parent, Mr. B., clearly communicated his desire to regain his custody rights and demanded the return of the children. In spring 2013, the father demanded return of the children as of August 2013. After not receiving an affirmative response and after exchanges with Ms. G., the father offered to allow the children to stay in New York for one final year, from August 2013 to August 2014 only if certain conditions were agreed upon and met, and only if that agreement were reduced to writing and signed by the mother, with the agreement ratified by the Family Court in Israel. The mother did not meet those conditions and the parents had no meeting of the minds as to a second year, and no shared intent to change the children's habitual residence. The father never abandoned attempts to have the children returned to Israel. The mother's testimony as to whether or not the father agreed to a second year was inconsistent and not credible. The mother's retention of the children in New York impaired and prejudiced the father's rights of access to his children in direct contravention of a long-negotiated agreement incorporated into the 2007 Israeli order of divorce. Both parties agreed at trial that the father was at all times exercising his custody rights. Under these circumstances, the court found that the mother's retention of the children in the United States as of August 2013 was wrongful.

With respect to respondent's "wishes of the children" defense, the focus is not so much on the wishes as it is on a valid "objection" to returning to Israel. While M. expressed enthusiasm about remaining in New York and articulately expressed her reasons therefor, the court was at the same time impressed by M.'s description of her ties to Israel. The court found G. to be very sincere, but at his age, he did not demonstrate the level of maturity necessary to make a life-changing decision to remain in the United States. M. did demonstrate a real level of maturity, but neither child focused upon what it would mean not to have their father in their life to the extent that he could participate in their day to day activities and decisions that materially affect their lives, as he had done since birth until the time the mother took them to the United States. Although the mother did not exercise undue influence upon the children, the court found that at least a substantial portion of the children's wish to stay in the United States resulted from the mother's wrongful retention of them here for a second year. In addition, the children did not "object" to being returned to Israel within the contemplation of this provision of the Hague Convention and ICARA. "They clearly preferred or wished to remain here, but an objection within the meaning of the Convention and ICARA refers to a more substantial basis, such as fear of physical, emotional or psychological harm, or some substantive basis other than enjoying the activities in which they are engaged or liking their friends in their new environment or the opportunities that new environment presents. The Court held that even were the court to find that the children "object" to repatriation in Israel within the meaning of the Hague Convention, it would exercise its discretion to order the return of the children to Israel because the parties had agreed that its courts would determine all custody issues. It noted that if the Israeli Family Court believes it is in the children's best interest to remain in or re-visit the United States, it has the power to modify its custody order.

Authors comment:

Hague Convention cases are not custody cases. The court is limited to adjudicating "only rights under the Convention" and may not decide "the merits of any underlying child custody claims. See Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). A petition for the return of a child commencing a civil action for the return of a child must be filed "in any court which has jurisdiction of such action." 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b).

The Supreme Court has jurisdiction to hear these proceedings. N.Y. Const, art VI, § 7[a]. On the other hand, the Family Court is a court of limited jurisdiction, whose jurisdiction is proscribed by Article VI, § 13 of the New York State Constitution. It has not been conferred with jurisdiction under Article VI, § 13 of the New York state constitution to determine such cases. A court hearing a Hague Convention proceeding must have jurisdiction of the action and must be authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). Family Court is not authorized to exercise such jurisdiction. While 22 U.S.C. § 9003, formerly cited as 42 USC § 11603, grants original jurisdiction of these proceedings to State and federal district courts, it does not grant jurisdiction to state courts of limited jurisdiction, such as the family court and surrogates court, nor does it purport to do so.

Moreover, Domestic Relations Law §77-a, the Uniform Child Custody Jurisdiction and Enforcement Act, which provides that a "court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination", does not authorize the commencement of a civil action for the return of a child.


It appears that the Family Court lacks subject matter jurisdiction to hear Hague Convention cases. This has been confirmed by the U.S. Court of Appeals for the Second Circuit, which has held that " [t]he phrase "in any court which has jurisdiction of such action," 42 U.S.C. § 11603(b), underscores that while § 11603(a) confers jurisdiction in a particular federal forum (i.e., in United States district courts), it does not confer jurisdiction in particular state courts (e.g., a family-law court; a juvenile court; or a court of general jurisdiction); the appropriate state forum for an action under the Hague Convention is an issue of state law. The court in which the petition is filed must also be "authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). See footnote 25.