Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.) [ New Zealand] [Federal & State Judicial Remedies] {Expert Testimony]

In Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.)   Petitioner Anthony Stead, a citizen of New Zealand, seeks the return of A.C.S., the son of petitioner and respondent.   Respondent raised the affirmative defense that returning A.C.S. to New Zealand would result in grave risk of either physical or psychological harm or would otherwise place A.C.S. in an intolerable situation.  Petitioner filed his motion before respondent had designated an expert witness for the evidentiary hearing.   He did so based on respondent's stated intention,  to introduce expert testimony.   On November 24, 2014, respondent filed a witness list identifying Dr. Andrew Loizeaux,  presumably to provide expert testimony as to the psychological effects of returning A.C.S. to New Zealand. 

The District Court observed that Rule 702 of the Federal Rules of Evidence provides that:  A witness who is qualified as an expert by knowledge, skill, experience,  training, or education may testify in the form of an opinion or otherwise if:  (a) the expert's scientific, technical, or other specialized knowledge will help  the trier of fact to  understand the evidence or to determine a fact in issue;  (b) the testimony is based on sufficient facts or data;  (c) the testimony is  the product of  reliable principles and methods;  and (d) the expert has reliably  applied the principles and methods to the facts of the case. Petitioner did not contest the reliability of a potential expert opinion, only its relevance.   Relevance in the Rule 702 context is determined by Rule 401, which defines relevant evidence as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action."   The analysis of relevance under Rule 401 requires a court to undertake two inquiries.   The first is a procedural question which derives from Rule 401's identification of "evidence having any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence."  This inquiry focuses on "whether the evidence is probative or factually relevant  to the proposition asserted."   Sims v. Great Am. Life Ins. Co., 469 F.3d 870,  881 (10th Cir. 2006).   The second inquiry, whether the evidence is "of consequence to the determination of the action," asks the substantive question of whether the proposition for which the evidence is offered is properly provable in the case.   To assess the relevance of proffered expert testimony, the Court must "look at the logical  relationship between the evidence proffered and the material issue that evidence is supposed  to support to determine if it advances the purpose of aiding the trier of fact."   Bitler, 400 F.3d at 1234.

The Court pointed out that Petitioner's motion sought to prohibit respondent "from unnecessarily increasing the expense and burden of this litigation by introducing irrelevant expert reports and testimony.  The Sixth Circuit has indicated that a grave risk of harm can only exist in two situations.   See Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).   "First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.g., returning the child to a zone of war, famine, or disease.   Second, there is a grave risk of harm  in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in  the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.   Psychological evidence ... is only relevant if it helps prove the existence of one or these two situations."  While the Tenth Circuit has not explicitly adopted the standard outlined in Friedrich, it has noted that the grave risk exception imposes a  "strict demand" on the party claiming it and that " '[g]rave risk' means the 'potential harm to  the child must be severe, and the level of risk
and danger very high.' "   West v. Dobrev, 735 F.3d 921, 931 (10th Cir.  2013)
(citing  Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).  

Respondent argued that expert testimony on the impact of relocation to New Zealand is  necessary for the Court to evaluate her argument that the relocation presents an "aggregation of adjustment issues" that will result in grave psychological harm to A.C.S.   These issues include:  "(1)  a fundamental poverty commensurate with moving to another country without a home or job prospects or any likelihood of financial support for A.C.S.;  (2) an absentee father who has no  ability or intention to participate in raising A.C.S.;  (3) a situation where the Parties will be  unable to meet A.C.S.'s basic needs;  and (4) familial circumstances that are harmful to A.C.S."     Petitioner responds that none of the issues that respondent identifies are relevant to or even permissibly considered in the Court's analysis of the grave risk exception. 

    The Court found that the parties' finances and familial circumstances-the first, third, and fourth  issues raised by respondent-are irrelevant to the Court's determination of whether relocation poses a grave risk of harm to A.C.S., and that expert testimony as to the psychological effects of those circumstances is therefore irrelevant.   As petitioner points out, the State Department's analysis of the grave risk exception specifically forecloses consideration of the parties' financial situation upon relocation.   Public Notice 957, 51 Fed.Reg. 10494, 10510 (Mar. 26, 1986);  see also Krefter v. Wills, 623 F.Supp.2d 125, 136-37 (D.Mass.2009) ("a mere shortage of money is not, on its own, sufficient to establish an 'intolerable situation ' ");   Cook v. Scott,
2008 WL 2947692 at *5 (E.D.Mich. July 31, 2008) ("an 'intolerable situation' does not 
encompass return to a home where money is in short supply").

    As to respondent's claim that "familial circumstances that are harmful to A.C.S." are relevant  to the grave risk exception, the Court found that any evaluation of "familial circumstances"  would concern A.C.S.'s best interests, not respondent's affirmative defense.   While the Court has no doubt that poverty and lack of familial support place developmental stresses on children, and that an expert may testify that those  stresses have psychological effects, the Court's role in a petition filed under the Convention is not to determine the best situation for the child.  The Convention does not invite or empower the Court to discriminate against petitioners on the basis of wealth or familial ties. For the Court to hold that a petitioning parent's poverty or relative lack of family support rises  to the level of an intolerable situation would expand the grave risk exception beyond its intended narrow scope of protecting children from
a high risk of grave harm.   See 51 Fed.Reg. at 10510 (noting that the risk to  the
child must be "grave, not merely serious" for the exception to apply). The financial and familial issues respondent identified went  to the merits of the underlying custody dispute and did not rise to the level of a high risk of grave psychological harm.

  Respondent also argued that the Court should consider all of the factors that may present a  risk of psychological harm or otherwise create an intolerable
situation in the aggregate.  In support of this  approach, respondent cites Didur v. Viger, 392 F.Supp.2d 1268, 1273 (D.Kan.2005), rev'd and remanded on other grounds, 197 Fed.Appx. 749, 753 (10th Cir. 2006).  Didur, however, concerned  substantially different facts than this case and does not support respondent's argument that  expert testimony into the totality of circumstances of A.C.S.'s return to New Zealand is relevant.  Didur considered the aggregated effect of independent characteristics of the petitioning parent that contributed to an overall atmosphere of abuse and neglect, including depression, alcoholism, sexual abuse, and "inability to adjust."    The  Didur court found that while no individual issue identified would satisfy the grave risk exception, "in conjunction with all the other factors, they become legally significant."    In Didur, each issue  considered was independently relevant to determine the petitioner's "repeated neglect of [the child] and her emotional instability as a parent,", and aggregation simply assisted the court in determining whether that abuse and neglect rose to the level of a grave risk of harm.   Here, by contrast, respondent sought to use aggregation to bootstrap areas of inquiry that would not otherwise be relevant to the Court's analysis. Accepting respondent's approach would expand the scope of the grave risk exception in a  manner not contemplated by Didur.

    Because financial and familial circumstances were not relevant to application of the grave risk  exception, the Court  granted plaintiff's motion to exclude expert testimony on the  psychological effects of those circumstances.

The Court turned to the final issue that respondent  claimed required expert testimony:  petitioner's involvement in A.C.S.'s life.   Respondent characterizes petitioner as "an absentee father who has no ability or intention to participate in raising A.C.S.,"  and said that  petitioner has not had "any role in A.C.S.'s life since at least May 2013."  Petitioner noted that May 2013 was shortly after  respondent and A.C.S. traveled to the United States from New Zealand, and that giving any weight to criticism of petitioner's involvement with A.C.S. after respondent brought A.C.S. to the United  States against petitioner's will would be rewarding respondent for the unlawful retention.  The Court found that respondent had not met her burden of showing that expert testimony was  relevant to the Court's determination of whether the grave risk exception applies in this case.   In support of the proposed expert testimony, respondent offered only that petitioner had been an absentee parent since the time respondent brought A.C.S. to the United States.   Respondent provided no details as to why petitioner's relative lack of involvement in A.C.S.'s life from afar reflected an inability or unwillingness to care for A.C.S. in New Zealand.   Nor had respondent identified any circumstances that could lead the Court to conclude that  petitioner's lack of involvement in A.C.S.'s life since May 2013 created a risk of "serious abuse or  neglect" upon return to New Zealand or that the courts of New Zealand were "incapable or  unwilling to give the child adequate protection."   Moreover, respondent gave no indication of what her proposed expert would say as to the psychological risk to A.C.S. of relocation to New  Zealand beyond vague references to the parties' respective financial and family situations.   Given the absence of detail about the proposed testimony, the Court was unable to determine what, if any, weight to give it, and granted the motion.

Pliego v Hayes, 2014 WL 6796537 (W.D.Ky.) [Spain] [Federal & State Judicial Remedies] [Summary Judgment]

In Pliego v Hayes, 2014 WL 6796537 (W.D.Ky.)  Amanda Leigh Hayes and Mario Luis Gonzales Pliego were married on July 11, 2009 in Spain. Their child, ALG, was born in 2011 and is three years old. Hayes was a citizen of the United States, and Pliego is a citizen of Spain. Hayes has filed for divorce and custody in Kentucky, while Pliego has filed for divorce and custody in Spain. Pliego is a career diplomat at the Spanish Embassy and as such, the family has lived in different countries during ALG's lifetime. They lived in Jakarta, Indonesia until July 2012 when they moved to Ankara, Turkey. Pliego was currently still living in Ankara. Hayes and Pliego agreed that Hayes and ALG would travel to Kentucky to visit extended family on April 6, 2014. The date of return was to be May 4, 2014. Instead, Hayes told Pliego that she would not be returning and intended to keep ALG with her in Kentucky. Currently, Hayes and ALG were residing in Kentucky pending resolution of this action, subject to agreed conditions.

   Hayes moved for summary judgment, arguing that Spain was not ALG's habitual
residence. She alleged that ALG was born in Kentucky and had never
lived in Spain, spending a total of 46 days there over a series of four trips. She
noted that the Convention seeks to remedy situations where the victim of an
abduction"suffers the sudden upsetting of his stability, the traumatic loss of
contact with the parent who has been in charge of his upbringing, the uncertainty
and frustration which comes from the necessity to adapt to a strange language,
unfamiliar cultural conditions, and unknown teachers and relatives."  She stated that "the child's remaining with his mother, who has been his primary care provider since his birth, in the United States will not result in the manifestation of these concerns, but an order of return to Spain would do so in this case." In response, Petitioner noted that his "burden at trial is only to show that the child's habitual residence is a contacting country to the Hague Convention, not a specific country, i.e. Spain." Additionally, he argued that there were multiple genuine issues of material fact in dispute regarding ALG's habitual residence, any one of which precluded summary judgment.


The Court found that there were multiple genuine disputes of material fact
regarding ALG's habitual residence, and that it would be inappropriate to resolve
these matters on summary judgment at this time. Thus, this motion was denied.

Singh v Pierpont, 2014 WL 6471374 (D. Hawaii)[Canada] [Federal & State Judicial Remedies] [Res Judicata]

In Singh v Pierpont, 2014 WL 6471374 (D. Hawaii) Singh and Pierpont were married on March 12, 2010. They were living in Honolulu, Hawaii at the time, and Singh was a musician with the Honolulu Symphony. W.R.P. was born in Hawaii‘i in July 2010. Singh auditioned for and was offered a position in the Winnipeg Symphony. In September 2010, the family moved to Winnipeg, Canada, where they lived in a rental property.  In August 2011, while the family was in Hawaii‘i, Pierpont served Singh with divorce papers. Pierpont filed the divorce action in the State of Hawaii‘i Family Court of the First Circuit. Pierpont filed a pre-decree motion seeking temporary sole legal and sole physical custody of W.R.P. Hawaii Family Court Judge Paul T. Murakami orally awarded Singh temporary sole physical custody and ordered joint legal custody. The ruling allowed Singh to return to Winnipeg with W.R.P., subject to certain conditions. On February 4, 2013, Hawai‘i Family Court Judge Na‘unanikinau Kamalii issued the Decree Granting Absolute Divorce and Awarding Child Custody.  Judge Kamalii, inter alia, awarded Singh sole physical custody, subject to Pierpont’s right to reasonable visitation. The Divorce Decree stated: Hague Convention, Jurisdiction and Venue.The court finds that the child [sic] habitual residence for the purposes of the Hague Convention on International Child Abduction is the United States of America. Neither party shall have the ability to change the habitual residence of the child without the written consent of the other in the form of a stipulated order or further order of the court, and no action of either parent other than entering into a stipulated written order adopted by this court as an order shall suffice to establish consent to or acquiescence in a change of the child’s habitual residence in any other nation. It is the intention of the court that the habitual residence shall remain in the United States of America and that any foreign travel to or stay in any foreign country shall be temporary in nature and not result in a change of habitual residence. Hawaii will also retain child custody modification jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), so long as the child or at least one of the parties resides in Hawaii and venue shall remain in Honolulu, so long as at least one parent resides in Honolulu.

Pierpont filed a number of post-decree motions. Singh was represented by counsel at the hearing, but Singh herself did not appear. Judge Souza found her in default. After hearing testimony from Pierpont, receiving exhibits from both parties, and hearing counsel’s arguments, Judge Souza orally made findings that there had been a material change in W.R.P.’s circumstances and that it was in W.R.P.’s best interest to award sole physical custody to Pierpont, effective thirty days from the date of the hearing. The 4/4/14 Hawai‘i Order memorialized Judge Souza’s oral findings and orders at the March 12, 2014 hearing. Judge Souza found that he had continuing exclusive jurisdiction to make custody and visitation orders regarding W.R.P., pursuant to the UCCJEA, Haw.Rev.Stat. § 583–202, because the Hawai‘i Family Court issued the last order regarding custody and visitation, and Pierpont resided in Hawai‘i since that time.  The 4/4/14 Hawai‘i Order stated that, if Singh failed to return W.R.P. to the City and County of Honolulu on or before April 12, 2014,  then [Pierpont] shall be entitled to go to his residence in Winnipeg, Canada, or wherever else the child may be found, and take possession of him. In that regard, the Royal Canadian Mounted Police, the Winnipeg Police Service, and any other law enforcement officer or agency wheresoever located, are authorized, requested and directed to assist [Pierpont] to safely and securely regain immediate possession of the child.... 

On April 4, 2014, Singh filed an Application Under: The Child Custody Enforcement Act in the Queen’s Bench (Family Division), Winnipeg Centre (“the Canada Family Court”), seeking an order granting her primary care and control of W.R.P. On April 11, 2014, the Canada Family Court held a hearing on the Canada Application. Pierpont did not appear at the hearing, but he was represented by counsel. On May 6, 2014, the Canada Family Court filed an Interim Order granting Singh interim custody of W.R.P. and ordering that he remain in Winnipeg, in the Province of Manitoba, until further order of the court . On May 5, 2014, after an April 16, 2014 proceeding during which Pierpont appeared by telephone, the Canada Family Court signed an Interim Order stating that Pierpont was to have care and control of W.R.P. from May 5, 2014 at 5:00 p.m. until May 21, 2014 at 7:00 p.m., except for certain overnight periods specified in the order. Pierpont’s counsel signed the order, approving its form and content. Pierpont took W.R.P. from Canada to Hawai‘i in May 2014.  W.R.P. had been living with Singh in Canada until that time. W.R.P. had remained with Pierpont in Hawai‘i since May.

Pierpont moved to dismiss or for summary judgment. In his motion, Pierpont argued that he was entitled to dismissal of, or in the alternative, summary judgment because: the divorce decree expressly found that the United States was W.R.P.’s habitual residence; W.R.P.’s habitual residence had never changed since then; and Pierpont’s act of returning W.R.P. to his habitual residence was not a violation of either the Hague Convention or ICARA, regardless of the Canada Family Court’s orders.

  The district court held that as threshold matter, it had to determine where W.R.P.’s habitual residence was at the time Pierpont removed him from Canada. Pierpont emphasized that the Divorce Decree was the only court order that addresses the issue of W.R.P.’s habitual residence, and he argued that the Court must accept Judge Kamalii’s finding that the United States was W.R.P.’s habitual residence under the res judicata, i.e. claim preclusion, doctrine. It observed that the Ninth Circuit, however, has held that ordinary principles of claim and issue preclusion do not apply to claims under ICARA and the Convention. See Holder v. Holder, 305 F.3d 854, 863–64 (9th Cir.2002). It  noted in Holder that 42 U.S.C. § 11603(g)  provides that federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention and ICARA. Gaudin v. Remis, 415 F.3d 1028, 1034 (9th Cir.2005). In this case the Divorce Decree did not order or deny the return of W.R.P., pursuant to the Hague Convention, and there was no evidence in the record that either Singh or Pierpont raised a Hague Convention/ICARA claim during the divorce proceedings. Thus, there was no genuine dispute of material fact regarding whether the Hawai‘i Family Court actually adjudicated a Hague Convention/ICARA claim during the divorce proceedings. The Court concluded that, as a matter of law under Gaudin, it was not bound by the habitual residence finding in the Divorce Decree.

The Court noted that the parties had been disputing where W.R.P. was to reside since the filing of the divorce action. Thus, their last shared, settled intent regarding his residence, if they had one, was formed prior to the filing of the divorce action. This Court finds that the determination of W.R.P.’s habitual residence at the time of removal depended upon the issue of whether, at any point before Pierpont filed for divorce, Singh and Pierpont had a shared, settled intent to abandon their habitual residence in the United States in favor of an indefinite stay in Canada.  In considering Pierpont’s Motion, there was evidence in the record that supported Pierpont and some evidence that supported Singh. The Court noted that it’s ruling on the issue of whether Singh and Pierpont had a shared, settled intent to make Canada the family’s habitual residence may depend upon a credibility determination. Making credibility determinations is inappropriate in a motion for summary judgment. The Court found that there were genuine issues of material fact as to the question of whether, at any time before Pierpont filed for divorce, Singh and Pierpont ever had a shared, settled intent to make Canada the family’s habitual residence. This necessarily meant that there were  genuine issues of material fact as to the question of what W.R.P.’s habitual residence was when Pierpont removed him from Canada. It denied the motion for summary judgment.

Pliego v Hayes, 2014 WL 6674560 (W.D.Ky.)[Turkey] [Federal & State Judicial Remedies] [Expert Testimony][Privilege]

In Pliego v Hayes, 2014 WL 6674560 (W.D.Ky.)   Amanda Leigh Hayes and Mario Luis Gonzales Pliego were married on July 11, 2009 in Spain. Their child, ALG, was born in 2011 and was three years old. Hayes was a citizen of the United States, and Pliego was a citizen of Spain. Hayes  filed for divorce and custody in Kentucky, while Pliego filed for divorce and custody in Spain. In July 2012 they moved to Ankara, Turkey. Pliego was still living in Ankara. Hayes and Pliego agreed that Hayes and ALG would travel to Kentucky to visit extended family on April 6, 2014. The date of returnwas to be May 4, 2014. Instead, Hayes told Pliego that she would not be returning intended to keep ALG with her in Kentucky. Hayes and ALG were residing in Kentucky pending resolution of this action, subject to agreed conditions.  Pliego  filed motions seeking to exclude the testimony of two proposed witnesses: John Higgins, based on the standard for admissibility of expert testimony, and Ann Guler, based on the psychotherapist-privilege. 

The district court observed that the admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. Rule 702 provides:  A witness who is qualified as an expert by knowledge, skill, experience,  training, or education may testify in the form of an opinion or otherwise if:  (a) the expert's scientific, technical, or other specialized knowledge will help  the trier of fact to understand the evidence or to determine a fact in issue;  (b) the testimony is based on sufficient facts or data;  (c) the testimony is the product of reliable principles and methods; and  (d) the expert has reliably applied the principles and methods to the facts of  the case.  It pointed out that in Daubert v. Merrell Dow Pharmaceuticals, Inc.,"the Supreme Court established a general gatekeeping obligation for trial courts to exclude from trial expert testimony that is unreliable and irrelevant." In performing its gatekeeping function, the Court must determine whether evidence proffered under Rule 702 "both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. A key consideration is "whether the reasoning or methodology underlying the testimony is sufficiently valid." The Supreme Court advises that the inquiry is "a flexible one," and that "[t]he focus ... must be solely on principles and methodology, not on the conclusions they generate." A testifying expert must "employ[ ] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152.    While there is no "definitive checklist or test" for meeting the standard of Rule 702, Daubert laid out a number of factors that typically "bear on the inquiry," including: whether the theory or method in question "can be (and has been) tested," whether it "has been subjected to peer review and publication," whether it has a "known or potential rate of error," and whether the theory or technique enjoys "general acceptance" in the "relevant scientific community."Daubert, 509 U.S. at 593-94. Although Daubert addressed scientific evidence, the Supreme Court in Kumho Tire Co. v. Carmichael held that a trial court may consider the Daubert factors for all types of expert evidence.  Kumho Tire, 526 U.S. at 150. Thus, the Daubert factors are nonexhaustive and may not be pertinent in cases where "the relevant reliability concerns ... focus upon personal knowledge or
experience."

     John Higgins was a parish priest. He held a Certificate of Qualification in Social Work from the University of Central England in 1975 and a Social Science Ph. D. from the University of Birmingham, England from 2007.  He worked as a Guardian ad litem for the courts of Staffordshire from 1981-1990 and the county of Cumbria from 1991-2000.  Hayes regularly attended the St. Nicolas Church and taught Sunday School there for approximately two years, beginning in April 2011. During this time, she met with Higgins for pastoral support and spiritual guidance. Additionally, Hayes allegedly showed him bruises that she claimed resulted from domestic violence. Pliego objected to allowing Higgins testify as an expert in the following areas of proposed testimony: "1) general knowledge about bruising and domestic violence; 2) Turkish and American domestic law; and 3) diplomatic family relations." The Court found that Higgins did not have the relevant education or experience, medical or otherwise, needed to opine about the cause of the bruising, or to determine that the bruising could not have been self-inflicted. Nor had he demonstrated use of any reliable methodology for determining the cause of the bruises. Therefore, the Court did not permit Higgins to testify regarding the bruises that he saw, but not about their cause, and held the other issues in abeyance.

The Court observed that the Federal Rules of Evidence establish that "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501. The United States Supreme Court recognizes a psychotherapist-patient privilege. Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996). Specifically, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure...."   Dr. Guler  was a psychologist who counseled Hayes in Ankara, Turkey and telephonically after Hayes returned to Kentucky.  The two had at least 38 counseling sessions together. Pliego attended 14, starting in June 19, 2013, "for the purpose of addressing and remediating issues raised in Amanda's counseling regarding parent conflict and violence."   Pliego argued that Guler could not disclose communications made between her and her patients unless all involved patients waive the privilege.  He argued that he was a patient and that he participated fully in 14 sessions. The court observed that to be protected from compelled disclosure, a statement must be a confidential communication, between a licensed psychotherapist and her patient, made in the course of diagnosis or treatment.  Jaffee, 518 U.S. at 15. The Court found that Pliego was a participant in the sessions, and that his statements were made in the court of diagnosis or treatment. Therefore, the Court held that the psychotherapist-privilege applied to the statements Pliego made during counseling sessions with Gerber. It rejected Hayes argument that the privilege was waived because the litigation was between the parties who participated in the joint sessions. The Court held that Guler could testify as to statements made by Hayes, but not as to any statements made by Pliego.

Jacksic v Serif, Not Reported in F.Supp.3d, 2014 WL 6685375 (D.Ariz.)[Serbia] [Rights of Custody] [Petition denied]

          In Jacksic v Serif, Not Reported in F.Supp.3d, 2014 WL 6685375 (D.Ariz.) on October 1, 2005, Jaksic and Serif were married in the Republic of Bosnia and Herzegovina. On March 1, 2006, their son M.J. was born in the Republic of Serbia.  On March 23, 2011, Jaksic and Serif's marriage was dissolved by the First Basic Court of Belgrade, Republic of Serbia ("Belgrade Court") based on the parties' mutual consent to dissolution and their signed agreement on the exercise of their parental rights related to M.J. The parties agreed that M.J. would live with Serif, and Serif would independently exercise parental rights over M.J. for care, guardianship, and upbringing. The parties also agreed on the manner of maintaining contact between Jaksic and M.J., which was that Jaksic would see M.J. when Serif agreed and Jaksic had time. The parties did not agree to any schedule or minimum time for Jaksic's personal contact with M.J. The parties' agreement did not establish a procedure for Jaksic to obtain personal contact with M.J. without Serif's agreement. The Belgrade Court determined that the parties' agreement on parental rights was in the best interest of the minor child and accepted the agreement. The March 23, 2011 judgment ordered that the marriage is dissolved, the minor child M.J. is entrusted to his mother Serif "who will exercise the parental right on her own," Jaksic is obligated to pay monthly child support directly to Serif, and the parties "shall regulate the manner of maintaining personal relations with the minor child with his father by mutual agreement."After the divorce, Serif permitted Jaksic to see M.J. in Belgrade and to take M.J. out of Serbia to visit Jaksic's parents and other family members.  On August 15, 2011, Serif married Esad Serif, who was a United States citizen. Subsequently, Serif applied for visas for M.J. and her to move to the United States.

      On January 5, 2012, Jaksic initiated a lawsuit in the Belgrade Court to modify
the judgment regarding custody of M.J. His complaint described the dissolution judgment as entrusting the custody of M.J. for care and protection to Serif, "who shall independently perform her parental rights."The complaint alleged that during the consensual divorce the parties had agreed that significant decisions regarding M.J., including change of residence, would be decided in a consensual, agreeable manner, but Serif was excluding Jaksic from such decisions. The complaint also stated that Jaksic had concluded that Serif intended to leave the country with M.J. and her current spouse, an American citizen, and to immigrate to America. Jaksic requested that the child custody provision of the March 23, 2011 judgment be modified to provide joint parental rights. A few days after Serif received notice of the Belgrade Court lawsuit, she had a telephone conversation with Jaksic during which Jaksic strongly opposed Serif taking M.J. to the United States and used foul language. Serif perceived Jaksic as possibly threatening her physically. Serif forbade Jaksic from seeing M.J. for at least six months and notified the court social worker and the police about their conversation.  On June 9, 2012, during a court proceeding, Jaksic said he would amend his complaint because he did not want to modify the child custody decision; he wanted only to organize his contact with M.J. to have a more precise schedule for visitation. But he did not amend his complaint.  On September 19, 2012, Serif signed a statement giving her consent that M.J. could travel to Bosnia and Herzegovina, Republic of Srpska, from September 20, 2012, to September 25, 2012. Jaksic took M.J. to Bosnia and Herzegovina so that M.J. could see his grandparents and cousins.    On October 23, 2012, a psychologist for the City of Belgrade reported to the Belgrade Court investigative findings and recommendations regarding custody of M.J. On October 30, 2012, Serif appeared at the scheduled hearing on Jaksic's complaint, but Jaksic did not appear and did not justify his absence. The Belgrade
Court ordered that Jaksic inform the court whether he wanted to continue the
lawsuit, and if he did, he should submit a motion to amend the complaint. The
Belgrade Court warned Jaksic that if he failed to comply with an order of the
court, the complaint would be deemed withdrawn. On February 1, 2013, the Belgrade
Court ordered that Jaksic's complaint was withdrawn and informed Jaksic that he
could appeal the ruling within 15 days. Jaksic did not appeal the ruling.

     On August 21, 2013, the United States issued immigrant visas to Serif and M.J.
On September 2, 2013, both visas were endorsed by the U.S. Department of Homeland Security, U.S. Customs and Border Protection. Both Serif and M.J. were issued U.S. permanent resident status as of September 2, 2013. On September 3, 2013, Esad Serif posted photographs online of Serif and M.J. on an airplane, apparently near South Bend, Indiana. On September 3, 2013, Jaksic tried to call Serif and could not reach her. Jaksic then called Serif's father, who told Jaksic that Serif and M.J. had departed for the United States. The Court found that Serif removed M.J. from Serbia on September 2, 2013.    After Serif and M.J. moved to the United States, Jaksic had conversations with M.J. via Skype about once a month, but Serif did not talk to Jaksic. During a January 2014 Skype conversation, however, Serif told Jaksic that her work schedule had changed and they needed to change Jaksic's Skype contacts. Jaksic called Serif bad words in front of M.J., and thereafter Serif did not permit Jaksic to have any Skype conversations with M.J.   On June 16, 2014, Jaksic submitted an Application Under the Hague Convention on the Civil Aspects of International Child Abduction to the U.S. Department of State for the return of M.J. On September 3, 2014, Jaksic initiated the present action, alleging that the September 2, 2013 removal of M.J. from Serbia breached Jaksic's custody rights.

The district court found that  the removal took place on September 2, 2103, and the parties agreed that immediately prior to the removal, M.J. was habitually resident in Serbia. It observed that as  a condition for any relief under the Hague Convention, Jaksic had  establish by a preponderance of the evidence that the removal of M.J. from Serbia was in breach of his custody rights and at the time of removal Jaksic was exercising those rights. See Convention, Art. 3. The dissolution judgment of the Belgrade Court did not expressly grant Jaksic any right of custody or unconditional right of access. It ordered that Serif will independently exercise parental rights and Jaksic will have contact with M.J. only when Serif permits it. Jaksic did not provide any Serbian legal authority or expert testimony showing that the dissolution judgment, which incorporated the agreement on parental rights, would be interpreted by the Belgrade Court as granting Jaksic greater rights than those actually stated. At the time of the dissolution, Jaksic may have believed that Serif agreed he was guaranteed access to M.J. and participation in decisions about M.J.'s care, education, and residence, but that is not what the court documents stated. Jaksic had opportunity to have the Belgrade Court modify the dissolution judgment if it was incorrect, incomplete, or unfair, but he abandoned his lawsuit before the Belgrade Court. Jaksic frustrated the very proceedings that might have given him rights of custody inconsistent with Serif's immigration to the United States with M.J. He knew Serif claimed and intended to exercise that right.
Therefore, he cannot show this Court that he is entitled to greater parental rights than those provided by the dissolution judgment.  Because Jaksic had not established by a preponderance of the evidence that the removal of M.J. from Serbia was in breach of his custody rights and at the time of removal Jaksic was exercising those rights, the Court did not decide additional issues raised by the parties.

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.