In Moura v Cunha, --- F.Supp.3d ----, 2014 WL 7251039 (D.Mass.) the opinion addressed two different cases under the Hague Convention. In both cases, for different reasons, the Court ordered the return of the children to their country of residence.
In Moura v Cunha, the mother allowed a friend, Cunha, allegedly, the child's godmother, to bring the child, Luana, from Brazil, her country of residence, to the United States. After the child's authorization to travel had expired, the purported godmother refused to take the child back to Brazil, despite the mother's attempts to have her back. The mother decided to pursue the return of the child to Brazil under the Hague Convention. The parties agreed that Luana's habitual residence was Brazil and that her retention was illegal after the authorization to travel expired in October 2012. Therefore, the threshold inquiry was met by Moura, and the presumption of return applied. During trial, Cunha asserted a mix of two exceptions. While the core of Cunha's contention seemed to be that the return to Brazil would place Luana in grave risk, Cunha also attempted to establish that Luana was well-settled in the United States. According to Cunha, Luana's older siblings were aggressive towards her, often screaming at her. Cunha also testified that Luana's development in Brazil was hindered by the complete lack of care by those surrounding her. Cunha affirmed that she witnessed Luana not being properly fed, and that she saw that Moura's refrigerator was frequently empty because Moura did not have money to buy food-or even water. Cunha clarified that Luana was receiving psychological support and was enrolled in an individualized education program. Cunha mentioned that Luana was well-settled in this country, getting along well with the people surrounding her. The Court held that even assuming that Cunha's rendition of the facts was precise and truthful, they were not sufficient to overcome the presumption of return. The grave risk exception demands clear and convincing evidence. The fact that Luana's siblings were aggressive toward her did does not lead to a conclusion of grave risk. As expressed by Cunha, the aggression shown Luana by her brothers strikes the Court as more akin to typical sibling disputes than to something more deeply troubling that might counsel more strongly in favor of return. Regarding the health risk, there was not enough evidence that Luana's return to Brazil would endanger her. As the Second Circuit explained in Blondin, the fact that the return might cause hardship or even eliminate certain educational or economic opportunities do not constitute a grave risk of harm under the Hague Convention. As to the well-settled exception the first prong of the exception applied in this case. The petition was filed on November 8, 2013, more than one year after October 20, 2012, when Cunha's authorization to travel with Luana had expired, Cunha failed on the exception's second prong, by not proving that Luana was well-settled in the United States within the meaning of the Convention. Nothing less than substantial evidence of the child's significant connections to the new country will suffice to meet the respondent's burden of proof. Here, there was no evidence whatsoever regarding Luana's social networks and relationships. The Court could not find that Luana was well-settled here.
In Gallagher v. Gallagher the mother, Mary Gallagher, brought her children from Ireland to the United States and failed to return to Ireland on the round trip tickets' return date. The father, Brendan, then pursued the return of the children to Ireland under the Hague Convention. During trial, Mary all but conceded that Ireland was the country of habitual residence, focusing instead in the argument that the children's retention in the United States was not illegal because Brendan consented to it. According to Mary, she and the children came to this country "with the written blessing and consent of [Brendan] including a job recommendation." The district court found that Mary and Brendan's relationship soured around 2009, coinciding with the economic crisis in Ireland. At that time, the family came to the United States with the intent of starting a life here. Although Brendan found sporadic work, he and Mary returned to Ireland in December 2009 after deciding that this work was not sufficient to support the family. The relationship between Mary and Brendan worsened over time and, by February of 2012, the two were no longer intimate and lived in separate parts of the family's house. The Court found that, at some point Mary made an entry in her journal setting forth her goal of getting divorced and moving with the children in May or June (though the Court did not explicitly note which year Mary was referring to) to the United States, whereupon she planned to remarry Steve. In order to accomplish that plan, Mary broached the goal of visiting her sister, who lived in Massachusetts, to see her newborn baby. Mary and Brendan discussed her coming to the United States at least for a visit. Although Mary testified that she made it clear to Brendan that she was moving to the United States, the Court did not so find. The Court found that to any objective observer it would have been clear that she thought that the marital relationship was at an end. Brendan had other plans, and not only wanted the relationship to continue, but also wanted to have his children in close proximity to himself. Brendan agreed to execute a document drafted by Mary, with the purpose of allowing her to seek emergency medical care for the children while in the United States. This document said the authorization's scope was "traveling/moving to United States of America." At the same time, Mary acquired round-trip airline tickets, with the return set for August 19, 2013. The Court found that Mary explained to Brendan that she was going to actively look for work in the United States and that Brendan provided her a letter of recommendation.. It thus inferred that Brendan or any reasonable person would have understood that she was going to the United States, perhaps on a visit, but if she had obtained work it was her intention to stay there. It further found that his desire to be close to his children led him to ask Mary to see about his immigration status so that he could return to the United States. He had, in these earlier years, been in possession of a green card, but so much time had passed since last he was in the United States that it had lapsed. And they had agreed that she would go to the Irish Pastoral Center in Boston to see if they couldn't get advice about her, as she was an American citizen sponsoring him in the United States. The Court did not credit her testimony that she made it clear that she was never coming back, that there was no hope for them to reconcile. It found that Brendan agreed to their travel to the United States for a visit and that he, fearing that she might not come back, was prepared to move to the United States. She and the children left for the United States on May 19th. Within a week, by May 28th, Mary had enrolled the school-aged children in schools on the Cape and had indicated that only she was to have any notice of that school enrollment and other school matters, in other words she excluded Brendan from knowing that the children had been enrolled. The Court also found that by July 11 Mary had found work as an administrative assistant and that her salary, together with social welfare money, would suffice for the maintenance of the children and herself. On that same day, Mary met with an attorney. After Mary explained to him that she and Brendan were deeply estranged, the attorney "advised her that it would not make sense for her to seek to sponsor [Brendan] on a visa, as they were not a marital unit, [and] were not in any way planning to live together." Afterwards, Mary informed Brendan that she was going to stay in the United States with the children, which led him to become "extremely upset." The Court found that Brendan "went to the airport hoping against hope that the children would return on the August 19 flight, but they did not.
Upon this set of facts, the Court concluded that the children's habitual
residence was Ireland and that the children were not wrongfully removed, because
Brendan gave consent to their travel to the United States for the purpose of this
visit up to August 19th. The Court observed, however, that the inquiry does not end there, and went on to analyze whether the children were "wrongfully retained in the United States . Relying on the First Circuit's decision in Nicolson, and also on case law from other Circuits, the Court concluded that Mary did not meet her burden of proving Brendan's consent, and that accordingly the children's retention was wrongful. It noted that the First Circuit has observed that consent is a fact-intensive inquiry "that focuses on [the petitioner]'s intent prior to the child's retention," and which "may be evinced by the petitioner's statements or conduct, which can be rather informal." Nicolson, 605 F.3d at 105. The district court concluded that this case fell closer to the disputes where consent was not present, such as the First Circuit precedent in Nicolson. The Court found particularly compelling the notion that Brendan may have consented to the children moving to the United States so long as he would also be able to join them. It ultimately became clear, however, that his joining the family would not be possible, especially considering that Mary would not sponsor a visa for him because their marriage had fallen apart. As a result, and taking into consideration that Brendan's consent was limited to that specific set of circumstances (i.e. his being able to join the children in the United States), the Court concluded that Mary had not carried her burden of proof for the consent exception. He consented to their visiting in the United States. His consent went so far as their remaining in the United States if he could be in the United States with them. But it did not find, by a fair preponderance of the evidence, that he ever consented to the situation that had arisen, that the children are here in the United States, but given the immigration laws of the United States, he could not be here with them.
In De Souza v Negri, 2014 WL 7330770 (D. Mass) on October 7, 2014, de Souza filed an emergency petition for the return of his five-year-old son, G.N.S., to Brazil. G.N.S. was the son of de Souza and Negri. They never married, but lived together and were in a relationship when G.N.S. was born in Brazil on January 20, 2009. According to de Souza, de Souza and Negri separated when G.N.S. was nine months old. Negri testified that de Souza struck her when she was three months pregnant with G.N.S. and, from that point forward during their relationship, he was abusive toward her. Negri also claimed that when G.N.S. was around three years old, she left the child in de Souza’s care while she went to the pharmacy and that when she returned she noticed bumps and bruises on G.N.S.’s legs. When she inquired about what happened, Negri claimed that de Souza told her that it was her responsibility to take care of the child, not his, because he had no patience. Negri also claimed that de Souza became more aggressive toward her and that she called the police on one occasion. According to her account, after the police returned de Souza to his house, a short time later he returned and assaulted her.. Negri also claimed that the child, G.N.S., observed de Souza assaulting her. Although she never filed for a protective order from de Souza in Brazil, in October 2014 she sought asylum here, on the basis of this abuse. De Souza still lived in Águia Branca. Negri lived in the same city. Both parents played a role in his care and upbringing. While at de Souza’s, G.N.S. lived with his father, his father’s parents and two sisters. While de Souza was working, de Souza’s mother would take care of him and G.N.S. would be in the care of de Souza’s aunt after school.. De Souza denied hitting G.N.S. or ever physically disciplining the child. De Souza’s aunt, who helped care for G.N .S., never observed any abuse or violence by de Souza.
The district court found that De Souza never gave Negri permission to remove G.N.S. from Brazil,. On or about December 11, 2013, Negri took G.N.S. after school one day and first went to another part of Brazil, Curitiba. Negri’s return was expected on January 24, 2014, but she did not return, and instead traveled to the United States. De Souza never gave Negri permission to travel with G.N.S. to the United States or, once here, to remain here. Once in the United States, de Souza had limited contact with G.N.S., having spoken to him only two or three times since his arrival here.
The district court found that G.N.S.’s place of habitual residence was Brazil. The child was born in Brazil and both his parents, who had custody of him, lived there in separate districts in Águia Branca until Negri brought him to this country. Moreover, G.N.S.’s removal from his habitual residence, without the consent of his father, de Souza, was in violation of de Souza’s custody rights. There was no serious dispute that both parents, Negri and de Souza had custodial rights over G.N.S. The Court found that de Souza was exercising his custodial rights at the time that Negri removed their child from Brazil. The Court credited the testimony that de Souza gave no consent to G.N.S.’s removal and that de Souza was exercising his custodial rights as evidenced by his regular care of the child in Brazil The Court also credited de Souza’s testimony that he did not give consent to Negri to remove G.N.S. from Brazil to the United States. This lack of consent was corroborated by the nature of Negri’s removal of the child, without advance notice to de Souza, and also by the fact that Negri traveled to the U.S. with G.N.S. under a passport that was not in his name. The court concluded that de Souza had shown, by a preponderance of the evidence, that Negri’s removal of G.N.S. from Brazil was wrongful.
The Court found that Respondents had not satisfied their burden of proving, by clear and convincing evidence, either an Article 13 or 20 defense. Addressing the issue of grave risk of harm, the Court concluded that the Respondents had failed to show credible evidence that G.N.S. was in grave risk of harm if he is returned to Brazil. The only proffered evidence offered regarding any risk of harm to G.N.S. was the testimony of Negri, his mother and one of the Respondents. She alleged that G.N.S. observed de Souza’s abuse of her and that, on one occasion, when he was a few months old, she returned to find G.N.S. with bruises and bumps and that de Souza had expressed frustration with caring for the child in her absence. She had no corroboration of this allegation. Her husband, Sinoura, testified that he had observed bruises on G.N.S., but did not provide a time frame for these observations and noted that he did not know how these bruises got there. There was credible and unrebutted evidence suggesting that G.N.S. has shown no signs of abuse. Whatever the state of de Souza and Negri’s relationship may have become, Respondents did not show that G.N.S., who spent a fair amount of time in the custody of de Souza and de Souza’s relatives before his removal from Brazil, was in grave risk of harm.
Similarly, the Respondents failed to meet their burden of proving an Article 20 defense that returning G.N.S. to Brazil would violate fundamental principles relating to the protection of human rights and fundamental freedoms. This defense requires a similarly high burden, which is appropriate where the Article 20 proffer arises out of the same nucleus of facts (i.e., that it would be inhumane to return G.N.S. where he has been subject to abuse by de Souza and witness to abuse of his mother by de Souza). Moreover, although Negri filed for asylum here on largely the same basis, (i.e., alleged abuse by de Souza), she did so, not when she first arrived in the United States with G.N.S. in January 2014, but soon after de Souza initiated this Hague Convention case. Accordingly, the petition for return was granted.
In Velasquez v Velasquez, 2014 WL 7272934 (E.D.Va.) on December 11, 2014, the Father filed a Verified Complaint and Petition fo a final judgment returning Father's children to El Salvador. On December 15, 2014, the Court held an expedited ex parte hearing. After the hearing the District Court found that on March 3, 2006, Father and Respondent Maria Teresa Funes De Velasquez were married in El Salvador. Two daughters were the product of this marital union: seven-year-old M.D.F. born in 2007, and five-year-old M.A.F. born in 2009. The family resided in El Salvador, where the daughters attended school. On November 18, 2013, Father, Mother, and the daughters traveled from El Salvador to Maryland with a scheduled return date of January 25, 2014. On February 27, 2014, Mother advised she was not returning to El Salvador but instead remaining in the United States with the two daughters. In response, Father eventually left the scene and returned to El Salvador without Mother and his two daughters. Father left to avoid further altercation but he did not give his consent for the daughters to stay with Mother in the United States. Since then, Father attempted to persuade Mother to return the daughters to El Salvador, but learned that Mother wanted to stay in the United States because of a new boyfriend and had no intent to return the daughters to El Salvador. Father later traveled to the United States on three separate occasions to persuade Mother to allow the daughters to return with him to El Salvador, but Mother refused, and remained, with no legal status, in the United States with the daughters and her boyfriend in Manassas, Virginia.
The district court observed that "provisional measures" under 22 U.S.C. 9004 are analogous to a temporary restraining order. Rule 65(b) of the Federal Rules of Civil Procedure governs temporary restraining orders. A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 20 (2008). After analyzing the four factors the court found that provisional measures were necessary and would therefore enter a Temporary Restraining Order prohibiting the removal of the children from Virginia. The Court also granted Father's request for a Preliminary Injunction hearing to determine whether the TRO should remain in effect until final disposition, and the Court set this hearing for a date certain. However, the Court would not consolidate the preliminary injunction hearing with the final trial on the merits, absent consent from Mother. See Alcala, 2014 WL 5506739, at *3 ("The Court anticipated that the Mother will require a reasonable amount of time to prepare for the hearing and retain counsel if desired."). The court denied the Father’s request to issue "a warrant seeking immediate physical custody of the Children, directing any United States Marshal[ ] or other law enforcement officer to bring the Children before this Court." It pointed out that "No court exercising jurisdiction of an action brought under ... this title may, under subsection (a) of this section, order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied."22 U.S.C. §9004(b). Under Va.Code § 20-146.32(A), Father may request that the Court "issue an ex parte order that the child be taken into immediate physical custody if the child is imminently likely to suffer serious physical harm or be removed from this Commonwealth." This extraordinary request is typically only granted by federal courts when a custody determination has already been made, or when a custody order was already in effect. See Alcala, 2014 WL 5506739, at *8. As was the case in Alcala, here, there was no prior custody determination and no custody order was in effect; Father implicitly acknowledged, based on his argument under El Salvadorian law, that both parents shared joint custody of the daughters. Moreover, there was no specific allegation in the Verified Complaint and Petition, or Petitioner's Brief, that the daughters were "imminently likely to suffer serious physical harm or be removed from this Commonwealth." Mere speculation is an insufficient basis for this Court to order the physical seizure of two minor children. Therefore, the Court denied Father's request to issue a warrant for physical custody of the daughters.
In Rehder v Rehder, 2014 WL 6982530 ( W.D. Wash) the Court granted Frank Rehder's petition for return of his son, ARDR, to Germany. Frank Rehder and Tanya Rehder met in England in 2007. Shortly after they started dating, Frank informed Tanya that in 2003 he had entered into an illegitimate marriage with a woman named Shuang Mu. Although still married to Shuang, he assured Tanya that he was in the process of obtaining a divorce. In April of 2008 Tanya decided to move to New York City to attend acting school. Frank followed her there in May of 2008. Frank showed Tanya what he represented to be divorce papers evidencing the end of his marriage to Shuang. Frank then proposed to Tanya and they married in New York City on May 19, 2008. In February 2009, Frank and Tanya moved back to England. Both parties concede that they argued frequently. Despite their discord, they conceived a child and decided to continue living and working together in England through August 2010. One month prior to the birth of their child, the couple moved to Leer, Germany to live with Frank's mother. Their son, ARDR, was born on September 10, 2010 in Germany. ARDR lived in Germany from the date of his birth until he was removed by his mother to Bellingham, Washington. On July 13, 2013, in a heated exchange over Google Chat, Frank had told Tanya to “use my card and f–––ing go to America and never come back.” A few days later, on July 18, 2013, he had sent her an email stating “Please respect that I will no further contact anymore. If [ARDR] will get older he will find a letter at my moms house why I cannot re-live [my other son's] story again in my life and decided this way. I will care for him, but it better ends with a big pain than keeps going on with pain and no end.”The email goes on to discuss Frank's poor health and the allocation of insurance money in the event of his death.
About a month after these communications, on August 19, 2013, Tanya and ARDR boarded a plane headed for Bellingham, Washington. Frank had knowledge of their departure. He gave Tanya permission to use his credit card to purchase the tickets and he drove her and the child to the airport. The parties disputed whether this was a permanent move: Tanya claimed that it was permanent and Frank consented to it, while Frank claimed it was a “relationship break” and that he allowed his son to go with his mother temporarily, until he and Tanya could work things out.
After arriving in Washington, in September 2013, the child began attending school and also began receiving health benefits. Tanya informed the school that she and the child had planned to return to Germany for three weeks in November 2013, but that they would come back to Washington in December. Tanya also informed the school that Frank eventually planned to join them in Washington. Emails exchanged between Tanya and Frank show that Tanya wished to stay in Washington, but that the couple was trying to work on their relationship. In October 2013, the couple applied for and began receiving benefits for their child from the German government. In connection with this application, Tanya indicated to the German government that she was at least a part-time resident of Germany. On November 16, 2013, Tanya and the child returned to Germany. They stayed with Frank and it appeared that the couple mended their relationship during this period. On December 5, 2013, Tanya and the child returned to Washington. On December 11, 2013, Tanya emailed Frank and stated “I do love and care for you and miss you and do feel it's right to move forward together.”She also indicated that she was looking into IT jobs and gyms for him here in Washington. On December 16, 2013, Tanya emailed Frank again and stated “I do want to be together with you ... I do also miss you and love you very much” and that their son “misses you tons.” She also advised the child's school that “things went really well in Germany,” that Frank planned to join them in Washington, and that she and the child might be traveling again to Europe in February or March of 2014. Frank flew to Washington on December 31, 2013. He stayed with Tanya and their child until January 11, 2014. During this trip, Frank signed a form that allowed Tanya to travel with their child between Washington and Canada. After returning to Germany, Frank continued to engage in Skype calls with Tanya and his son. However, towards the end of January 2014, the couple's relationship soured yet again. It became clear that Frank would not be joining them in Washington and that Tanya had no intent of returning to Germany or returning their child to Germany. On February 5, 2014, Frank sent an email to the child's school informing the administration that he has shared custody and that his child was being wrongfully retained by Tanya in the United States. On February 19, 2014, Frank emailed Tanya and expressly stated that he never consented to their son staying in Washington permanently. In March, 2014, Frank attended a parent-teacher conference call relating to his son's schooling. On April 8, 2014, Frank attempted to visit his son in Washington, but was stopped at the Canadian border. The border police contacted Tanya and she claimed that Frank was abusive. On May 16, 2014, Tanya filed a petition for invalidity of marriage in Whatcom County and as part of that case sought a custody determination regarding ARDR.
On August 13, 2014, Frank filed his Hague petition with this court.
The district court found that Germany was the child’s habitual residence. ARDR was born in Germany, his father's native country, and lived there from the date of his birth, September 10, 2010, until at least August 2013. His day-to-day activities for the majority of his life, therefore, occurred in Germany, not the United States.
The court rejected Respondents argument that Frank consented to or acquiesced in a change of the child's habitual residence to the United States. Where a child already has a well-established habitual residence, simple consent to his presence in another forum is not usually enough to shift it there. Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration. Although Frank made statements such as “use my card and f–––ing go to America and never come back” and “please respect that I will no further contact anymore,” it appeared that these statements were made in fits of anger and not meant literally. Based upon the court's review of the parties' multiple email communications, Google chats and personal declarations, both mother and father appeared to have a penchant for the dramatic. More importantly, the parties' conduct revealed that there was no mutual settled intent to abandon Germany as the child's habitual residence. The parties continued to communicate after Tanya and the child's initial departure to Washington in August 2013 and they appeared to be working on their relationship. Although the child started school in Washington and began receiving health benefits here, he also began receiving benefits in Germany as well. He was registered as at least a part-time German resident until May 2014. Tanya and the child returned to Germany in November 2013 and stayed with Frank for three weeks. Frank then visited them in Washington the following month. The extensive communications between the mother and father, as well as communications with the child's school, revealed that there was some question as to whether ARDR would withdraw from school and return to Europe or whether Frank would attempt to join them here in Washington. It was not until late January 2014, that it became clear that Tanya intended to stay here indefinitely and that she intended to keep her son here as well. Thus, the court found that Frank did not consent to or acquiesce in a change in the child's habitual residence. The Court observed that to establish a “right of custody” under German law, the petitioner must show that he was married to the child's mother at the time of the child's birth. See German Civil Code § 1626a. Otherwise, he must meet one of the elements of the German Civil Code regarding “parental custody of parents who are not married to one another..German Civil Code § 1626a. The Court found, based on expert testimony, that petitioner failed to present any evidence that he had satisfied any of these alternative methods of obtaining custody rights. The Court found that German law treats a bigamous marriage as effective until it is dissolved by a court decision. Once it is dissolved, the effect is ex nunc (i.e., moving forward). The experts opinion was that “German law would therefore treat the 2nd marriage as an effective marriage. The child would be regarded as a legitimate child born within the marriage.” Additionally, the expert stated that the invalidity of the marriage under New York law would not impact her conclusion. She explained that even if New York law considered bigamous marriages as absolutely void ab initio, German law would still “recognize and give effect to such a marriage with regard to the child custody issue, although the marriage itself would be considered to be void ab initio Based upon this testimony the court found that Frank Rehder had “rights of custody” under German law.
The evidence showed that Frank agreed to allow the child to reside in this forum while he and Tanya worked on their relationship. His signature on a form allowing Tanya to travel with the child across the Canadian border did not change this conclusion. The need for his permission suggested the opposite—that he had custody rights and was exercising them. The evidence showed that the parties had discussed settling together in Washington, returning to Germany, or possibly settling in the UK. As long as these communications were ongoing, Tanya's retention of ARDR in this forum was not “wrongful.” It became wrongful in late January 2014, when she announced, in derogation of Frank's shared custody rights (including his right to participate in decisions regarding the child's residence and upbringing) that she would remain in Washington with ARDR. Friedrich II held that if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.Friedrich II, 78 F.3d at 1066. Once a court determines that the parent exercised custody rights in any manner, the court should stop—completely avoiding the question whether the parent exercised the custody rights well or badly. Here, the evidence did not show a “clear and unequivocal” abandonment of the child. To the contrary, it appeared that Frank Rehder had made efforts to maintain a relationship with his son and exercised his custody rights as soon as it became clear that Tanya intended to dissolve her relationship with Frank and to keep ARDR in Washington indefinitely.
In Marquez v Castillo, 2014 WL 6883134 ( M.D. Florida) Petitioner and Respondent married in Cuba on or about April 6, 2012. Respondent and J.V.O. moved to Mexico to live with Petitioner on or about December 5, 2012. Respondent requested that Petitioner file the appropriate papers for her to bring her other two children to live in Mexico. Petitioner, Respondent, and J.V.O. lived together in Petitioner's family home until October 2013. J.V.O. spent ten months in Mexico living with Petitioner and Respondent prior to arriving in the United States. On or about October 4, 2013, Respondent left Mexico with J.V.O. without warning to or knowledge of Petitioner. Several days later, the parties began communicating by email. However, the communication stopped and Petitioner has not seen J.V.O. since Respondent removed him from Mexico. Petitioner was J.V.O.'s natural father. Petitioner was born in Mexico, lived in Mexico for his entire life, and was a Mexican citizen. Respondent was J.V.O.'s natural mother. Respondent was born in Cuba and was a Cuban citizen. Respondent lived in Cuba until she moved to Mexico. Her current address was in Tampa, Florida.
The district court found that J.V.O. was habitually resident in Mexico at the time of his removal adopting the methodology of Seaman v. Peterson, 762 F.Supp.2d 1363, 1377 (M.D.Ga.2011)aff'd,766 F.3d 1252 (11th Cir.2014). First, the Court had to determine “[w]hether there [was] a settled intention to abandon a prior habitual residence....”Ruiz v. Tenorio, 392 F.3d 1247, 1252–53 (11th Cir.2004). Courts recognize that where the situation involves a very young child, the shared intent of the parents in determining the residence of their child is of primary concern. The Court was satisfied that Respondent had a settled purpose to abandon Cuba as her and the child's primary residence and to reside permanently in Mexico with Petitioner and the minor child. Respondent presented evidence that she maintained a home in her name in Cuba; the minor child resided in Cuba for over a year prior to arriving in Mexico; and she had two minor children in Cuba. However, the Respondent did agree that she began the process to have her other minor children move to Mexico, that she intended to live with Petitioner in Mexico as a family with J.V.O., and that the Petitioner began construction of additional space in his home to accommodate her other minor children. She also insisted that she wanted to find work while in Mexico. The Court next found there was “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized J.V.O. lived in Mexico for approximately ten months with Petitioner, Respondent and Petitioner's extended family. Respondent was his primary caretaker. The child was not registered in school and he traveled to Cuba on a few occasions with Respondent to visit family. Nonetheless, Respondent did not dispute that it was her overall intention to live with Petitioner in Mexico as a family, in spite of her trips to Cuba. The Court found that J.V.O.'s country of habitual residence, prior to his removal to the United States, was Mexico. Mexico was the last country where the parties intended to reside together with the child. Further, when Respondent traveled from Cuba to Mexico, she intended to bring her other children to Mexico to live with her and Petitioner. Respondent also came to Mexico intending to obtain work. The Court determined that petitioner had rights of custody under the laws Mexico. The court examined whether the rights conferred on the petitioner by the doctrine of patria potestas are rights of custody and found that under the the Civil Code of the State of Mexico Petitioner established that he had a custody right to J.V.O. by operation of law under the doctrine of patria potestas. The Court found that Petitioner had custody rights to J.V.O. at the time of removal and that the Respondent's removal of J.V.O. from Mexico to the United States was in violation of Petitioner's custody rights under Mexican law. It also determined that he exercised his custody rights at the time of the removal. Consequently, Respondent's removal was “wrongful.”
Respondent asserted that there was a grave risk of physical or psychological harm to J.V.O. if he was returned to Mexico. She asserted that she feared for her life if she returned to Mexico, that the Petitioner's residence was in a dangerous neighborhood with active drug activity, one of his nephews was a drug addict who consumes drugs outside of the home, and that Petitioner was very controlling and would not allow her to leave the home without an escort. The Court observed that this defense requires the alleged physical or psychological harm to be “a great deal more than minimal.” Only severe potential harm to the child will support this defense. The harm must be greater than what is normally expected when taking a child away from one parent and passing the child to another parent. The court found that petitioner did not establish this defense and granted the petition.
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.
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.
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.
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.
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.
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.
