In Gwiazdowski v. Gwiazdowska, 2015 WL 1514436 (E.D.N.Y.) on February 11, 2014, Cezary Gwiazdowski ("Cezary") brought a petition pursuant to the Hague Convention for the return to Poland of his two children, K.G. and M.G., who resided in the United States with Anetta Gwiazdowska ("Anetta"), his wife and the biological mother of the two children, since April 2011.
The District Court found that the petitioner made out a prima facie case for return and addressed the Article 12 defense in its opinion. It observed that under Article 12 of the Hague Convention, if a Hague Convention petition is filed more than one year after the wrongful removal, the Court "shall ... order the return of the child, unless it is demonstrated that the child is now settled in its new environment." The respondent bears the burden of establishing this defense by a preponderance of the evidence. 22 U.S.C. §9003(e)(2)(B). Though the Convention does not define the term "settled," the Second Circuit has stated that the term "should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir.2012).
The Court held a hearing, and with consent from both parties, the Court interviewed K.G. (age 10) and M.G. (age 8) in camera outside of the presence of the parties and their respective counsel. It observed that this procedure "is consistent with those adopted by district courts in Hague Convention cases." Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 n. 1 (E.D.N.Y.2010).
The district court found that in July 2003, the couple married in a Polish Catholic church in Brooklyn, New York, a choice they made so that Anetta's mother, who lived in Maspeth, New York, could attend the wedding. The couple returned to Elblag, Poland soon afterwards and had two sons, K.G., born in 2004, and M.G., born in 2008. On April 11, 2011, Anetta left Poland with the children and moved into her mother's home in Maspeth. Anetta did not inform Cezary that she was taking the children or obtain his consent to do so. For the first several months following her departure, Cezary held out hope that she would return to Poland and resume their life together, though the couple spoke infrequently on the phone. However, in early 2012, Anetta informed Cezary that she did not intend to return to Poland and wanted to file for divorce. Cezary traveled to New York in March 2012 to speak to her and the children in person. When Anetta refused to meet with him or let him speak with the children, Cezary consulted a lawyer and filed a custody petition in Family Court. The Family Court proceedings apparently languished until late 2013, when Anetta filed her own custody petition in Family Court.. During the pendency of the Family Court proceedings, Cezary was permitted to speak with Anetta and the children three times a week over Skype, and was permitted to occasionally visit the children in the United States. Since March 2012, he visited the children approximately five times a year. On June 10, 2014, the Department of State sent a letter to the Family Court informing the court that Cezary had filed an application with the Department of State for the return of the children. The letter further informed the Family Court that, under Article 16 of the Hague Convention, the court should defer decision on the merits of rights of custody until Cezary's Hague Convention petition was
adjudicated. See Hague Convention art. 16 ("After receiving notice of a wrongful
removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention...."). Despite this letter, on December 17, 2014, the Family Court entered a final order in Anetta's custody proceeding. The order granted legal and physical custody of the children to Anetta, and granted Cezary visitation with the children on a schedule set by the Family Court, subject to the condition that "[Cezary] must not remove the children outside and beyond the United States" and that "[t]he children's passports are to remain in the possession of [Anetta]." In February 2015, Cezary traveled to the United States and went on vacation with the children to the Pocono Mountains in Pennsylvania. Cezary plans to return to the United States in April 2015 for M.G.'s First Holy Communion. When he is in Poland, Cezary speaks with his children on Skype every Monday, Wednesday, and Friday, though he complained that "maybe 30 percent of [the time] they are not available.”
The Court concluded that Anetta's removal of the children in April 2011 was wrongful under the Hague Convention. The children were habitually resident in Poland at the time of the removal. Cezary was exercising his custody rights at that time, since Cezary and Anetta lived together and had joint custody of the children at the time of removal. Anetta's removal of the children appeared to have been in breach of Cezary's custody rights under Polish law. See In re Skrodzki, 642 F.Supp.2d 108, 115 (E.D.N.Y.2007).
However, the Court found that Anetta established that the children are now settled in the United States. The petition was filed almost three years after Anetta's removal of the children from Poland, and the "settled" defense was available to Anetta. See Hague Convention, art. 12. It observed that to determine whether a child a settled, a district court must consider a variety of factors, including:(1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Lozano, 697 F.3d at 57.
The Court addressed these factors in turn. If noted that the stability of a child's residence "plays a significant role in the 'settled' inquiry." In re D.T.J., 956 F.Supp.2d 523, 535 (S.D.N.Y.2013). K.G. and M.G. lived at Anetta's mother's house since moving to the United States and felt comfortable in their home environment. The Court concluded that the children had a stable and happy home in New York. Cezary acknowledged that the children had a group of friends in school here, a fact confirmed by K.G. and M.G. during the in camera interview. By contrast, the children did not appear to have significant attachments to Poland. Further, while the children had several relatives who lived in Poland, Anetta testified that most of their family members live eight hours from Elblag by train and Cezary did not dispute this fact. It was therefore unclear how much contact the children would have with these family members even if they lived with Cezary in Elblag. K.G. and M.G. attended Saint Stanislaus Kostka School in Maspeth, New York, since August 2011. The children's school records demonstrated that they were in regular attendance and received good grades. In addition, both parents acknowledged that K.G. and M.G. regularly attended church in the United States. K.G. received his First Holy Communion in 2014, while M.G. was scheduled to receive his First Holy Communion in April. K.G., who was 10 years old, and M.G., who was 8, were old enough to form meaningful attachments to their new environment. See In re Robinson, 983 F.Supp. 1339, 1345 (D.Colo.1997) (concluding that 10-year-old and 6-year-old "are old enough to allow meaningful connections to the new environment to evolve ...[while] children of a very young age are not"). Anetta was not currently employed in the United States but was attending university and studying to receive a medical license in the United States. It was unclear whether Anetta would be able to find employment once she completed her studies or how much she would earn if she does. However, Anetta testified that her mother and stepfather, who collectively earned approximately $200,000 a year, significantly contributed towards the children's expenses. As the Second Circuit has noted, "[t]he importance of a child's immigration status [for the 'settled' defense] will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits." Lozano, 697 F.3d at 57. Anetta and the children were currently residing in the United States on F1 non-immigrant visas, which allowed them to remain in the United States as long as Anetta remained in school. The fact that the children were here legally was a positive factor in the "settled" analysis. See Demaj v. Sakaj, No. 3:09-CV-255, 2013 WL 1131418, at *23 (D.Conn. Mar. 18, 2013) (concluding that mother and children's approval for nonimmigrant U visas supported the mother's "settled" defense). However, the Court was unclear whether Anetta would be able to obtain legal residence in the United States when her student visa ends, and Anetta presented no evidence of how she intended to pursue legal status upon completion of her studies. After weighing all of these factors, the Court concluded that Anetta met her burden of demonstrating by a preponderance of the evidence that the children were settled in their current environment. The Court found that the elements of the Article 12 defense had been met.
The Court also considered whether it should exercise its discretion to repatriate K.G. and M.G. notwithstanding that Anetta has established an affirmative defense under the Hague Convention. See Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention."). Since there was no evidence that Anetta's relocation to the United States was motivated by a desire to remove the children to a jurisdiction more favorable to her custody claims, the Court saw no reason to do so. See In re D.T.J., 956 F.Supp.2d at 549 (declining to exercise discretion to remove children, notwithstanding affirmative defense, because there was no evidence that mother removed children to obtain a more favorable custody ruling). Cezary's petition was denied.
In Mendez v May, 2015 WL 143965 (D. Mass., 2015) the district court granted Federico Mendez’s petition for return of C.F.F.M. to Argentina from Massachusetts. Mr. Mendez was born and raised in Argentina. He was a citizen of Argentina. Ms. May, the respondent, was a United States citizen and a permanent resident of Argentina. They settled in Buenos Aires, Argentina in 2006. C.F.F.M. was born in Buenos Aires on December 3, 2007. The birth certificate listed Ms. May and Mr. Mendez as the child’s parents. Ms. May and Mr. Mendez lived with the child in an apartment on Peru Street from C.F.F.M.’s birth until 2009. The child was a citizen of both Argentina and the United States and held passports from both countries. On March 12, 2008, Ms. May and Mr. Mendez executed a travel authorization that allowed either parent to travel internationally with the child. This authorization allowed the child to leave the country with only one parent, with the authorization attesting to the consent of the other parent. This travel authorization was open-ended. It was effective until the child turned eighteen. Ms. May and Mr. Mendez ended their romantic relationship in the first half of 2009. After the relationship ended, Ms. May and the child continued to reside in the Peru Street apartment, while Mr. Mendez resided elsewhere in Buenos Aires. On July 1, 2009, the parties, after a mediation, reached an agreement on child custody and support issues. The 2009 agreement provided, in part, that the child would reside with Ms. May and that Mr. Mendez would have weekly visitation during which he would pick the child up on Thursday evenings and return him on Sunday evenings. The agreement allowed Ms. May to travel to the United States for up to fifteen days during the Argentine winter and for up to forty-five days during the Argentine summer. The 2009 agreement required Mr. Mendez to grant travel authorizations as necessary to permit Ms. May to travel out of Argentina pursuant to the agreement. The child attended the same school in Argentina from 2010 through the end of the Argentine school year in December 2013.
In November of 2011, an altercation occurred. The child was present for this altercation. Ms. May testified that, during the argument, Mr. Mendez attempted to push her out of his car while it was moving. Mr. Mendez denied doing this and testified that Ms. May tried to jump out of the moving car with the child. In February 2011, Mr. Mendez revoked the 2008 travel authorization that allowed the child to leave Argentina with Ms. May. Thereafter, Mr. Mendez and Ms. May executed trip-specific authorizations for each time Ms. May traveled abroad with the child. In December 2012, Mr. Mendez and Ms. May executed a new agreement regulating their relationship as parents. Under the 2012 agreement, Ms. May maintained custody of the child. The 2012 agreement, however, made two reductions in Mr. Mendez’s visitation schedule. The 2012 agreement allowed Ms. May to travel abroad with the child up to forty-five days each year and required Mr. Mendez to grant his consent as needed for these trips on a trip-by-trip basis. In the spring of 2013, Ms. May began to consider leaving Argentina to pursue work in other countries due to the poor economy and decline in tourism in Argentina. At this time, Ms. May discussed with Mr. Mendez her interest in relocating outside of Argentina with the child. In an August 13, 2013 Skype conversation, Ms. May and Mr. Mendez discussed relocating, and the parties discussed that Ms. May “just got a job” and was “moving in 3 weeks.” No agreement was reached at this time. They continued discussing the issue, however, meeting in person at least three times at restaurants in August and September before Ms. May left Argentina in the beginning of September. These meetings culminated in a meeting in the beginning of September at which Mr. Mendez said C.F.F.M. could move to Boston after the end of the Argentinean school year in December. In this meeting, Ms. May and Mr. Mendez also discussed the child spending February, April, and summer vacations (on the American school calendar) with Mr. Mendez.. At this meeting in early September, Ms. May and Mr. Mendez told C.F.F.M. of these plans. Both Mr. Mendez and Ms. May understood at this time that the child could not leave the country without Mr. Mendez’s written permission or a court order.
After these discussions, Ms. May left Argentina on September 9th or 10th to begin her job in Boston. During the period after Ms. May left Argentina until the end of October, the child resided with Ms. May’s mother, who cared for the child. In an email dated September 30, 2013, Ms. May asked Mr. Mendez if he would “be ok with [the child] flying to the U.S. with me after his birthday (before the holidays)?” Mr. Mendez responded that he “would prefer if you can wait until he [the child] moves to you by the end of the year,” and stated that he “really would like to spend the most amount of time with him [the child] before he moves.” After exchanging several emails which addressed this issue, Mr. Mendez wrote that he needed to consider different arrangements for the child to travel to the United States, but “[f]or now, what is sure is January the 8th,” indicating a date on which he would allow the child to travel. However, Mr. Mendez did not provide the required authorization despite his statement. In a Skype conversation on October 23, 2013, Mr. Mendez acknowledged his prior statements that the child could relocate to the United States, writing to Ms. May “[you] are still afraid ... [that Mr. Mendez had not decided about relocation]. I have already made my mind ... and comunicated [sic][it] to you on [sic] the restaurant that time.”. The “restaurant” was a reference to the meeting in September when Mr. Mendez stated that the child could relocate to the United States with Ms. May. In this same conversation, Mr. Mendez also made clear that there were still unresolved issues relating to relocation, telling Ms. May that “we will have to agree on this somehow.”When Ms. May asked him if he would sign a document relating to the child’s relocation, Mr. Mendez responded, “I do not know ... what document [do] you want me to sign?” With these statements and others, Mr. Mendez was using the fact that a signed authorization was required for the child to leave Argentina as leverage in his negotiations with Ms. May. He was also withholding his agreement by not providing the travel authorization. There were no further cooperative conversations towards resolving the issues that divided the parties after the October 23, 2013 email.
After October 23, 2013, Mr. Mendez initiated several proceedings. These included numerous criminal proceedings for denial of visitation against Ms. May and Ms. May’s mother. He also filed an emergency civil proceeding to obtain temporary custody of the child while Ms. May was in the United States. These filings contained numerous false statements, including that Ms. May “went to live in the United States of America, without any notice” and “does not give her child any type of support or assistance.” Ms. May returned to Argentina on November 28, 2013, and remained there until December 16, 2013. In response to the proceeding initiated by Mr. Mendez to obtain temporary custody, he and Ms. May attended a mediation on December 11 or 12, 2013. At this point, Ms. May initiated a proceeding to obtain authorization to travel abroad for forty-five days pursuant to the 2012 agreement. On November 28, 2013, due to the various proceedings the parties had initiated, the judge presiding over the parties’ family law matters prohibited the child from leaving Argentina and ordered immigration authorities in Argentina to prevent him from being taken from the country. Ms. May was aware of that order by December. At some point in late December or early January, Ms. May returned to the United States. She returned to Argentina again on February 9, 2014. The civil judge presiding over the parties’ family law matters held a hearing on February 10, 2014 to address Mr. Mendez’s temporary custody proceeding. At this hearing, the presiding judge also addressed Ms. May’s filing to obtain the travel authorization. At the hearing, the judge informed the parties that, if they could not come to agreement, he would make a decision before Ms. May’s scheduled departure from Argentina on February 15, 2014. The parties did meet in a restaurant after the hearing, although they could not reach agreement on the travel authorization or any other matter., Ms. May left Buenos Aires with the child and her mother on February 14, 2014. Ms. May denied having received a decision from the civil judge prior to leaving Buenos Aires on February 14th. On February 14th, the civil judge released a decision denying Ms. May’s request for travel authorization. The Court found that Ms. May knew of the Argentine court’s Order denying her request for travel authorization before she left Buenos Aires. Ms. May went to Brazil, and then Paraguay and flew out of Asuncion, Paraguay to the United States on February 16, 2014. At the time Ms. May left Argentina, she was aware that she needed a signed writing from Mr. Mendez or a court order to leave the country with the child. She was also aware of the court order of November 28th, barring the child’s exit from the country. Mr. Mendez learned that the child was no longer in Argentina when the child did not show up for his first day of school during the first week of March. Mr. Mendez discovered Ms. May’s work phone number and called Ms. May at her office in Boston. At that time, he confirmed that the child was in Boston. Upon learning that the child had been removed from Argentina, Mr. Mendez, on April 11, 2014, made a filing with the central authority in Argentina to pursue remedies under the Hague Convention. He also filed a criminal complaint for child abduction on March 7, 2014 with the Argentine police. That offense carries a minimum mandatory sentence of five years and a maximum sentence of fifteen years, if convicted. Since February 2014, the child resided in Roslindale, a neighborhood in Boston, and attended public school in Boston.
On July 15, 2014, the Argentine civil judge who presided over Ms. May and Mr. Mendez’s family court proceedings issued an opinion that the child was wrongfully removed from Argentina under the Hague Convention and that the child’s habitual residence at the time of the removal was Argentina.
It was undisputed that Argentina was the habitual residence of the child between his birth until September 2013. The child was born in Buenos Aires and lived in the city his entire life, initially with both parents and later with his mother, subject to visitation by his father. After September and up to and including the time of removal, Mr. Mendez established Argentina as the habitual residence of the child for at least two reasons. First, changing the child’s habitual residence required both parents to form a shared intent to abandon Argentina and to adopt the United States as the child’s habitual residence. Although the parties came close to forming such a shared intent, they did not actually do so. Mr. Mendez stated his agreement to the child moving to the United States. As a matter of fact, however, he had not agreed, yet, and he had not yet formed the intent to change the child’s habitual residence. Both Ms. May and Mr. Mendez each knew that the child could not move, or even leave Argentina, without a signed writing from Mr. Mendez. The parties’ discussions (orally and in writing) were replete with references to the necessary writing. Until Mr. Mendez signed the necessary authorization to remove the child from Argentina, the agreement, on the present facts, was not complete. Put another way, while Mr. Mendez was saying “yes,” he was not taking the step necessary to give meaning to the statement. He was not taking that last step because he had not formed the intent to actually have the child abandon Argentina as the child’s habitual residence and make the United States the new habitual residence. Second, even if Mr. Mendez and Ms. May had formed a shared intent for the child to abandon Argentina as his habitual residence and adopt the United States as the child’s habitual residence effective January 8, 2014, in light of the revocation of the agreement before the child left Argentina, the law, in such circumstances, does not recognize a change in the child’s habitual residence. Although the analysis of habitual residence begins with the issue of shared parental intent, Sanchez–Londoño, 752 F.3d at 540, shared intent does not completely resolve the question. The First Circuit has noted “ ‘a child can lose its habitual attachment to a place even without a parent’s consent ... if the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.’”Darin, 746 F.3d at 11–12 (quoting Mozes, 239 F.3d at 1081). The Ninth Circuit, in Mozes v. Mozes, a case cited extensively by the First Circuit, held that “[w]hile the decision to alter a child’s habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone .... it requires an actual ‘change in geography.’ ”Mozes, 239 F.3d at 1078 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir.1993)). No such change occurred here. The parties cited no case—and the Court was aware of no case—where the First Circuit has found parental intent to be sufficient to change a child’s habitual residence without the child’s presence in the new country prior to removal or retention.
The district court pointed out that the Supreme Court in Abbott v. Abbott, 560 U.S. 1, 15, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), held that a ne exeat right—the right of a parent to consent before a child is removed from the country—is a right of custody as that term is defined by the Hague Convention. This holding in Abbott disposed of the right of custody issue in this case. Article 264 of the Argentinean Civil Code states that in the case of a child born out of wedlock who is acknowledged by both parents “the express consent of both parents is required for the following acts: ... [to][a]uthorize the child to leave the Republic.” This is so regardless of the vesting of guardianship in one parent. Both parties’ experts testified that, under Argentinean law, a child born out of wedlock who has been acknowledged by his or her father cannot relocate outside of Argentina without the father’s permission or a court order.
Mr. Mendez possessed the power to prevent the child from permanently residing outside of Argentina, and, therefore, he had the requisite custody rights to establish wrongful removal under the Hague Convention. The district court observed that courts “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.”Friedrich, 78 F.3d at 1065. Mr. Mendez was actively involved in the upbringing of the child, maintaining regular visitation with the child and being involved with his schooling, health, and general well-being. In addition, he participated actively in the discussions in 2013 regarding relocation and consistently and actively asserted his rights in those discussions. No more is needed to establish exercise of custody rights under the Hague Convention.
Ms. May argued that Mr. Mendez agreed to permit the child to relocate in a meeting in the restaurant before Ms. May left for Boston and that consent, once given, may not be revoked. The evidence did establish that Mr. Mendez said in September that the child could relocate in January. But the parties did not reach agreement—Mr. Mendez had neither signed the necessary travel authorization nor taken the child from Argentina to the United States. Mr. Mendez’s consent was incomplete in the absence of either of those two actions. Put another way, Mr. Mendez did not actually consent. For these reasons, the Court found that Ms. May had not established by a preponderance of the evidence that Mr. Mendez consented to the removal of the child to relocate to the United States.
Ms. May argued that returning the child to Argentina presented a grave risk of psychological harm and would place the child in an intolerable situation. She argued that because of the criminal child abduction complaint filed by Mr. Mendez against her in Argentina—which carries a penalty of imprisonment for five to fifteen years—there was a grave risk that she would be separated from the child for an extended period of time. She supported this argument with the testimony of Dr. Scott Andrews, a child psychologist who offered his opinion that severing the child’s relationships with Ms. May, Ms. May’s fiancé, and Ms. May’s mother would expose the child to a grave risk of psychological harm. The court found that Ms. May did not establish that she was unable to return to the country. There was no evidence that she has been formally charged with a criminal offense related to removing the child from Argentina, as distinct from Mr. Mendez lodging a complaint. Mr. Mendez’s expert provided uncontroverted testimony that, in her many years of experience with Hague Convention proceedings in Argentina, she was unaware of any parent who had been actually prosecuted for kidnapping or child abduction after removing a child from Argentina.
Ms. May argued that, if returned, the child would be placed in an intolerable situation. She argued that the child will suffer racist treatment if returned to Argentina and testified about several comments and situations occurring in Argentina that displayed racial bigotry or insensitivity, such as schoolmate telling the child that he could not go to a birthday party because he was black and the use of “blackface” in public school plays. The Court held that a small number of unrelated, nonviolent incidents of bigoted speech or behavior—several of which were attributed to small children—does not rise to the level of an intolerable situation, considering that the exceptions to return are to be narrowly construed. Nnothing in the record suggested that these incidents were of such significance to Ms. May that they caused her to remove the child from Argentina for that reason.
Ms. May argued that an intolerable situation would arise from the media coverage of this case in Argentina. There was testimony that Mr. Mendez petitioned the Argentine government to provide financial assistance in prosecuting his Hague petition. Mr. Mendez testified that his online petition was widely circulated, and, in furtherance of his petition, he gave three interviews to television journalists and three interviews to print journalists. The evidence also suggested social media or internet interest in this case in Argentina. The court held that this evidence failed to establish an intolerable situation. Nothing about the evidence suggested that the public attention would continue after the child’s return or that any such media attention would cause any adverse consequences to the child directly or indirectly. Ms. May herself placed the child in the public eye in a June 2012 article she authored entitled “Zen and the Art of Being Trapped in a Foreign Country,” which appeared in an online magazine and described some of the travails of the parties’ relationship.
Ms. May argued that, if returned, the child would placed in an intolerable situation due to Mr. Mendez’s prior verbal abuse and harassment of Ms. May. There court found that there were neither allegations of, nor evidence of, verbal or physical abuse of the child by Mr. Mendez. There was some evidence of Mr. Mendez mistreating Ms. May with physical abuse on two occasions and verbal abuse on other occasions, with some of the verbal abuse and one instance of physical abuse occurring in front of the child. The physical abuse alleged occurred twice over the course of seven years, with both incidents occurring more than two years prior to removal. The court noted that at this point, occasions for interaction of the parties in front of the child are limited, and thus the opportunities for harm to come to the child by observing abuse of Ms. May are similarly limited. Ms. May did not establish that return would place the child in an intolerable situation. The Court found that Ms. May has not established by clear and convincing evidence that the child would be exposed to a grave risk of psychological harm or an intolerable situation if returned to Argentina.
In Pliego v Hayes, 2015 WL 269207 (W.D.Ky.) Amanda Leigh Hayes and Mario Luis Gonzalez Pliego were the parents of a minor child who was the subject of the litigation. In 2005, Pliego became a Spanish diplomat, and in 2007, Hayes moved to Madrid, Spain, where the parties established a civil union.The parties were married in 2009 in Barcelona, Spain, and were posted in Indonesia beginning August 1, 2009. Hayes became pregnant in 2010. The parties agreed that Hayes would have the child in Kentucky to receive better medical care and be with her extended family.
The child was born on March 4, 2011 in Kentucky; both parties were present for the birth. The parties applied for a Spanish passport and a Spanish diplomatic
passport for the child, both of which were granted. The child was a dual citizen of
the United States and of Spain. When the child was four weeks old and cleared to
fly, Hayes and the child returned to Indonesia, where they lived until the family
was posted in Ankara, Turkey. The child was currently 44 months old. The child was in Kentucky for the first month of his life, before returning to Indonesia in April
of 2011. The child was in Indonesia for four months, spending most of August of
2011 in Spain on vacation. The child returned to Indonesia and remained there
until June of 2012, with the exception of vacations to Australia, New Zealand,
Bali, Laos, Thailand, and Singapore. Aside from vacations, the child lived in
Indonesia for 15 months (excluding the one-month vacation to Spain, the child was
in Indonesia for 14 months). In July of 2012, the child moved to Turkey. The child
spent most of September of 2012 and May of 2013 on trips to Kentucky. With the
additional exception of two week-long trips to Spain, the child was in Turkey for
21 months (excluding the two trips to Kentucky, the child was in Turkey for 19
months).
Hayes and Pliego agreed that Hayes and the child would travel to Kentucky to
visit Hayes's family in April of 2014. Hayes and the child left Turkey on April 6, 2014, and planned to return on May 4, 2014. Pliego registered a letter with the Spanish Embassy authorizing his family's trip to the United States, informing the Embassy that they would return at the "end of April 2014/beginning of the month of May 2014. On April 26, 2014, after Hayes arrived in Kentucky, she told Pliego that she would not be returning and intended to keep the child with her in Kentucky. Hayes conceded that Pliego did not consent to the child remaining in Kentucky. Hayes filed for divorce, custody, and for an emergency restraining order in Christian County, Kentucky, while Pliego iled for divorce and custody in Spain.
Hayes testified that Pliego was abusive both to her and to the child, while Pliego denied the majority of such allegations. The district court observed that the United States Supreme Court recognizes a psychotherapist-patient privilege. See 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...." The Court noted that the privilege could be waived, but declined to establish the parameters of waiver. The Sixth Circuit has noted that "the issue of waiver of the psychotherapist-patient privilege has rarely been litigated in this circuit" and that "the precise standard of review for that issue is unclear." The Court found that Pliego waived his privilege by putting his mental health at issue. He denied bruising his wife or child during his testimony, and he called a psychiatrist to testify as to his mental health and propensity for violence. Thus, the Court considered statements made by both Hayes and Pliego in the course of their therapy sessions with Gerger.
The Court held it was bound by Sixth Circuit precedent. See Robert, 507
F.3d 981 (6th Cir.2007) (holding that the district court should have focused
solely on the past experiences of the child, not the intentions of the parents, in
determining habitual residence). The Court must examine where, at the time of
removal, the child was present long enough to allow acclimatization, and where
this presence has a degree of settled purpose from the child's perspective. Thus, the Court helds that the child did not establish a habitual residence in Spain. Despite being born in Kentucky and possessing American citizenship, the child was only present in the United States for approximately three months total before his removal from Turkey. Thus, the United States was not the child's habitual residence. The travel logs showed that up until the time of his removal, the child lived in Turkey consistently for approximately 21 months. At the time of his removal, the child was approximately 36 months old. All of his belongings were in his room in Turkey. Further, the child attended a playgroup, "Yapa," one or two times per week. Later, the child attended a preschool, Ankara English Preschool, between three and five mornings per week. The child frequently played in the park across the street. He attended playgroups with friends as well as weekly services at the Anglican Church. Having a diplomat as a parent makes the child's situation somewhat unique: the child did not begin to learn Turkish, as his parents did not intend for him to stay there longer than Pliego's assignment in the country. Further, he was not a Turkish citizen, nor was he to apply for Turkish citizenship. However, the child moved to Turkey and remained there for nearly two years with the exception of travel and vacation. In determining habitual residence, the Court must "look backward in time." Friedrich I, 983 F.2d at 1401. The child lived consistently in Turkey for the majority of the last two years of his short life. Looking at the factors articulated in Jenkins, the child engaged in social and academic activities in Turkey, as much as would reasonably be possible for a child of his age. See 569 F.3d at 556. Further, his belongings were all in his room in Turkey. The child spent nearly two-thirds of his life before removal in Turkey; accordingly, the Court found that his presence there had a "degree of settled purpose." See Robert, 507 F.3d at 992-93. Thus, the Court held that the child's habitual residence was Turkey, and that Pliego had satisfied this element of his prima facie case.
The court found that the removal of the child was in breach of the petitioner's custody rights under the law of the country of habitual residence, and that the petitioner was exercising those rights at the time of the child's wrongful removal or retention. Article 335 of the Turkish Civil Code regulates the general provisions of child custody in the country. Under the first paragraph of Article 335, "every minor child is under parental custody of his/her mother and father. Parental custody may not be removed from mother and father without a legal cause." As the father, he currently had custody of the child. It was clear from the evidence presented that he was exercising his custody rights. Because the Court determined that Pliego had custody rights and was exercising them at the time of removal, it held` that he has satisfied his prima facie case under ICARA.
Hayes argued that the child would be in grave risk of harm if returned to Turkey. A child should not be returned to his or her habitual residence if "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Simcox v.. Simcox, 511 F.3d 594, 604 (6th Cir.2007) (quoting 42 U.S.C. § 11603(e)(2)(A)). The respondent had to prove this defense by clear and convincing evidence. Jensie, 2012 WL 5178168, at *1.
Many of the allegations of abuse appeared to relate to Pliego's parenting methods and contributions. For example, Pliego's alleged distaste for feeding the child in the middle of the night was not relevant to the determination here. Additionally, Hayes described in detail Pliego's behavior in "force-feeding" the child. Pliego and his mother, Viyuela, both contested this description. Without corroboration,
the Court was unable to conclude that this behavior occurred, that it may occur
again, or even that it necessarily constituted abuse. Hayes did not present
evidence regarding the effect of the alleged abuse on the child. See Walsh, 221
F.3d at 211 (noting the child's PTSD diagnosis); Elyashiv, 353 F.Supp.2d at
398-400 (same). Compared to the magnitude of those situations where courts found a
grave risk of harm existed, these allegations do not satisfy Hayes's burden. See
e.g., Elyashiv, 353 F.Supp.2d at 398-400 (finding grave risk where father beat
the children once or twice a week, threatened to kill his son and wife with
weapons he kept in the house; children were diagnosed with PTSD and suicidal
thoughts); Rodriguez, 33 F.Supp.2d at 459-60 (finding grave risk where child had
been whipped with belts, punched, and kicked, where the father threatened to kill
the children and kept a loaded gun).
Hayes also testified that Pliego abused her. She described a marriage that
involved fighting, yelling, and heated arguments. Hayes testified that Pliego twice pushed her in the foyer of the Indonesian apartment while she was holding the child; the second time, she fell after being pushed. Hayes testified that the majority of the abuse occurred in front of the child. Further, Hayes testified that Pliego took her and the child's passports out of the house and said that he would "throw her out in the street like the dog you are," and that "if you ever mention leaving me with [the child]
again, I'll kill you in your sleep."These incidents, with a few exceptions noted
above and in the factual findings, were not corroborated by other evidence. While
it was not dispositive of the truth of her allegations, the Court noted that Hayes did not report the abuse to the authorities or present bruises to any medical personnel. While Hayes's testimony was generally credible, these events, while concerning, were not enough to constitute grave risk to the child.
Hayes testified that on three occasions in Turkey in 2013 and 2014,
Pliego forced her to have anal sex against her will. In his testimony, Pliego
vehemently denied having anal sex or any nonconsensual sex with Hayes at any time. These allegations were not corroborated by other testimony, police reports, or medical reports. The Court found that Hayes has not satisfied her burden of proving by clear and convincing evidence that there will be a grave risk to the child were he to be returned to Turkey.
The Court determined that the petition should be granted.
In re the Application of Stead v. Menduno, 2014 WL 7403282 (D. Colorado.) A.C.S. was born to petitioner, a New Zealand citizen, and respondent, a United States citizen, on October 21, 2011. Petitioner and respondent lived together during respondent’s pregnancy, but separated shortly after A.C.S.’s birth, after which time respondent served as A.C.S.’s primary caretaker. After petitioner and respondent separated in early 2012, petitioner provided approximately $200 per week in financial support for respondent and A.C.S. until approximately October 2012. After October 2012, petitioner ceased providing financial support and instead began caring for A.C.S. during much of the day so that respondent could work. In May 2013, respondent brought A.C.S. to the United States with petitioner’s consent so that A.C.S. could meet respondent’s family. Respondent bought a round-trip ticket with a return date of September 29, 2013. Before giving his consent to the overseas trip, petitioner demanded assurances that respondent would return to New Zealand with A.C.S. no later than September 2013. Respondent gave such assurances. Between May and September 2013, petitioner had no contact with A.C.S., though respondent remained in contact with petitioner’s family and provided periodic updates on their trip. On September 23, 2013, respondent informed petitioner’s mother that she and A.C.S. would not be returning to New Zealand as she originally promised. Subsequently, petitioner retained counsel in the United States and brought this action.
The Court found that A.C.S. habitually resided in New Zealand before respondent retained him in the United States and that respondent’s decision to remain in the United States violated petitioner’s custody rights under the laws of New Zealand. Petitioner was A.C.S.’s legal guardian under New Zealand law, both because he lived with respondent during the time between A.C.S.’s conception and his birth and because he was listed on A.C.S.’s birth certificate as the child’s father. One of a guardian’s custody rights under New Zealand law is the right to determine, “for or with the child, or helping the child to determine, questions about important matters affecting the child,” CCA § 16(1)(c), among them “changes to the child’s place of residence.”. Respondent’s unilateral decision to remain in the United States with A.C.S. notwithstanding the assurances she gave to petitioner that A.C.S. would return to New Zealand breached this right. Respondent argued that petitioner abandoned his custody rights because he provided no financial support since at least November 2012 and because he did not contact A.C.S. after Respondent brought him to the United States. The Court finds that petitioner was exercising his custody rights at the time of the retention. Respondent provided no evidence that petitioner forfeited his custodial rights under New Zealand law. With respect to petitioner’s actions after respondent and A.C.S. came to the United States, the Court found that petitioner’s failure to contact A.C.S. between May and September 2013 did not constitute the sort of “clear and unequivocal abandonment” required to find in respondent’s favor on this element of plaintiff’s prima facie case. Friedrich, 78 F.3d at 1066. Rather, petitioner exercised his rights of custody by receiving assurances from respondent that she and A.C.S. would return. After petitioner demanded and received such assurances, the Court could not find that petitioner’s failure to renew those assurances constituted a clear and unequivocal abandonment of his custody rights. The Court found that petitioner satisfied his prima facie case under the Convention.
The Court found that respondent had not met her burden of proving a grave risk to A.C.S. by clear and convincing evidence. Respondent testified at length as to A.C.S.’s temper, including multiple outbursts and bouts of extreme jealousy. However, respondent did not identify any instance where petitioner was physically or sexually abusive, either to her or A.C.S. The Court was unaware of any case where a court applied the grave risk exception solely based on testimony about petitioner’s general predisposition to anger.
The Court also found that respondent could not meet her burden of establishing acquiescence by a preponderance of the evidence. After respondent informed petitioner’s mother that she intended to remain in the United States with A.C.S., petitioner filed an application with the New Zealand authorities to initiate proceedings under the Convention. The Court concluded that petitioner acted with reasonable diligence to secure A.C.S.’s return after discovering respondent’s intention to remain in the United States and cannot conclude that the five-week period between late September 2013, when petitioner learned through his mother that respondent intended to keep A.C.S. in the United States, and November 4, 2013, when he filed his application with the New Zealand Authorities, constituted acquiescence.
Respondent raised equitable defenses, including equitable estoppel, waiver, unclean hands, and “course of conduct.” The Court observed that the Third and Fourth Circuits have considered whether equitable defenses are permitted in a case brought under the Convention, and have both held that they are not. See Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010); see also Katona v. Kovacs, 148 F. App’x 158, 161 (4th Cir.2005). The equitable doctrines invoked by respondent are not mentioned in the Convention and were therefore not properly brought as defenses to a petition for return of the child.
At the hearing, petitioner indicated that they did not intend to seek attorneys’ fees, but did intend to seek costs, including the costs of travel, court filing fees, and deposition costs. Respondent argued that an award of any costs would be clearly inappropriate, both because respondent lacked any malicious intent in retaining A.C.S. in the United States and because any award of costs would put respondent in debt for the rest of her life. The Court found that an award of filing fees and deposition costs was inappropriate in this matter, given the petitioner’s pro bono representation and respondent’s relatively low salary, total savings of slightly over $2,000, the fact that respondent spent 80% of her income on housing, and the fact that most of her other expenses relate to providing for A.C.S. The Court did, however, find that an award of petitioner’s airfare to and from the hearing was appropriate.
In Baker v. Baker, Not Reported in F.Supp.3d 2015 WL 249009 (2015) the district court granted respondent David Baker’s (“Father”) Motion to Amend the Voluntary Return Order. On December 19, 2014, petitioner Lisa Jane Baker (“Mother”) filed her complaint. On December 23, 2014, the court issued a Show Cause Order, setting a hearing on January 6, 2015. At the hearing, the Father voluntarily agreed to return the children to the Mother in England. The parties had been working on a proposed voluntary return order and continued working on that order during the hearing. From the bench, the court ruled on the parties’ remaining disagreements, incorporating most of that proposed order in its ruling. On January 14, 2015, the Father filed a motion requesting that the voluntary return order be modified to reflect the following: Father will be accompanying the minor children on the flight to England.• The airport will now be the Manchester, England Airport, which is apparently 140 miles closer to Mother’s home than London’s Heathrow Airport. According to the Father, the Mother did not oppose these arrangements, but the Mother did request any modified order also include language such as “The Father will deliver the minor children to the Mother as soon as the minor children exit the international arrivals hall.” The Father objected to that language because it addressed the custody of the children, which the Father argued was outside this court’s jurisdiction under the Hague Convention on the Civil Aspect of International Child Abduction.
The district court observed that the cornerstone of the Hague Convention is the mandated return of the child to his or her circumstances prior to the abduction....”In this case, the status quo prior to the Father’s alleged “abduction,” was the return of the children to England because all parties—the Father, the Mother, and minor children—lived in England. Because the Father’s proposed modifications did not alter the return of the children to England, the court modified its previous order. The court’s previous order assumed the children would be flying unaccompanied because Father could not afford to fly the kids and him. Therefore, the court’s order stated that the children “shall be returned to [the Mother].” However, that language merely reflected the only option at the time: The Mother would receive the children because the Father was not accompanying them. In other words, the Mother was the only logical person to receive the children upon their arrival in England. The court stated that it did not intend to make findings concerning the minor children’s custody, whether in the United States or England. Additionally, the court’s previous order, as written, limited the Father’s ability to accompany the children to England. The original order directed the Father to take certain actions when dropping the kids at the airport for their return flight. For instance, the Father is to accompany the children to the gate, deliver the children’s United Kingdom passports to the check-in clerk, and wait until the plane has departed before leaving. The previous order’s language made it impossible for the Father to comply with the court’s order and accompany the children. The court could not enforce the status quo, as mandated by the Hague Convention, by denying the Father’s ability to accompany his children back to England. The status quo involved the entire family unit—the Father, the Mother, and the children—in England. In other words, the status quo was not the Mother and the children in England and the Father in the United States. The court amended its previous order because the status quo remained restored even with the modifications below and directed, inter alia, that the Father would accompany the children on the flights to Manchester, England.
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.
