Lawrence v. Lewis, Slip Copy, 2015 WL 1299285 (S.D.Ohio)[United Kingdom] [Temporary Restraining Order]

In Lawrence v. Lewis, Slip Copy, 2015 WL 1299285 (S.D.Ohio) the Petition for return of the child sought, as provisional remedies pursuant to 22 U.S.C. §9004, an immediate Order prohibiting the removal of the child from the jurisdiction of  the Court and requiring Respondent to post a bond in the amount of $20,000, to remain in effect until  further order of the court. The Court construed this portion of the Petition as a motion for a temporary restraining order.

Based upon the filed papers it found that Petitioner Nathan Lawrence and Respondent Natalie J. Lewis were the biological parents of minor child JRM. JRM was born in 2006, and wasnow eight years old. Petitioner was designated as JRM's father on her birth certificate. As such, pursuant to law, Petitioner has parental responsibility of the child and possesses "all rights, duties, powers, responsibility and authority" given to a parent under the law. (United Kingdom Children Act of 1989).   Prior to March 24, 2014, JRM resided in Birmingham, West Midlands, England, United Kingdom for eight years. Pursuant to a Prohibited Steps Order entered by the Birmingham County Court in 2010, Respondent was prohibited from removing JRM from the  United Kingdom "without the written consent of every person with parental responsibility for the children or leave of the court." Pursuant to a Contact Order, Petitioner was to have weekly telephone contact with JRM and custody on alternate weekends. Petitioner last saw JRM on March 24, 2014 when, following one of his weekends with JRM, he took JRM to school.   Upon learning that Respondent's house had been abandoned, Petitioner contacted the local police, who, in turn, contacted authorities in the United States.  Authorities located Respondent in Ohio and took pictures of Respondent and JRM as part of a "safe and well check." Petitioner believed that Respondent and JRM currently resided in Peebles, Ohio.  The United Kingdom High Court of Justice ("High Court")  issued at least three Orders requiring Respondent to return JRM to the United Kingdom. On December 10, 2014, At Petitioner's request, the High Court entered a publicity order on December 10, 2014. Pursuant to that order, Petitioner discussed the removal of JRM with the British media.  Respondent also participated in an interview with the media, in which she indicated that she was in Cincinnati and that her husband is American. On September 25, 2014, the High Court ordered that JRM be designated  ward of the court and that Respondent provide JRM's whereabouts in the   United States and return JRM to the United Kingdom by October 10, 2014. On October 10, 2014, the High Court entered a second order on requiring the immediate return of JRM.  On March 16, 2015, the High Court held Respondent in contempt for failing to adhere to its previous orders and again ordered Respondent to  return JRM to the United Kingdom. 

     The Court evaluated Petitioner's request for provisional relief pursuant to Federal Rule of Civil Procedure 65, which authorizes the Court to grant a temporary restraining order or a preliminary injunction. In determining whether to grant injunctive relief, the Court considers four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; whether the moving party will suffer irreparable harm if the injunction is not issued; whether the issuance of the injunction would cause substantial harm to others; and whether the public interest would be served by issuing the injunction.  Overstreet, 305 F.3d at 573. The Court considered these same four factors in determining whether to issue a temporary restraining order or a preliminary injunction.    The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:  (A) specific facts in an affidavit or a verified complaint clearly show that  immediate and irreparable injury, loss, or damage will result to the movant  before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice  and the reasons  why it should not be required. Fed.R.Civ.P. 65(b)(1).
   
The Court found that petitioner made the requisite showing that JRM was a habitual resident of the United Kingdom before the removal; that the removal breached his rights to custody of JRM, and that he had been exercising his custodial rights at the time of the removal. JRM  resided in the United Kingdom for eight years prior to April 24, 2014. Respondent was designated as JRM's father on her birth certificate and, therefore, has parental  rights under the Children's Act of 1989. Respondent had been  exercising his custodial rights up until JRM's removal. For these reasons, the Court found that Petitioner had shown a sufficient likelihood of  success on the merits.

Based on the facts contained in the Petition and the supporting documentation, Respondent  retained the child in the United States for close to a year,  despite Petitioner's attempts to exercise his custodial rights and garner relief through the High Court. This suggested to the Court that Respondent could seek to remove JRM from this jurisdiction, or further conceal her whereabouts. Such action would defeat the purpose of the  Hague Convention and frustrate the effort of this Court in resolving the ultimate disposition of the Petition.  Were Respondent to flee the jurisdiction and conceal JRM prior to a hearing  before the Court, Petitioner would suffer irreparable harm.This order, if granted, was limited and temporary. Accordingly, the balance of the equities weighed in favor of Petitioner. The court found that the public interest was served by granting the provisional relief sought. Granting the provisional relief sought, as a means to ensure that  the matter was adjudicated on its merits, is the public interest.   In sum, the four factors discussed above weighed in favor of granting a temporary restraining order that prohibited the removal of JRM from the Southern District of Ohio, pending a final  evidentiary hearing on the Petition or until further order of the Court.

   Because Petitioner sought provisional relief without notice to Respondent, the request  met additional requirements. The Court found that Petitioner had set forth specific facts that clearly showed that immediate and irreparable injury, loss, or damage would result to the movant before the adverse party could be heard in opposition. In light of Respondent's failure to comply with orders issued by the High Court, including an order that Respondent provide JRM's whereabouts in the United States, the risk that Respondent would attempt to evade an order from the Court by removing her from the Southern District of Ohio was likely. This would undoubtedly cause irreparable injury to Petitioner. For these same reasons, notice would defeat the purpose of the provisional relief sought.

   Rule 65(c) of the Federal Rules of Civil Procedure requires that the movant post a security bond in the event that the Court grants a temporary restraining order. The Sixth Circuit has repeatedly held that District Courts possess discretion to issue such injunctive relief without the positing of a bond. The Court exercised its discretion in favor of foregoing the posting of a bond by Petitioner, and denied Petitioners request for an order directing the Respondent to post a bond.

   For the foregoing reasons the court directed that  Respondent Natalie J. Lewis shall not remove JRM, nor allow any other person to remove JRM, from the jurisdiction of the Southern District of Ohio pending a final evidentiary hearing on the Petition or further order of the Court. This Temporary Restraining Order expired fourteen (14) days from the entry of the Order.

Ostos v Vega, 2015 WL 569124 (N.D. Texas, Dallas Division) [Mexico] [Motion to dismiss] [Maintain Statues Quo] [Guardian Ad Litem] [Expedited Discovery]

In Ostos v Vega, 2015 WL 569124 (N.D. Texas, Dallas Division) the district court denied the Respondents Motion to Dismiss; denied the Request for Expedited Discovery; denied the Request for Appointment of a Guardian Ad Litem; and granted the Request for Keeping Status Quo During Pendency of Litigation.
 
On November 6, 2014, Petitioner Bernice Vega Ostos brought an action against Defendant Jose Alfredo Vega  pursuant to the Hague Convention. Ms. Vega–Ostos and Mr. Vega are the parents of J.G.V., who was eight years old. Ms. Vega–Ostos alleged in her Petition for Return of Child that in removing J.G.V. from his habitual residence in Mexico, where J.G.V. resided with his mother, and bringing him to the United States to reside with his father in Dallas, Texas, Mr. Vega violated her custody rights under Mexican law and the parties' custody agreement under a Final Decree of Divorce entered on November 8, 2012, by the 302nd Judicial District Court, Dallas County, Texas. Ms. Vega–Ostos sought an order requiring Mr. Vega to return J.G.V. to Mexico. Pending a hearing in the court, Ms. Vega–Ostos requested: that she be given immediate access to J.G.V.; that Mr. Vega be prohibited from removing J.G.V. from the jurisdiction; that Mr. Vega be required to turnover to the court J.G .V.'s travel documents; and that the court set an expedited hearing on her Petition. Ms. Vega–Ostos also seeks to recover her attorney's fees and costs incurred as a result of this action. 
Mr. Vega moved to dismiss the action, contending that it does not fall under the ICARA and instead merely involves the issue of whether a modification of the parties' custody agreement should be granted by the 302nd Judicial District Court, Dallas County, Texas, which entered the parties' Final Decree of Divorce. Mr. Vega asserted that he filed a motion with the state court to modify the parties' parent-child relationship as to J.G.V. on August 12, 2014. Mr. Vega contended that he has lived in Dallas County for several years and has never hidden from Ms. Vega–Ostos the whereabouts of J.G.V., who was currently residing with him and attending school in Texas. Mr. Vega contended that, even assuming that the ICARA applies, Ms. Vega–Ostos cannot establish the requisite prima facie case under the ICARA because: (1) J.G.V. is not a habitual resident of Mexico; and (2) he is not in breach of any custody or court order. According to Mr. Vega, he is a joint managing conservator under the Final Divorce Decree and, as such, has the right to ensure that J.G.V. is not placed in harm's way. Mr. Vega further asserted that he has affirmative defenses under Article 13 of the Convention that would allow J.G.V. to remain in his custody in the United States. Mr. Vega contended that returning J.G.V. to Mexico would subject him to a grave risk of physical or psychological harm or otherwise place J.G.V. in an intolerable situation. In addition, Mr. Vega contends that J.G.V objected to returning to Mexico, and that J.G.V. has reached an age and level of maturity appropriate for the court to take into account J.G.V's view as to whether he should be returned to Mexico. Mr. Vega therefore requested that Petition filed by Ms. Vega–Ostos be denied and dismissed. Ms. Vega opposed the motion.


The court observed that to defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim meets the plausibility test “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a complaint need not contain detailed factual allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”Twombly, 550 U.S. at 555 . The “[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”Id.(quotation marks, citations, and footnote omitted). When the allegations of the pleading do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679. In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. In ruling on such a motion, the court cannot look beyond the pleadings. The pleadings include the complaint and any documents attached to it. In this regard, a document that is part of the record but not referred to in a plaintiff's complaint and not attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion. The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. . While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”Iqbal, 556 U.S. at 679 . Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. The court did not evaluate the plaintiff's likelihood of success; instead, it only determined whether the plaintiff has pleaded a legally cognizable claim.

The Convention is implemented through the ICARA.  Under the ICARA, state courts and federal district courts have concurrent original jurisdiction over actions arising under the Convention. 22 U.S.C. § 9003(a). J.G.V. was located in Dallas County, Texas, when Ms. Vega–Ostos filed her Petition under the Convention. The court therefore has jurisdiction over this action, and, for the reasons herein explained, it was irrelevant whether there is a motion pending to alter the parties' custody agreement in state court. 

A parent's removal or retention of a child is considered wrongful “when he or she removes or retains the child outside the child's country of habitual residence, and this removal: breaches the rights of custody accorded to the other parent under the laws of that country; and, at the time of removal, the non-removing parent was exercising those custody rights.”Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir.2004) (citing Convention, art. 3). “[R]ights of custody” are “rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.”Abbott, 560 U.S. at 9 (quoting Convention, art. 5(a)). Pursuant to Article 3 of the Convention, rights of custody may arise from operation of law, from a judicial or administrative decision, or from a legally binding agreement. Convention, art. 3. Neither the Convention nor ICARA defines “habitual residence.” Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1455 (2013).“The inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.”It is irrelevant under the Convention “whether there is a custody dispute concerning [the] child pending at the time of removal.”Appellant, 394 F.3d at 343. The Convention's return remedy does not change custody rights that existed prior to the wrongful removal of a child and is not a determination regarding the merits of any custody issue. Abbott, 560 U.S. at 9 (citing Convention, art. 19). If a petitioner shows by a preponderance of the evidence that the removal or the retention of the child was wrongful, the burden shifts to the respondent to prove an applicable affirmative defense. See 22 U.S.C. § 9003(e)(1). 

Ms. Vega–Ostos alleged in her Petition that she had custodial rights under Mexican law and the exclusive right under the parties' divorce decree to designate J.G.V.'s primary residence without regard to geographic location; that J.G.V. has been a habitual resident in Mexico “since shortly after his birth” until he was wrongfully removed from Mexico; and that she was exercising her custodial rights at the time J.G.V. was wrongfully removed from Mexico by Mr. Vega. Ms. Vega–Ostos's pleadings are not verified as she maintains. The Petition is accompanied by a verification, but Ms. Vega–Ostos did not sign the verification. The court nevertheless determined that Ms. Vega–Ostos's factual allegations, while sparse, were sufficient to state a claim for wrongful removal and return under the Convention. Although Mr. Vega asserted that he has affirmative defenses under the Convention, dismissal of Ms. Vega–Ostos's Petition was not appropriate under Rule 12(b)(6), as the facts supporting his affirmative defenses and Ms. Vega–Ostos's claim under the Convention needed to be developed in an evidentiary hearing. Further, it was irrelevant for purposes of the Convention whether Mr. Vega has filed a motion in state court to alter the parties' custody arrangement. The court therefore denied the Motion to Dismiss. 

The court noted that the Convention requires courts to “act expeditiously in proceeding for the return of children.”Convention, art. 11. It found that Mr. Vega's request for discovery, even on an expedited basis, would necessarily delay the proceedings. Moreover, Mr. Vega did not explain what discovery is needed. The court therefore denied the Request for Expedited Discovery. The Court observed that Federal Rule of Civil Procedure 17(c)(2) requires a court to appoint a guardian ad litem for a minor whose interests are not represented in an action. The district court noted that Mr. Vega had not set forth any specific reason as to why he believed appointment of a guardian ad litem was necessary in this case, and the court determined that J.G.V.'s fundamental interests under the Convention were adequately represented, as both parties were making an effort in this case to represent those interests. The court therefore denied the Request for Appointment of a Guardian Ad Litem. 



Mr. Vega essentially requested to retain custody of J.G.V. pending the resolution of this action. In response, Ms. Vega–Ostos contended that allowing Mr. Vega to retain J.G.V. pending the resolution of this action would constitute an improper custody decision by the court and contravene the Convention's purpose of restoring the pre-abduction status quo and to deterring parents from crossing borders in search of a more sympathetic forum. The court disagreed with Ms. Vega–Ostos's assertion that a ruling by the court to maintain the status quo during the pendency of this action would amount to a custody determination.  For this reason, and because neither party had pointed the court to any authority dealing with a request to maintain the status quo during the pendency of a claim under the Convention, the court granted the Request for Keeping Status Quo During Pendency of Litigation. 

Mendez v. May, --- F.3d ----2015 WL 627215 (1st Cir.,2015) [Argentina][Habitual Residence]

In Mendez v. May, --- F.3d ----2015 WL 627215 (1st Cir.,2015) the district court granted the father's petition and ordered the child's return. The First Circuit reversed the district court's grant of the petition.

Petitioner was a citizen of Argentina who resided in Buenos Aires. Respondent was a U.S. citizen and permanent resident of Argentina. Respondent gave birth to their child, C.F.F.M., in Buenos Aires on December 3, 2007. C.F.F.M. was a citizen of both Argentina and the United States. The family lived together until 2009, when the couple's romantic relationship deteriorated and Petitioner moved out. That summer, the parties reached a child custody agreement which provided that C.F.F.M. would reside with his mother and granted the father visitation from Thursday evenings until Sunday nights. Per the 2009 agreement, Respondent could travel outside Argentina with C.F.F.M. for fifteen days in the Argentine winter and up to forty-five days during the Argentine summer; the agreement required Petitioner to authorize Respondent's travel with C.F.F.M. in accordance with that plan.   The parties experienced difficulties in their parenting relationship after they ceased cohabiting. 

In December 2012, the parties negotiated and executed a new coparenting agreement. Respondent retained custody and the agreement reduced Petitioner's visitation. The 2012 agreement permitted Respondent to travel abroad with the child for up to forty-five days each year; Petitioner would execute trip-specific authorization each time. In spring 2013, Respondent began to consider leaving Argentina to find work elsewhere. She discussed her interest in moving with Petitioner, who opposed her leaving Argentina with C.F.F.M. The parties were unable to come to an agreement, even after mediation in July 2013. The next month, Respondent accepted a job offer in Boston with a September 2013 start date. The parties discussed her upcoming move shortly after she accepted the job offer. During an August 13, 2013 Skype conversation, Respondent urged Petitioner to pursue work or educational opportunities in Boston. Petitioner expressed openness to potentially moving to Massachusetts along with Respondent and C.F .F.M., but the parties reached no agreement during the conversation. 

The two met in person three times in August and September 2013 to discuss potential arrangements if C.F.F.M. were to relocate to the United States. During the third meeting, Petitioner agreed to allow C.F.F.M. to move to Massachusetts with Respondent. Respondent proposed that C.F.F.M. could travel back to Argentina during U.S. school vacations and agreed to increase Petitioner's visitation time in anticipation of the move. The same day, the two relayed these plans to C.F.F.M. In accordance with their discussions, Respondent left Argentina to begin her job in mid-September 2013. C.F.F.M. remained in Argentina in the care of Respondent's mother, and Petitioner assumed the agreed-upon increased visitation schedule. The parties corresponded by email after her departure to discuss a new coparenting agreement and to set an exact date for C.F.F.M.'s move. Petitioner preferred a January 2014 move so that the child could complete his school year in Argentina; Respondent wanted him to move before the December holidays so that he could spend time with her family before beginning school in Boston. Petitioner objected to the December departure, reasoning that Respondent's family could see C.F.F.M. any time now that the child was moving to the United States, but confirmed a January 8, 2014 move date. In their correspondence, Respondent expressed frustration that even though the two had agreed that C.F.F.M. should move to the United States and Respondent had relocated to Boston with that decision in place, Petitioner had yet to draft or sign a new coparenting agreement. After an acrimonious Skype exchange on October 23, 2013, Respondent emailed Petitioner and asserted that she would invoke her forty-five days per year vacation time in order to allow C.F.F.M. to leave for Boston in early December. 

After that email, the parties' communication broke down. Petitioner initiated multiple court proceedings. Respondent returned to Argentina in late November and again in late December to attend court proceedings. At a hearing on Petitioner's criminal complaints, a criminal court judge reduced Petitioner's visitation and prohibited him from having overnight visits with C.F.F.M. Respondent returned to Boston and then came back to Argentina on February 9, 2014. The family court judge held a hearing the next day to address Petitioner's temporary custody proceeding and Respondent's filing to obtain travel authorization for C.F.F.M. to visit the U.S. for forty-five days, pursuant to the parties' 2012 agreement. On February 14, the judge issued a decision denying Respondent's request for travel authorization. That same day, Respondent left Argentina with her mother and C.F.F.M. The district court found that Respondent knew of the Argentine family court's order denying her travel authorization before she left Buenos Aires that day. She drove to a border town near Brazil and Paraguay, and on February 15, made three trips into Brazil and Paraguay in search of an airport where C.F.F.M. could travel to the United States without scrutiny of his visa. On February 16, 2014, Respondent and C.F.F.M. flew out of Paraguay to the United States. Respondent did not inform Petitioner that she had left Argentina; he discovered that C.F.F.M. was no longer in the country when the child did not attend his first week of school in March. Petitioner found Respondent's work phone number and repeatedly called her office. She confirmed that C.F.F.M. was in Boston under her care. 

On April 11, Petitioner filed for Hague Convention remedies with a central authority in Argentina. On July 15, the Argentine family court judge issued an opinion finding that Respondent wrongfully removed C.F.F.M. under the Hague Convention and that C.F.F.M.'s habitual residence at the time of removal was Argentina. 

C.F.F.M. and Respondent lived in Roslindale, Massachusetts since February 2014. C.F.F.M. attended a Boston public school. Petitioner filed the action in the district court on October 6, 2014. The court issued its order granting the petition and ordering the child's return on January 16, 2015.

The First Circuit indicated that its review begins and ends with the question of C.F.F.M.'s habitual residence at the time of removal.  Removal under the Hague Convention is only appropriate if the child is being retained in a country other than his or her place of habitual residence. Sánchez–Londoño, 752 F.3d at 540. The Convention itself does not define “habitual residence,” leaving the interpretation of the term to the judicial and administrative bodies of signatory nations.  In determining a child's habitual residence, the First Circuit looks first to the shared intent or settled purpose of the persons entitled to determine the child's permanent home; as a secondary factor, it may consider the child's acclimatization to his or her current place of residence. Sánchez–Londoño, 752 F.3d at 540, 542. Typically, evidence of acclimatization alone cannot establish a child's habitual residence in the face of shared parental intent to the contrary. Neergard–Colón, 752 F.3d at 532. The question of habitual residence is a highly fact-specific inquiry that turns on the particular circumstances of each unique case. In discerning the parties' intentions, the court will look “specifically to the last moment of the parents' shared intent.” Mauvais, 772 F.3d at 12. Where a child has moved with a parent from one country to another, the record must evidence the parties' latest settled intention for the child to abandon a former place of habitual residence and acquire a new one. Darin, 746 F.3d at 11. In other words, the court “ ‘must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is.’ “ Id.(citing Mozes, 239 F.3d at 1076). The district court's ultimate determination of habitual residence is a mixed question of law and fact reviewed de novo, with subsidiary findings of the parties' intent reviewed for clear error. Neergard–Colón, 752 F.3d at 530. 

The Court of Appeals observed that the district court found in its opinion, that during a meeting at a Buenos Aires restaurant in early September 2013, Petitioner agreed to let C.F.F.M. move to Boston after the close of the child's school year in Argentina. The same day, the parties together told their son that he would move to Massachusetts with Respondent. Nevertheless, the district court found that Petitioner and Respondent “came close to forming ... a shared intent, [but] did not actually do so.” The Court held that this finding constituted clear error. The record was replete with Petitioner's own statements acknowledging and planning for the child's upcoming move, particularly during September and October of 2013, after Respondent moved to Boston and before the parties' relations broke down and Petitioner initiated civil and criminal proceedings against Respondent and her mother. For example, on September 30, 2013, in response to Respondent's request for C.F.F.M. to fly to the United States that December, Petitioner wrote in an email, “I would prefer if you can wait until he moves to you by the end of the year.... I really do not see the point of him going there when it would be just two or three weeks before he moves there .”On October 10, Petitioner suggested that Respondent meet him and C.F.F.M. in Miami in January 2014 and then take the child back to Boston, since Petitioner and his family had planned to be in Florida for a family trip that month. After Respondent suggested that Petitioner and C.F.F.M. meet her in New York to celebrate the New Year, Petitioner said he would check with his family but stated, “For now, what is sure is January the 8th.”Even during a tense Skype exchange on October 23, 2013, Petitioner expressed his understanding that C.F.F.M. would permanently move to the United States at the turn of the new year. Respondent renewed her request for C.F.F.M. to move before January 8, 2014, alluding to her family's holiday celebration in New York; Petitioner responded that “[C.F.F.M.] will be in the us [sic] in january [sic]” and that Respondent's family “will have plenty of time [to spend with the child] know [sic] that [C.F.F.M.] is going to be in the us [sic] living there.”After this Skype exchange, Respondent emailed Petitioner and stated that she would invoke her forty-five day travel authorization in order to take C.F.F.M. with her to Boston on December 4, 2014, triggering the breakdown in the parties' communications. 

Even though Petitioner changed his mind and decided that he did not want C.F.F.M. to move to Boston, the record established that the last shared intent of the parties was for their son to relocate permanently with his mother soon after C.F.F.M. finished the Argentine school year in December 2013. The “unilateral wishes of one parent are not sufficient” to overcome the last settled purpose of the parents. Sánchez–Londoño, 752 F.3d at 540.  In Re Bates, a United Kingdom decision considered a leading case on habitual residence, the parents' intention for the child to live in New York for a set period of time governed even where the parents made the decision while touring the Pacific Northwest, and had borrowed a New York apartment for later that spring only on a temporary basis. Re Bates, No. CA 122/89, High Court of Justice, Family Div. Ct. Royal Courts of Justice, United Kingdom (1989), available at1989 WL 1683783. The mother brought the child from the West Coast to New York while the father, an Englishman, continued on to Asia. A few days later, the father telephoned his daughter's nanny and told her to take the child to London, where the father owned a house. The mother filed a petition under the Hague Convention in the British courts immediately after she discovered that the child and nanny were gone. The British court found the child habitually resident in New York, reasoning that the “arrangements that had been agreed, however acrimoniously” by the parties “amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled,” though at the time the parents made the decision the child had only briefly visited New York before. Here, the district court erroneously reasoned that Petitioner never signed a written agreement memorializing the parties' new parenting plan, and refused to issue a travel authorization permitting C.F.F.M. to leave Argentina. But the parties did not make their joint decision for C.F.F.M. to move to the United States contingent on signing an official instrument; like in Re Bates, the parties verbally agreed to the plan. While in some circumstances, written evidence of a parties' agreement may inform a court's decision-making, we reject the idea that such formal documentation is required to establish the settled intention of the parties. 

Additionally, the district court misapplied the governing law of the First Circuit when it held that a change in habitual residence “requires an actual ‘change in geography.” The First Circuit pointed out that it has never added such a requirement in the context of the habitual residence test. It has explicitly described a change in the child's geography as but one “consideration[ ] for the court” and “one factor in our [habitual residence] analysis,” not as a full-fledged prerequisite. Darin, 746 F.3d at 12–13; see also Mauvais, 772 F.3d at 14 (“ ‘[F]actors evidencing a child's acclimatization to a given place-like a change in geography combined with the passage of an appreciable period of time—may influence our habitual residence analysis.’ ”) (quoting Sánchez–Londoño, 752 F.3d at 542). There may be situations in which an actual change in the child's geography factors heavily in the habitual residence analysis. It emphasized that  a child's presence in a new country of habitual residence is not required to effectuate his parents' settled intention to abandon his old place of residence and acquire a new one. A contrary requirement would incentivize a feuding parent to move his or her child immediately upon the formation of an agreement even if, as here, it would be better for the child to finish out a school year or wait until the parent has settled the family's living situation before the child joins her. 

Finding clear error in the district court's factual findings concerning the parties' intent, and errors of law in the district court's application of the Convention to the facts of this case, it held that the United States was the child's habitual residence at the time of removal based on his parents' mutual and settled agreement to move him there. No actual change in the child's geography is required to effectuate that last shared intent, nor must the parties' intent be memorialized in a written document. Mindful that the question of parents' shared intent “is not a uniformly applicable ‘test’ for determining habitual residence,” it cautioned that its holding rested of the particular facts of this case.

Petitioner did not prove that he sought to return C.F.F.M. to the child's country of habitual residence, one of the three elements of a prima facie case of wrongful removal. Because Petitioner did not meet his burden to establish a presumption of wrongful removal, the Court did  not reach other arguments raised by the parties, including the affirmative defense of consent.

Margain v Ruiz-Bours, Not for publication, 2015 WL 500685 (9th Cir., 2015) [Mexico] [Now Settled Defense]

In Margain v Ruiz-Bours, Not for publication, 2015 WL 500685 (9th Cir., 2015), Mauricio Fernandez Margain (“Mauricio”) appealed from the district court's denial of his petition for the return of his minor daughter to Mexico. The Ninth Circuit affirmed the judgement of the district court because it concluded that  the  court correctly determined, without deciding the habitual residence questions, that the child was “settled” within the meaning of Article 12 of the Convention. 

The Ninth Circuit observed that Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court shall order the return of the child forthwith.  Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1229 (2014) Article 12 also contains an affirmative defense: “If the abducting parent can show that the petition for return was filed more than a year after the wrongful removal or retention occurred, and ‘that the child is now settled in its new environment,’ the abducting parent can overcome the presumption in favor of return.”  Courts may consider a number of factors that bear on whether the child has significant connections to the new country. The respondent must establish the Article 12 exception by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(b). 

The Court found that the district court's finding that the child's mother, Elsa Lourdes Ruiz–Bours (“Elsa”), moved with her daughter to Tucson in July 2012, more than one year before Mauricio filed his petition in September 2013, is supported by the record, so the district court did not clearly err in so finding. Elsa introduced into evidence a receipt regarding a transaction she conducted at a clothing store in Tucson on July 6, 2012. She also produced evidence of money orders drawn on July 11, 2012 from a bank in Tucson to a residential leasing company, which she explained were the first payment and deposit for the apartment in which they were residing. This evidence, along with the trial testimony, sufficiently establishes that Elsa and her daughter had lived in Tucson for more than one year at the time Mauricio filed his Convention petition. The district court did not clearly err in finding that Mauricio filed his petition more than one year after the alleged wrongful removal. 

The district court’s conclusion that the child was now settled had ample support in the record. For example, Elsa's child psychology expert testified that the child had a “normal” emotional status for a five-year old child, and was “well acclimated” to her home and community. He noted that the child had friends with whom “she's very involved,” and that she liked her school and teacher. Other witnesses testified that the child had friends in the Tucson area. The child had lived with Elsa in Tucson for a longer period of time than she did in Mexico, and Mauricio has offered no evidence that her situation or environment was “unstable.” The “length and stability of the child's residence in the new environment” is “ordinarily the most important” factor in the “settled” analysis. It agreed with the  district court that the child was settled in her new environment. Moreover, no equitable factors counseled against application of the Article 12 exception, as the record supported the district court's conclusion that Mauricio was not diligent in locating the child in Tucson. See Lozano, 134 S.Ct. at 1237–39 (Alito, J., concurring).

Panteleris v. Panteleris, --- Fed.Appx. ----, 2015 WL 468197(6th Cir., 2015) [Australia] [Habitual Residence]

In, Panteleris v. Panteleris, --- Fed.Appx. ----, 2015 WL 468197(6th Cir., 2015) the Sixth Circuit affirmed the district court's grant of plaintiff Anthimos Panteleris's petition for return of their three children to Australia. 

Anthimos Panteleris, a citizen of Australia, and Aalison Panteleris, a citizen of the United States, married in the United States in 2005. Four months after their first child was born in the United States, the family traveled to Australia in March 2007. The Pantelerises had two more children in Australia. The family lived together in Australia until they traveled to the United States in March 2012.  Mr. Panteleris testified that the family intended to take a six-month to one-year extended vacation to visit Ms. Panteleris's family in Ohio, similar to a holiday Mr. Panteleris had taken with his parents when he was four years old. Ms. Panteleris testified that the family had relocated to the United States indefinitely. At the time of their arrival in the United States, the children were aged five years, three years, and four months. In April 2012, after visiting Hawaii for several weeks, the family arrived in Ms. Panteleris's hometown of Salem, Ohio. They moved into an apartment with a one-year lease. Ms. Panteleris obtained employment and Mr. Panteleris, who could not work under his visa status, stayed at home with the children. The eldest two children were enrolled in school. Ms. Panteleris later quit her job in November 2012, and the family's savings were largely depleted. On December 2, 2012, Mr. Panteleris returned to Australia alone. Mr. Panteleris testified that he returned to Australia to obtain employment and prepare for the family's return to Australia. According to Mr. Panteleris, after he secured a stable job, he requested in May 2013 that Ms. Panteleris and the children return to Australia but Ms. Panteleris refused.  

Mr. Panteleris filed a petition for return of the children in United States district court on February 28, 2014. The court held a five-hour evidentiary hearing. In July 2014, the court issued an opinion and order granting plaintiff's petition and ordering the children returned to Australia. There the Sixth Circuit granted defendant's emergency motion to stay the order pending appeal. 

The Court pointed out that in a case involving an action for return of a child under the Hague Convention, it reviews the district court's findings of fact for clear error and reviews its conclusions about American, foreign, and international law de novo.” Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir.2007).

In this case, the district court found that, at the time of wrongful retention, Mr. Panteleris was exercising his custody rights under the Australian Family Law Act by maintaining a relationship with his children. On appeal, Ms. Panteleris did not dispute that Mr. Panteleris had custody rights, but argued that he voluntarily relinquished his rights by returning to Australia and making only “sporadic” attempts to contact the children. The Court found that this recharacterization of the facts fells short of “clear and unequivocal abandonment.” The district court addressed this issue in detail, observing that “courts should ‘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.’ “ The district court found that Mr. Panteleris “regularly” communicated with his children between December 2012 and May 2013, the date of wrongful retention. Moreover, although Mr. Panteleris did not provide direct financial support, Ms. Panteleris made withdrawals from the parties' joint bank account in Salem, Ohio, and Mr. Panteleris offered to reimburse her for family expenses if she provided him with bills or receipts. There was no evidence that Ms. Panteleris had provided Mr. Panteleris a bill or receipt that he refused to pay. Moreover, the court observed that “[t]he record is replete with [Mr. Panteleris's] well-documented visa difficulties and references to the poor financial situation of the Panteleris family. It follows that the family members could ill afford airline tickets to Australia, and the three children, one of whom was autistic and the eldest of whom was now seven, could not safely fly unaccompanied.” The district court thus concluded that Mr. Panteleris had not failed to exercise his custody rights during the relevant time period. The district court did not clearly err. 

The Sixth Circuit pointed out that a child's country of habitual residence is a question of fact that the court reviews for clear error. Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir.2009); Robert v. Tesson, 507 F.3d 981, 995 (6th Cir.2007).  Although the Convention does not define “habitual residence,” the Court has held that “a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective.” Robert, 507 F.3d at 998. It has  established five principles to consider in determining a child's habitual residence: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child's experience in determining habitual residence. Third, this inquiry should focus exclusively on the child's past experience. Any future plans that the parents may have are irrelevant to its inquiry. Fourth, a person can have only one habitual residence. Finally, a child's habitual residence is not determined by the nationality of the child's primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Robert, 507 F.3d at 989  (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993) (“Friedrich I ”)).

In this case, the district court considered the children's activities in Australia, including school, social engagements, and meaningful connections to people and places in Australia. It also considered the children's activities and meaningful connections in the United States, but observed that it could not accept evidence of habitual residence for dates after May 2013 because Sixth Circuit precedent instructs courts to look back in time from the period of wrongful retention, not forward. The district court also considered the children's belongings that the family brought to the United States and items left in Australia. Weighing all the evidence, the district court concluded that Mr. Panteleris had established by a preponderance of the evidence that the children were habitual residents of Australia at the time of the wrongful retention. 

On appeal, Ms. Panteleris argued that the court's factual finding was clear error because a period of one year is significant in the lives of young children and, under the Friedrich I factors, the children had acclimatized to the United States. The Sixth Circuit held that Ms. Panteleris's first argument reflected a difference of opinion on how to weigh the evidence, but not clear error. Ms. Panteleris failed to establish that the district court clearly erred in finding that, in light of all the evidence, Australia was still the children's habitual residence from their perspective. 

The Sixth Circuit rejected Ms. Panteleris argument that the court should  “the subjective intent of the parents” as an additional factor in determining a child's habitual residence, at least with respect to young children and those with developmental disabilities. The Court noted that it had previously considered similar arguments. In Robert v. Tesson, 507 F.3d at 990–91, it rejected the Ninth Circuit's approach in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), which considers “the subjective intentions of the parents [as] all but dispositive of a child's habitual residence.” It found the Ninth Circuit's rule “inconsistent” with Friedrich I and “the Convention's goal of deterring parents from crossing borders in search of a more sympathetic court” because such a rule “empowers a future abductor to lay the foundation for an abduction by expressing reservations over an upcoming move.”Robert, 507 F.3d at 992. Nevertheless, it left open the possibility that “a very young or developmentally disabled child may lack cognizance of their surroundings sufficient to become acclimatized to a particular country or to develop a sense of settled purpose.”. However, because that case did not present such facts, it “express[ed] no opinion on whether the habitual residence of a child who lacks cognizance of his or her surroundings should be determined by considering the subjective intentions of his or her parents.” It did not need to decide whether the Pantelerises' subjective intent should be considered because it would not change the outcome in this case under the deferential standard of review. The district court explicitly found that even if it were to consider the subjective intent of the parents, “the evidence submitted as to the intent of the parents favors [Mr. Panteleris's] version that the parties intended to stay in Ohio for one year.” Just as the district court's factual finding of the children's habitual residence was not clear  error, Ms. Panteleris did not show that the district court's implicit credibility determination favoring Mr. Panteleris's version was clear error in light of all the evidence. 

Gwiazdowski v. Gwiazdowska, 2015 WL 1514436 (E.D.N.Y.)[Poland] [Well settled defense]

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.

Mendez v May, 2015 WL 143965 (D. Mass., 2015) [Argentina] [Habitual Residence] [Grave Risk of Harm] [Petition granted]

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.

Pliego v Hayes, 2015 WL 269207 (W.D.Ky.) [Turkey][Habitual Residence] [Grave Risk of Harm] [Petition granted]

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.