In Gee v. Hendroffe, 2015 WL 2151885 (S.D.Tex.) Petitioner moved for Attorney's Fees and Costs after the Court ordered the return of Petitioner's children to South Africa, and ordered that Respondent pay "all costs and fees incurred by Petitioner to recover the children as required under 42 U.S.C. Sec. 11607. In his motion, Petitioner requested $14,111.00 for "airline tickets, hotel, car rental and
food costs and expenses." In support, Petitioner submitted airplane, car rental, and hotel (or "airbnb") receipts totaling $12,743,84. The Court pointed out that insofar as the $1,367.16 discrepancy between requested and documented non-legal fees included food costs, Petitioner had not submitted any receipts for food costs. The court cited In re Application of Hirts, CIV.A.03-CV-03156, 2004 WL 1588227, at *1 (E.D.Pa. July 13, 2004), aff'd sub nom. Hirts v. Hirts, 152 Fed. Appx. 137 (3d Cir.2005) (granting airfare, hotel costs, and car rentals but holding "Petitioner's costs incurred in caring for himself and his children are in no way 'related to the return of the child[ren],' as required by 42 U.S.C. § 11607(b). Petitioner would have incurred the costs of feeding, clothing and otherwise supporting his children and himself whether his children were in the United States or Germany.") Respondent was directed to pay $12,743.84 for airline tickets, hotel, and car rental expenses with interest at .11 percent per year compounded annually from the date of the order.
Petitioner requested $39,727.80 for "legal fees, costs and expenses." Petitioner submitted legal bills totaling $39,727.44. Petitioner alleged "total legal fees, costs and expenses" were $57,829.80, but only requested $53,838 . Petitioner only submitted receipts for $52,471.28. The Court observed that the Fifth Circuit had examined the legal fees charged by Petitioner's counsel, Laura Dale, in a similar case. Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014). The Fifth Circuit affirmed the district court's finding Dale's rates to be reasonable but her time spent on the case to be excessive. The court found that here Ms. Dale billed $450 per hour for 1.5 hours; an associate, $250 for 41.25 hours; and a paralegal, $150 for 15.25 hours; minus a 25% courtesy discount on all fees. The associate and counsel of record, Ashley Tomlinson, one of the associates in Salazar, filed a declaration stating: "I am very familiar with the hourly rate that attorneys at my level of practice charge in matters of this nature. At least one third of my practice involves multi-jurisdictional conflicts, particularly actions brought under The Hague Convention... in which I specialize. This case included a show cause hearing and an evidentiary hearing, the latter lasting 5.5 hours. Billing statements provided by Petitioner include similar detail as the ones submitted in Salazar, including entries for communication with client or co-counsel that do not indicate the subject of the communication. Costs include "Color Copies, 500.00."
Petitioner also submitted a legal bill from counsel in Las Vegas totaling $27,892.21, related to a prior Hague Convention action in the U.S. District Court in Nevada. The bill included 88.8 hours at hourly rates of $150, $250, and $325, without explanation of who was doing the work. The bill also included a lump sum paid to another attorney without any explanation: "Cal Potter, Esq., 2000.00." The Nevada action included three court appearances totaling two hours and thirty-eight minutes and eight motions totaling 73 pages excluding exhibits. Respondent Hendroffe and the children failed to appear at the Nevada hearings in violation of multiple orders. The first Order gave Respondent over a month to prepare her travel plans, yet she waited until one week before the hearing to request a telephonic appearance. Respondent traveled to at least three different continents during the time relevant to this litigation. Respondent fled with the children to Malaysia. The case was then dismissed for lack of personal jurisdiction. Gee v. Hendroffe, No. 2:13-cv-01582-JCM-NJK. During the final hearing in Nevada, Petitioner informed the court he would seek attorney's fees and costs, but these were not available under Section 11607 in the absence of an order to return the children. 42 U.S.C.§ 11607(b) ("[A]ny Court ordering the return of the children... shall order the Respondent to pay necessary expenses...."). The district court held that although Petitioner's attorney fees in Nevada arose in a different proceeding, they were "necessary expenses incurred by or on behalf of the Petitioner including court costs [and] legal fees" in obtaining an order to return the children.
Hendroffe did not file a response to the motion and did not establish
that an attorney fee award would be "clearly inappropriate." 42 U.S.C.A. § 11607. The court observed that courts exercise wide discretion in reducing fee awards under Section 11607 based on equitable considerations such as the respondent's ability to pay. Citing Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014) (affirming reduction of "almost fifty percent"); Whallon v. Lynn, 356 F.3d 138, 139 (1st Cir.2004) (65%); Rydder v. Rydder' 49 F.3d 369, 373-374 (8 th Cir.1995) (46%, resulting in fees of $10,000). Given Hendroffe's failure to provide documentation of financial status or to respond at all and her flouting of court orders, the Court found that an equitable reduction was not warranted and that legal expenses and costs requested were reasonable and necessary, with the exception of the $1,367.16 undocumented non-legal expenses and an unexplained $2,000 payment by Kelleher & Kelleher to Cal Potter, Esq.
Respondent was directed to pay $11,835.23 to Laura Dale & Associates, P.C. ; and $25,892.21 to petitioner for attorney's fees, expenses and costs paid to his Nevada counsel Kelleher & Kelleher all with interest at .11 percent per year compounded annually from the date of the order.
[Mexico] [Federal & State Judicial Remedies][Temporary Restraining Order]
In Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.) Petitioner filed a Petition Under the Hague Convention Seeking Return of the parties Child to Petitioner in Mexico along with a Motion for an Ex Parte Temporary Restraining Order
According to the petition Petitioner was L.D.M.'s mother, and Respondent his father. They were both citizens of Mexico having been married in Oaxaca, Mexico. Petitioner and Respondent had two other children, both of whom resided with Petitioner in Mexico. Petitioner and Respondent moved to the United States from Mexico in 2004, along with their oldest child. Petitioner gave birth to L.D.M. in Statesboro, Georgia, on October 15, 2006. In May 2010, Petitioner and Respondent agreed that Petitioner would return to Mexico with L.D.M. On May 26, 2010 Respondent signed a notarized statement acknowledging Petitioner's return to Mexico with L.D.M. In June 2010, Petitioner, L.D.M., and her other two children went to Mexico. Respondent stayed in the United States, having promised to send money to his family and to return to Mexico within one year. Respondent never returned to Mexico, and stopped contacting Petitioner or sending any financial support soon after Petitioner and her children arrived in Mexico. From June 9, 2010 until March 15, 2014, L.D.M. resided continuously with Petitioner at their residence in Mexico. During this time, Petitioner provided financial and other support for L .D.M. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him in the United States. Petitioner agreed to let L.D.M. visit his father. At that time, L.D.M. was continuously enrolled in a primary school in Mexico. On March 15, 2014, L.D.M. flew from Mexico to the United States. In April 2014, Respondent asked Petitioner if L.D.M. could stay with him in the United States until the end of the school year. In June, 2014, Petitioner asked Respondent to return L.D.M. to Mexico so that L.D.M. could begin his next school term. Respondent refused to return L.D.M. to Mexico. Despite repeated requests to have L.D.M. returned to Mexico, Respondent has not returned L.D.M. to Mexico. Petitioner believed that L.D.M. was currently residing under the care of Respondent, his girlfriend, or his sister in Statesboro, Georgia, and that Respondent was not a citizen of the United States and was not lawfully present in the United States. Petitioner filed the petition on April 16, 2015.
The district court observed that Injunctive relief of the nature sought by Petitioner "is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking such injunctive relief must make four showings: "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."
The court found that Petitioner had shown a likelihood of success. Petitioner had shown that she had custody rights over L.D.M., and was exercising those rights at the time of his retention in Statesboro, because L.D.M. had resided continuously with her and his siblings in Mexico from June 9, 2010 until March 15, 2014 (Petition 2 19) and Petitioner has provided L.D.M.'s financial support for most or all of his life. Petitioner had also shown through her complaint that Respondent retained L.D.M. in Statesboro in violation of Petitioner's custody rights by first agreeing to keep L.D.M. only until the end of the 2014 school year , but then refusing to return L.D.M. to Mexico after the school year had ended. Because Petitioner had shown that she held and was exercising rights of custody over L.D.M. at the time he was wrongfully retained by Respondent in Statesboro, Georgia, Petitioner had shown that she had a likely success on the merits of her Petition under the Hague Convention.
The court stated that before the Court may issue an injunction, the Plaintiff must show that irreparable harm is not merely possible, but likely. Winter, 555 U.S. at 22.
"An injury is 'irreparable' only if it cannot be undone through monetary remedies."
United States v. Jenkins, 714 F.Supp.2d 1213, 1221 (S.D.Ga.2008). Petitioner alleged that Respondent, a citizen of Mexico, was not lawfully present in the United States. Because Respondent was not lawfully residing in the United States, it was likely that
an Order to appear in federal court for a full hearing on Plaintiff's motion for a
preliminary injunction will incentivize Respondent to flee the Court's jurisdiction with
L.D.M. If Respondent were to remove L.D.M. from the Court's jurisdiction, Petitioner
would be denied her opportunity to seek L.D .M.'s return to Mexico under the Hague
Convention. The likely harm to Petitioner, then, was exceedingly high, as she may not be able to continue a relationship with her son absent an injunction. Furthermore, an ex parte Order, issued without notice to Respondent, was appropriate under these circumstances due to the nature of the irreparable harm that Petitioner feared. Because there was a risk that Respondent may flee the Court's jurisdiction with L.D .M. when he learned of Petitioner's Petition under the Hague Convention, it was proper for the Court to grant Petitioner's request for the temporary restraining order rather than require Petitioner to notify Respondent of her Petition without an enforceable injunction in place at the time of such notification. Therefore, Plaintiff had shown that irreparable harm will likely ensue if the Court does not issue a temporary restraining order.
The Court weighed the equities and found that several equitable considerations weigh in Petitioner's favor. Petitioner had certain custody rights over L.D.M. under the laws of Mexico. The provisions of the Hague Convention and the ICARA were the only legal recourse available to her under the present circumstances, where her son had been wrongfully retained in Statesboro, Georgia in violation of her custody rights. If Respondent were to be notified of Petitioner's Petition without a legally enforceable order enjoining him from removing L.D.M. from the Court's jurisdiction, Petitioner's only available recourse for the return of her son would be thwarted. The stakes for Petitioner, then, were high. Very few equitable factors weighed in favor of Respondent. The temporary nature of the injunction would not greatly inhibit his rights or ability to travel, as the requested injunction is limited to keeping L.D.M. within this Court's jurisdiction for less than two weeks. The requested injunction would present little, if any, inconvenience or harm to Respondent. Upon weighing the above factors, the Court concluded that the balance of the equities favored Petitioner insofar as the court considered her request for an ex parte temporary restraining order.
The Court found that the public has an interest in seeing the custody rights of parents residing in other nations enforced in the United States' courts through the Hague Convention and ICARA. The Court concluded that the public interest in granting a temporary restraining order favored Petitioner.
The court granted Petitioner's request for a temporary restraining
order. The Court enjoined Respondent from allowing L.D.M. to be removed from the Southern District of Georgia pending a hearing on Petitioner's request for a preliminary injunction and was directed to bring to the preliminary hearing on May 6 any passports in his and/or L.D.M.'s name. It directed that pursuant to Federal Rule of Civil Procedure 65(c), the Petitioner must post bond with the Clerk of the U.S. District Court in the amount of $1,000.
In Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) the Petitioner, a citizen of Mexico currently residing in Cosolapa, Oaxaca, Mexico, brought the federal court action to secure the return of his two children, F.C.G., his nine-year old son, and A .C.G., his two-year-old son. Because of his inability to be present in Court to testify, Petitioner filed a Motion, requesting the Court permit him and Mr. Monterosas to testify, if necessary, by Skype or telephone under Rule 43(a). As good cause for permitting him to do so, Petitioner argued that he and Mr. Monterosas cannot travel because: they likely would be unable to obtain a passport or visa to travel to the United States, and; both were financially unable to travel to the United States. Petitioner was granted leave to proceed in the District Court without prepaying costs in part because he makes roughly ten-thousand dollars per year, below the poverty guidelines. Petitioner argued that appropriate safeguards would be present to ensure compliance with the mandates of Rule 43(a), such as his accurate identification by consular officials, his seclusion during the testimony to prevent outside influence, and his willingness to arrive early to test the technology involved so as to avoid interruptions during the trial.
The District Court granted the motion. It observed that Rule 43(a) permits a court to take remote testimony "[f]or good cause in compelling circumstances and with appropriate safeguards." Courts within this jurisdiction have applied Rule 43(a)
to allow parties and witnesses to testify remotely. Courts applying Rule 43(a) have established several situations justifying a court in permitting remote testimony. One such situation is the inability to obtain a visa to enter the country. See, e.g., El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C.Cir.2007) (finding remote testimony from Egypt appropriate when the witness could not obtain a visa to enter the United States); Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 (E.D.N.Y.2010) (testifying from London because of the inability to obtain a visa), aff'd, 401 F. App'x 567 (2d Cir.2010). Other justifications include the burden of international travel, e.g., Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D.Md.2010),FN3 and even the impact that traveling will have on one's business, e.g., Dagen v. CFC Grp. Holdings Ltd, No.
00 CIV. 5682, 2003 WL 22533425, at *1 (S.D.N.Y. Nov. 7, 2003).
Coupled with the general relaxation of procedural rules to promote conformity with the overarching goals of the convention, i .e., the expedient return of the children, sufficient cause existed for the Court to grant the Parties' request. It found that Petitioner and Mr. Monterosas were likely unable to obtain a visa, both for reasons outside of their control and due to their indigent status. As explained by an experienced immigration attorney who submitted a declaration in response to Petitioner's first request to testify remotely, Petitioner would be required to travel to the nearest consular office to apply for a visa. Once he arrived and paid the application fee, there is no guarantee that he would have received a visa. In fact, the attorney opined that it was likely that Petitioner would be denied a visa outright because of his limited financial resources. Furthermore, because Petitioner did not have a valid passport, he would not be able to even apply for the visa. Therefore, the Court found Petitioner and Mr. Monterosas' inability to obtain a visa and their financial inability to travel satisfied the "good cause in compelling circumstances" to permit their testimonies by Skype or telephone under Rule 43.
The court found that the Parties had also shown that appropriate safeguards were in place. Fed. Rules Civ. P. 43(a). The advisory committee's notes to Rule 43(a) suggest that appropriate safeguards should be in place to ensure: (1) Accurate identification of the witness; (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. Several examples of procedures used to satisfy the rule include: requiring that a notary identify the witness and swear that witness in remotely. Mission Capital Works, Inc. v. SC Rests., Inc., No. C-07-1807, 2008 WL 5100313, at *1 n. 12 (W.D.Wash. Dec. 3, 2008); ensuring that the witness is alone in the room and has been provided with the documentary evidence in advance. Scott Timber, Inc. v. United States, 93 Fed. Cl. 498, 501 (Fed.Cl.2010); and requiring the movant to pay all costs associated with the remote testimony and requiring that it be tested with the Court's IT personnel prior to the trial it which it is used. Monserrate v. K .K. Mach. Co., No. 10-3732, 2013 WL 1412194, at *4 (E.D.N.Y. Apr. 8, 2013).
The court directed that the following procedural safeguards be in place to ensure that Petitioner and Mr. Monterosas' remote testimony will satisfy Rule 43(a): “Petitioner and Mr. Monterosas will report to the Foreign Relations Secretary's local office in Cordoba, Veracruz, Mexico, on May 11, 2015, and May 12, 2015, by 8:30 AM EST; When at the appropriate local office, Petitioner and Mr. Monterosas will provide sufficient documentation to a consular official who will verify their identities with the Court prior to their testimony; Petitioner and his counsel will troubleshoot any problems with the technology in advance of the trial, and will work with the translator and Court/Consular staff to ensure that he and Mr. Monterosas can be heard and understood; Petitioner and Mr. Monterosas will testify separately, in a closed room, free of any outside influence (both in-person and through other technological means) on their testimonies; All documentary evidence presented to Petitioner and Mr. Monterosas will be marked prior to the trial and provided to them to facilitate their testimony; and Petitioner (through counsel) will pay any costs associated with the remote testimony.”
In Pliego v. Hayes, 2015 WL 1893426 (W.D.Ky.) the court granted Petitioner’s request for an Order directing that the parties' minor child be returned to Turkey. The petitioner filed a motion for attorneys fees requesting attorney's fees of $150,182.85. This include: attorney Rebecca McKelvey's 157 hours, billed at $285 and $295 ($47,082.50); attorney Brenton Lankford's 170.5 hours, billed at $250 and $260, ($47,692); Pliego's state court counsel Stephanie Ritchie's 22.10 hours, billed at $200 ($4,420); two paralegals, 182.61 hours billed at $140 ($30,955); for a total of $130,150.00. Additionally, the petitioner requested his expenses to attend trial ($1,089.88 for petitioner's airline ticket; $850.89 for his mother's airline ticket; $882.37 for hotel; $162.36 for rental car, taxi, and parking; and $317.03 for meals); expenses for the return of the child ($1,509.52 for Petitioner's airline ticket plus fees for change to ticket; $1,775.12 for airline ticket for the child; $1,906.51 for hotel; $971.79 for rental car; $63.26 for taxi; $248.00 for parking; and $187.04 for meals); trial expenses ($383.25 for deposition transcripts; $2,500 for expert witness fee; and $532.64 for translation/interpreter fees) as well as $500 for supervision fee for visitation with the child; a $481.00 service of process fee; and $5,671.75 for the attorney affidavit of Rebecca McKelvey.
In her response to the motion, the respondent argued that she was currently in Turkey seeking custody of her son, and her visa did not allow her to work. She added
that, "[e]ven prior to traveling to Turkey, [the Respondent's] finances were severely
constrained. She worked part-time at a library, making $10.25 dollars per hour. She
resided with her mother, and relied on financial help of her family to support herself and
her son. She had no medical insurance, instead relying on Medicaid for herself and her
son....".When the Respondent lived abroad with the Petitioner, she was a stay-at-
home mother and the Petitioner was the family's sole provider. The Respondent stated
that, "[o]ther than a single $1,000 payment, [the Respondent] has received no child
support or financial assistance from [the Petitioner] since April 2014. This is despite the
fact that [the Petitioner] earns the equivalent of over $159,000 USD a year, in salary
alone, along with numerous savings accounts and substantial investments.... The Respondent argued that she did not have the assets or income to pay the Petitioner's attorney's fees. She owned no real property. She did not own an automobile. She had no investments and no savings. A judgment awarding legal fees to the Petitioner could never be satisfied by her, and it would prevent her from supporting her child for years to come." She also argued that the fees were excessive, and also that certain fees should not be included, such as costs for Petitioner's state court counsel, visitation expenses, meals, and airline change fees due to the child's illness.
The district court observed that where the attorney's documentation is inadequate, or the claimed hours are duplicative or excessive, the court may reduce the award accordingly. Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 972 (N.D . Ohio 2008)." ICARA gives courts the discretion to reduce or even eliminate a respondent's obligation to pay a prevailing petitioner's attorney's fees and costs where such an award "would be clearly inappropriate." 42 U.S.C.§ 11607(b)(3).
The Court observed that some charges-including meals and hotels, and state court counsel-seemed excessive but it did not question the accuracy of the documented time spent. However, it found that the Respondent was incapable of paying the amount of fees requested and that it would be "clearly inappropriate" to enter a judgment against her for the full sum. Based on a review of the information and supporting documents, the Court reduced the overall legal fees by 50%. Therefore, Petitioner was awarded $75,091.425 for reasonable attorney's fees and costs.
In Velasquez v. Funes de Velasquez, 2015 WL 1565142 [E.D. Virginia ] on December 11, 2014, Oscar Edgardo Velasquez, an El Salvadorian citizen filed suit against his estranged wife Maria Teresa Funes de Velasquez, also an El Salvadorian citizen under the International Child Abduction Remedies Act.
On March 3, 2006, Oscar and Maria were married in El Salvador. Maria gave birth to their eldest daughter, M.D.F., approximately one year later on March 21, 2007 in San Salvador, El Salvador. Subsequently, Maria gave birth to their youngest daughter, M.A.F., on March 6, 2009 in San Salvador, El Salvador. At the time Oscar filed the Petition, the daughters were seven years old and five years old, respectively. Since his retirement in 2000 he had not worked. He invested in property, including property in the United States. Prior to November of 2013, Oscar and Maria lived with the daughters in their family residence in Santa Elena, El Salvador. The daughters were enrolled in the “Profesor Lisandro Arevalo” Educational Complex in Santa Elena, El Salvador; as of April of 2014, the eldest daughter was enrolled in second grade, while the youngest daughter was enrolled in kindergarten.
The court observed that the United States Department of State has identified El Salvador as one of the most violent countries in the world. (“There are no areas within the city of San Salvador (or the country of El Salvador) that are deemed free of violent crime.”) Crime in El Salvador is unpredictable, gang-centric, and directed against both known victims and targets of opportunity. Extortion is “a very common and effective criminal enterprise” in El Salvador. “Recent progress in the reductions of homicides has not been accompanied by a significant reduction in the extortion that often leads to other violent crimes.” To combat the high incidence of extortion, in 2006, the police department formed an Anti–Extortion Task Force. On February 25, 2011, Oscar and Maria received a telephone call at the family residence. The caller attempted to extort money from Oscar by threatening to kidnap or otherwise harm Maria and their daughters. Later that day, Oscar reported this extortion and threat of violence to the Anti–Extortion Task Force of the National Civil Police Department. Three days after the filing of this report, on February 28, 2011, the police and the Attorney General of El Salvador granted “victim status” to Oscar and his family under the Special Law for the Protection of Victims and Witnesses. Under this statutory protection, only investigators, prosecutors, and judges would have access to the family members' personal information. In all administrative and judicial records, because he was a victim of extortion, Oscar would be known by the password “MILTON.”
In the fall of 2011, the family traveled to Kentucky to visit Oscar's brother and Maria's family. Maria testified that they inquired about political asylum during this stay in the United States, due to the violence in El Salvador, and specifically, the threatening telephone call.
They traveled to the United States again in 2013 to visit family. On or around December 26, 2013, in El Salvador, Maria's sister received a threat from a gang of three people who came to her house while she was preparing to feed the cows. The gang specifically threatened to kill Maria if she ever returned to El Salvador from the United States. Maria's sister reported this threat to the police. Maria's mother contacted Oscar in the United States to tell him about this latest threat. On January 26, 2014, Oscar returned to El Salvador alone, without Maria and the daughters. At the same time, Maria and the daughters briefly stayed with her brother, Oscar Funes, in North Carolina. After a couple weeks in North Carolina, Oscar's nephew Llefren Velasquez picked up Maria and the daughters and drove them back to Manassas, Virginia.
The parties agreed that one purpose for Oscar's solo trip to El Salvador was to investigate the latest threat made against Maria's life. But Oscar also traveled to El Salvador to retrieve money so that he could purchase a house in the United States upon his return. The court found that between December of 2013 and February of 2014, when visiting relatives on the East Coast, Oscar's statements and conduct reflected his intent to purchase a home and settle his family in the United States. Oscar voiced dual intentions of buying a house and immigrating to the United States to others, who testified at trial. Additionally, Oscar went to the office of immigration attorney Luis Gonzalez in Arlington, Virginia, where Oscar inquired about acquiring an “investor's visa” and that his older daughter from his first marriage was assisting him in acquiring green cards for the family. Oscar admitted that one of the reasons he went back to El Salvador in January of 2014 was to get money to buy a house in the United States. Oscar also acknowledged meeting with an immigration attorney, where he explored the possibility of green cards for himself, Maria, and the daughters. Oscar returned to the United States on February 20, 2014, after he investigated the threat from December. Notably, Oscar entered the United States without a return flight to El Salvador for himself, Maria, or the daughters. Oscar was reunited with Maria and the daughters at Llefren and Jenny's townhouse in Manassas, Virginia, where they had been staying since their return from North Carolina; indeed, Oscar stayed there as well. The very next day, on February 21, 2014, Oscar and Maria took the daughters to get various immunizations for the purpose of enrolling them in the Prince William, Virginia public schools. Both Oscar and Maria visited the school that the daughters would attend.
However, only four days later, on February 25, 2014, Oscar booked a nonstop flight from Washington, D.C. to San Salvador for himself, Maria, and the daughters, which was to depart three days later, on February 28, 2014. There was no direct evidence in the record to suggest what prompted Oscar to book this flight. The evidence did show, however, that at some point between February 21, when the daughters were vaccinated, and February 25, when Oscar bought tickets for the flight to El Salvador, Oscar discovered that Maria was involved in a romantic relationship with another man, Stanley Mejia. Subsequently, on February 27, 2014, Maria told Oscar that she and the daughters would not be returning to El Salvador and instead were staying in Manassas, Virginia. The same day, Maria called the police alleging that Oscar was attempting to kidnap the daughters. The next day, Oscar returned to El Salvador alone. Maria and the daughters did not travel back to El Salvador with Oscar on February 28, 2014, but instead, stayed in the United States. Subsequently, in Prince William County, Virginia, the oldest daughter enrolled in elementary school on March 6, 2014, and the youngest daughter enrolled in pre-kindergarten activities on September 2, 2014. The daughters socialized with friends and attended birthday parties on the weekends. Maria and the daughters attend church on Sundays. Maria's sister lived in Maryland and she had uncles in the area. Maria and the daughters still residde at Llefren and Jenny's house in Manassas, Virginia with their three children and Stanley Mejia. In January or February of 2015, Maria met with an immigration attorney to discuss and pursue asylum for her and the daughters because she did not want to return to El Salvador due to the threats and instability. Maria filed for divorce in Prince William County, and Oscar filed for divorce in El Salvador.
The district court found that Maria's retention of the daughters was not wrongful because the daughters' habitual residence at the time of retention was the United States. Alternatively, even if the Court found in Oscar's favor on the first issue, the Court held that it would also find that returning the daughters to El Salvador posed a grave risk of physical harm. Accordingly, Oscar's petition was denied and dismissed.
The Court concluded that the daughters were habitually resident in the United States immediately prior to their retention under the two-part framework that has been adopted by the Fourth Circuit. Maxwell, 588 F.3d at 251. Because minor children like the daughters “normally lack the material and psychological wherewithal to decide where they will reside,” the Court looks to the shared parental intent of Oscar and Maria as the “persons entitled to fix the place of the child[ren]'s residence.” Mozes, 239 F.3d at 1076 ( As the court in Mozes recognized, in cases such as this where “the persons entitled to fix the child[ren]'s residence no longer agree on where it has been fixed ... [the Court] must determine from all available evidence whether the parent petitioning for return of [the] child[ren] has already agreed to the child[ren]'s taking up habitual residence where it is.” Based on the findings of fact, the Court concluded that this was a case “where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration ... [and that] despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely.” This finding supported the ultimate conclusion of “a mutual abandonment of the child's prior habitual residence. Oscar and Maria intended to abandon El Salvador and settle in the United States immediately prior to February 27, 2014, the date of retention. First, Oscar and Maria both had employment opportunities in the United States, the new country of residence.Second, even though Oscar had not yet purchased a home in the United States at the time of retention, nor had he sold his home in El Salvador, his actions, when viewed objectively, show that he intended to do so. Third, immediately prior to February 27, 2014, the date of retention, Oscar and Maria's marriage was stable.Fourth, there was no evidence in the record regarding “the retention of close ties to the former country [El Salvador],” or “the storage and shipment of family possessions.” Accordingly, these factors weighed neither in favor of El Salvador or the United States as the country of habitual residence.Fifth, Oscar, Maria, and the daughters had no legal status in the United States immediately prior to February 27, 2014. This weighs against the conclusion that the United States was the country of habitual residence. However, this factor is mitigated by the evidence in the record that shows both Oscar and Maria sought counsel from an immigration attorney regarding their status in the United States, and that Maria has subsequently taken steps to obtain asylum for her and the daughters. Lastly, the home environment in the United States was relatively stable immediately prior to the date of retention. Until Oscar discovered Maria's involvement with another man, the evidence in the record suggested that this home environment for the daughters was stable. This stands in stark contrast to the home environment in El Salvador, which was visited in December of 2013 by an armed gang that threatened the life of Maria and her daughters, should they ever return to El Salvador. Accordingly, this factor also supported a finding of parental intent to settle in the United States. Maxwell, 588 F.3d at 252. Ultimately, the objective evidence in the record, when viewed in light of the factors utilized by the Fourth Circuit, established by a preponderance of the evidence that Oscar and Maria shared parental intent for the daughters to habitually reside in the United States.
The court pointed out that the second question under the Mozes test is “whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Maxwell, 588 F.3d at 251. After turning to the objective factors announced in Maxwell, the Court concluded the daughters had acclimatized to the United States. First, the daughters were enrolled in Prince William County Public Schools. The daughters had been enrolled in school in the United States for a longer period of time than their enrollment in El Salvadorian schools.The youngest daughter was only eligible to be enrolled in pre-school activities the past fall at the age of five years old. And the eldest daughter was previously enrolled in school in Kentucky around 2011 for a period of time. Conversely, the only evidence of the daughters' schooling in El Salvador was a letter from the school that acknowledged their enrollment as of April of 2014. Thus, the daughters' lengthier period of schooling in the United States supported the conclusion that the daughters had acclimatized to the United States. Second, the daughters participated in social activities in their community and through school. Third, the relative stay of the daughters in the United States was shorter than the time they had spent in El Salvador, which counseled against acclimatization. Lastly, both daughters were still very young, which weighed in favor of their acclimatization to the United States. There was no evidence in the record about the daughters' familial or societal connections to El Salvador. Conversely, the daughters traveled to the United States at least once per year and had been in the United States close to one and a half years. They were both attending school and learning English. Moreover, Maria and the daughters had extended family in the United States. Thus, the young age of the daughters suggested that they had not yet acclimatized to El Salvador, but instead have started to acclimatize to the United States. The Court found that ordering the daughters return to El Salvador would not be tantamount to returning them home. Instead, ordering such a return would be tantamount to ripping the daughters out of a familial and social environment to which they have started to acclimatize, for the reasons discussed above. The Court therefore found that “there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Accordingly, the second factor also supported the conclusion that the daughters were habitually resident in the United States at the time of retention. For these reasons, the Court concluded that Maria's retention of the daughters in the United States was not wrongful.
In the alternative the court found by clear and convincing evidence that the daughters faced a grave risk of exposure to physical harm if the Court were to order their return to El Salvador with Oscar. The Court could not order their return for at least three specific reasons. First, El Salvador is one of the most dangerous and violent countries in the world. Even though homicides have decreased in recent years, extortion has not decreased and is more prevalent than ever. Second, this violence has specifically manifested itself in the form of at least two known threats of physical violence to Oscar's wife and daughters. In the most recent threat of December of 2013, three armed gang members confronted Maria's sister in person, held a machete to her throat, and threatened the life of Maria if she ever returned. This is a specific threat of violence that represents a grave risk of physical harm to Maria and her daughters should they return to El Salvador. Stated differently, it is not merely a possibility, but an actual, physical threat. Third, the Court found that these threats were credible because Oscar's daughter from a previous marriage was kidnapped and held for ransom over multiple days. This daughter was rescued and brought to safety only after an armed raid by the El Salvadorian military and a $30,000 payment by Oscar. Even though both extortion threats in this case had been reported to the police, there was no evidence in the record that any arrest was made, that either threat was not credible, and that additional threats or kidnap attempts would not happen in the future. The Court was not willing to order the return of two minor children to such a dangerous environment given the grave risk of physical harm they face in the form of extortion and kidnapping.
In re ALC, --- Fed.Appx. ----, Not for publication, 2015 WL 1742347 (C.A.9 (Cal.)) Sarodjiny "Sarah" Carlwig appealed the decision and order of the district court sending A.L.C. and E.R.S.C., her dual-national American and Swedish children, to Sweden.
The Ninth Circuit affirmed that part of the judgment of the district court that found A.L.C. was a habitual resident of Sweden, where he now resided with his father, Andreas Carlwig. It observed that when a child moves between nations and a parent files a Convention petition revealing a dispute over habitual residence, we first "look for the last shared, settled intent of the parents." Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir.2013). When an examination of shared intent does not resolve a dispute between two potential habitual residences, a child's newer residence can be found to be the child's habitual residence when "the objective facts point unequivocally" to "the child's relative attachments to the two countries [changing] to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed," a process known as acclimatization. Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). The court is mindful that it must be "slow to infer from contacts with a new country that an earlier habitual residence has been abandoned, both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purpose of the Convention."
It found that when the Carlwig family moved to Sweden in 2012, the Carlwigs abandoned any habitual residence that the family shared in Dubai, A.L.C.'s 2008 birthplace, and they established a regular household together, enrolled A.L.C. in local pre-school, and supported A.L.C.'s participation in soccer, swimming, and martial arts. A.L.C. spent time with his father's relatives and demonstrated fluency in the Swedish language. Over thirteen months, A.L.C.'s circumstances and activities demonstrated that he acclimatized to Sweden and that country became the primary locus of his life. It agreed with the district court that A.L.C. became a habitual resident of Sweden.
In February 2013, A.L.C. traveled to Los Angeles with his pregnant mother, leaving his father behind in Sweden. During several month in Los Angeles, A.L.C.
did develop contacts in the United States. Ms. Carlwig enrolled A.L.C. in summer camp, pre-school, and extracurricular activities. However, A.L.C.'s contacts developed in the shadow of disagreement between his parents over the trip's purpose. Ms. Carlwig argued that she intended to move permanently to the United States with A.L.C. The district court found that Mr. Carlwig believed the trip's purpose was for Ms. Carlwig to give birth and recover before returning with the children to Sweden. The district court did not err in holding that Mr. Carlwig intended A.L.C.'s trip to last approximately six months. During A.L.C.'s time in the United States, Mr. Carlwig maintained active involvement in his son's life, arranging regular communication with A.L.C. from Sweden, visiting A.L.C. in Los Angeles, and making preparations for A.L.C.'s return to Sweden. There was no evidence in the record of a shared parental intent for A.L.C. to move permanently to the United States and there was significant evidence of Mr. Carlwig actively objecting to A.L.C.'s time in Los Angeles lasting more than six months.
Without a shared parental intent for a permanent change of habitual residence, the court found that A.L.C.'s contacts and relative attachments in Los Angeles were insufficient to prove unequivocally that he had acclimatized to United States or that his habitual residence in Sweden had been abandoned. The district court was correct to order A.L.C. returned to his habitual residence, Sweden.
The Court vacated the judgment of the district court that E.R.S.C. was a habitual resident of Sweden. The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided. It held that it "interpret[s] the expression 'habitual residence' according to the ordinary and natural meaning of the two words it contains." "Habitual residence" describes "a factual state of affairs"
and [we] recognize[d] the obvious truth that "habitual residence cannot be acquired without physical presence." E.R.S.C. had never been to Sweden prior to the execution of the district court's order. The district court's effort to sift through the past intentions of Sarah and Andreas Carlwig to find a moment of settled, shared intent for E.R.S.C. to someday reside in Sweden was erroneous. It rejected the other rationales cited by the district court in deciding E.R.S.C. was a habitual resident of Sweden. The district court's explanations that it would be untenable to split up the siblings for custody determinations and that Mr. Carlwig was employed in Sweden while Ms. Carlwig "is unemployed here in the U.S. and rel[ies] on financial support from [the] Father as well as governmental assistance," because they go to the merits of the custody claims and are not relevant to the Convention's required analysis. See 22 U.S.C. s 9001(b)(4). It held that the district court clearly erred in finding E.R.S.C. was a habitual resident of Sweden and it vacated its decision.
The Ninth Circuit agreed with the district court's determination that E.R.S.C. was not a habitual resident of the United States. It observed that a child's "place of birth is not automatically the child's habitual residence." Holder, 392 F.3d at 1020. The court has found that when "a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country."E.R.S.C. was not born into that simple situation. Nor was E.R.S.C.'s habitual residence derived automatically from her mother's location and caregiving. See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir.1995); Friedrich v. Friedrich, 983 F.2d 1396, 1401-02 (6th Cir.1993) . Justifying E.R.S.C.'s habitual residence as the United States based on her contacts in Los Angeles was ineffective as "it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment." When a child is born under a cloud of disagreement between parents over the child's habitual residence, and a child remains of a tender age in which contacts outside the immediate home cannot practically develop into deep-rooted ties, a child remains without a habitual residence because if an attachment to a State does not exist, it should hardly be invented. The Court found that E.R.S.C.'s nine months as an infant in Los Angeles did not result in E.R.S.C. acquiring habitual residence in the United States when E.R.S.C.'s parents never shared an intent for her to reside in the United States beyond Ms. Carlwig's period of recovery after giving birth.
Thus when Mr. Carlwig filed his Convention petition in February 2014, E.R.S.C. did not have a habitual residence. E.R.S.C.'s retention by her mother in the United States was not wrongful under the Convention and the district court erred in ordering E.R.S.C.'s return to Sweden. Further, E.R.S.C. was not wrongfully retained by her father in Sweden under the Convention now as she was not removed from her country of habitual residence to Sweden. Because E.R.S.C. had no habitual residence, no further analysis of this matter under the Convention and its implementing legislation was possible, as the Convention does not apply to a child who was never wrongfully removed or retained.
The Curt recognized that while it did have the equitable power to undo the district court's action by issuing a re-return order, see Chafin v. Chafin, 133 S.Ct. 1017, 1024 (2013), but it declined to do so.
The district court's decision is was affirmed in relation to A.L.C. and vacated in relation to E.R.S.C.
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.
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.
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.
