Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449 (3rd Cir., 2017) [Germany] [Habitual residence] [Petition denied]

In Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449  (3rd Cir., 2017) the Third Circuit affirmed an order of the district court which denied the Petition of Charles Blackledge, a United States citizen who currently resided in Berlin, Germany, for the return of his then-eight-year-old son to Germany. 

J.B., a United States citizen, was born in the Ukraine in 2008 to Petitioner and Respondent Olga Blackledge, a Ukrainian citizen and lawful permanent resident of the United States who currently resided in Pittsburgh, United States. In the spring of 2011, Petitioner secured a job as a patent agent in Germany at about the same time Respondent was accepted to a Ph.D. program at the University of Pittsburgh. In the summer of 2013, after Respondent and J.B. had lived in Pittsburgh for two years, J.B. underwent cardiac surgery at the Children’s Hospital in Pittsburgh. Petitioner went to Pittsburgh to be with J.B. during his recuperation and to seek jobs in the United States. When those efforts proved fruitless, Petitioner decided to return to Germany and Respondent agreed to join him, both because she had agreed, before the initial move to Pittsburgh, to move to Germany for two years and because she was financially unable to support herself at that point. After the move, Respondent continued to pursue her Ph.D. studies at the University of Pittsburgh, remotely, and J.B. was enrolled in the J.F.K. School in Germany .In August 2015, when J.B. was seven years old, Respondent sought to return to Pittsburgh to complete the final phase of her Ph.D. program. By this point, according to both parties, the marriage had become acrimonious, and, according to Respondent, they had “agreed that [they would] divorce. Petitioner initially agreed that Respondent and J.B. would return to Pittsburgh, and they requested a one-year leave of absence for J.B. from the J.F.K. School. In Pittsburgh, J.B. attended second grade in the 2015-2016 school year and, according to his teacher, “performed as a wonderful second grader.” In February 2016, Petitioner initiated a series of emails with Respondent that formed the bulk of the record of the parties’ shared intent as to J.B.’s habitual residence. These began with Petitioner’s request that Respondent “confirm [her] commitment to our agreement” that J.B. would return to Germany for the 2016-17 academic year. Respondent did not deny the existence of an agreement but asked the Petitioner to “reconsider it,” explaining, “I do not think ... it is a good idea for a child [J.B.’s] age to live with one parent for a year, and with the other for a year”. That agreement, Respondent stated, “presupposes ... yearly adaptation to living with different parents [which] is psychologically disadvantageous” to J.B., and urged Petitioner to consider J.B.’s well-being, suggesting that Petitioner move “somewhere close” so that they could both “take care of [J.B.] on a permanent basis” and not “change [J.B.’s] permanent caregiver every year.” In response, Petitioner observed that Respondent had not expressed any concerns about J.B. “spend[ing] alternate years with us when the agreement was made.”  And while Petitioner acknowledged Respondent’s “concerns about stability of dwelling,” he explained that he did not “think there [we] re better options than maintaining [their] previous agreement,” which he characterized as: “[J.B.] would go with you to Pitt [sburgh] and return to me for 2016-2017 academic year. Then back to you ....”  In subsequent correspondence, Petitioner advised Respondent to “prepare [herself] for fulfillment of [the] agreement that [J.B.] returns to [Respondent] for 2016-2017,” reassuring her, “You’ll have him again in 2017,”  And in May, the parties again discussed the prospect of J.B. alternating years between his parents, with Petitioner documenting in his notes of their call that Respondent continued to oppose “any plan for [J.B.] to alternate between Germany and [the] USA,” because she believed that it “put [ ] too much pressure on [J.B.] to go back and forth” and “insist[ed] upon more consistency.” 

         While the dispute between the parties over J.B.’s long-term residency arrangements was ongoing, Respondent filed petitions for divorce and custody.  On July 6, 2016, Petitioner filed a petition in the United States District Court seeking J.B.’s return to Germany. The District Court held a two-day bench trial and entered an order denying the petition. The District Court calculated the retention date as August 2016.  The District Court correctly recognized that it was required to consider both the parents’ shared intent and the child’s acclimatization. As to shared parental intent, it concluded there was “no credible evidence” that the parties agreed that J.B.’s stay would be for a “specific duration.” And, considering evidence of J.B.’s activities and expectations up until the August retention date, the Court concluded that J.B. was acclimatized to Pittsburgh. 

The Third Circuit concluded that the proper retention date was July 6, the date petitioner filed his Hague Convention petition.  The Third Circuit held that the retention date is the date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof. That determination is, by necessity, fact-intensive and will vary with the circumstances of each case. While in some cases the notice date and actual expiration date will coincide, in other cases the notice will indicate a future date as the date consent will be withdrawn, in which case that latter date, depending on the facts of the case, will constitute the expiration date and, hence, the retention date.

  In determining the retention date here, it concluded  that the District Court erred by looking solely to Petitioner’s original consent for J.B. to reside in Pittsburgh through August 2016 and failing to assess whether Petitioner’s subsequent communications, up to and including the filing of his Hague Convention petition, effected a withdrawal of that consent. Consistent with Karkkainen, it also rejected Petitioner’s argument in favor of a June 9, 2016 retention date, as that date reflected merely Petitioner’s notice of a possible expiration of consent on June 19, 2016. Distinguishing the facts in Karkkainen it noted that Petitioner only researched the possibility of purchasing a ticket; Respondent, not Petitioner, flagged a concern about “abduct [ion],” and Petitioner left open the possibility of further negotiations, stating after his demand email that he was “still waiting to hear anything more from the mediators.”  Under these circumstances, it concluded neither June 9 nor June 19 was the retention date, and in the absence of any earlier communication in which Petitioner clearly and unequivocally withdrew his prior consent and sought to reassert his custody rights, it held that consent expired and J.B. was therefore “retained” on the date Petitioner filed his Hague Convention petition, i.e., July 6.

       The Court explained that a child’s habitual residence is “the place where [the child] 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.” Baxter v. Baxter, 423 F.3d 363, 368 (3d Cir. 2005) To assess whether a child’s habitual residence meets this threshold it analyzes both the child’s acclimatization and the “shared parental intent”—a factor that is relevant because “the child’s knowledge of [his parents’] intentions is likely to color [his] attitude to the contacts [he] is making” and “affect the length of time necessary for a child to become habitually resident or otherwise influence a child’s ability to acclimatize,” and, in addition, because it bears on the parents’ own intentions “regarding their child’s presence in a particular place.” Karkkainen, 445 F.3d at 292, 296.  As a general matter “courts will find no change in habitual residence” where the evidence of shared parental intent reflects that the “child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration.” Whiting v. Krassner, 391 F.3d 540, 549 (3d Cir. 2004). However, it has recognized an exception to this general rule where a move, though temporary, carries “a degree of settled purpose ..., even if such purpose is only for a limited period.”  The concept of “settled purpose,” does not require an intention “to stay ... indefinitely,” and may in fact be for a “limited period,” precipitated by various motivations, including “[e]ducation, business or profession, employment, health, family or merely love of the place.” Feder, 63 F.3d at 223-24. Regardless of the motivation for the location selected, or whether the stay was meant to be permanent or temporary, “[a]ll that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.” 

  As to the relative weight given the parents’ shared intent and the child’s acclimatization, the Court has held that when a child is very young, he “cannot possibly decide the issue of residency,” and the parents’ shared intent is, thus, “of paramount importance,” while acclimatization is secondary, Karkkainen, 445 F.3d at 296. However, once a child is old enough “to develop a certain routine and acquire a sense of environmental normalcy,” acclimatization becomes the central inquiry. Whiting, 391 F.3d at 550-51. Although it has not fixed the age when acclimatization takes on this greater significance, and it necessarily will vary depending on the maturity and cognitive and social abilities of the child in question, it has recognized that a typical four-year-old child “certainly has this ability” because he is “able to develop a certain routine and acquire a sense of environmental normalcy” and is “not only aware of those around him, but is able to form meaningful connections with the people and places he encounters each day.” At that point, because the child has “reached an age where [he is] capable of becoming firmly rooted in a new country,” it attaches greater significance to acclimatization and give “less weight to shared parental intent.” Karkkainen, 445 F.3d at 296.
  The District Court declined to apply the presumption that there is, ordinarily, no change in habitual residence when the child’s move is for a “specific, limited duration” because it found that there was “no credible evidence” that the parties had an agreement that J.B.’s stay in Pittsburgh would be for a “specific duration.” It agreed with Petitioner that this finding was clearly erroneous, given the evidence that there was such an agreement. But because that evidence overwhelmingly demonstrated the parties intended J.B.’s residence in Pittsburgh, albeit of specific, limited duration, to carry “a degree of settled purpose,” Whiting, 391 F.3d at 549, it nonetheless concluded that the “shared parental intent” factor favored the United States as J.B.’s habitual residence.

The Court could not agree with the District Court that there was no credible evidence that the parties had agreed J.B.’s stay in Pittsburgh was intended to be for a specific duration.  Although the District Court was correct that the parties’ emails stop short of identifying a date certain that was originally agreed for J.B.’s return, or similarly “specific terms of the agreement,” they made clear that the parties intended J.B.’s stay in Pittsburgh to be of a “specific, limited duration,”  Notwithstanding such error, “we may affirm on any grounds supported by the record,” and “[w]hen the outcome is clear as a matter of law ... remand is not necessary,” Mahmood v. Gonzales, 427 F.3d 248, 253 (3d Cir. 2005). Here, it concluded such an outcome was clear as a matter of law because this case was on all fours with its decision in Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004).  Here it was evident that J.B.’s move to the United States, although of limited duration, was intended by both Petitioner and Respondent to be accompanied by a degree of “settled purpose.” The record reflected that J.B. moved to Pittsburgh in August 2015 for the purpose of assuming a full and normal life of an eight-year-old boy during the intended period of his stay, making long-term friends and plans, developing routines and a sense of environmental normalcy, exploring his city and other parts of the Commonwealth, and putting down roots, not only for the 2015-2016 school year, but also, per the parents’ express agreement, for future alternating years, interspersed with the years he would be living with Petitioner in Germany. Under these circumstances, as in Whiting, the fact that the parties understood that J.B. would return to Germany “d [id] not in any way diminish ... the parties’ settled intention” that he was to remain in the United States for at least a year, settling into a normal routine, and the fact that J.B.’s stay was intended to be of a limited duration “in no way hinder [ed]” a finding that the United States was his habitual residence during that time. 

The Court emphasized that the parents’ shared intent as to the custody arrangement between them is probative—but not dispositive—in the determination of habitual residence. It views a parental agreement that a child will split time between the parents’ countries of residence as a significant consideration, but as one among others, informing the “necessarily fact-intensive and circumstantially based” inquiry a court must undertake to determine whether a child’s move was accompanied by a “degree of settled purpose.” Undertaking that inquiry here, it considered, in addition to the other record evidence discussed above concerning the parents’ shared expectations for J.B.’s move to Pittsburgh in 2015, the parents’ agreement that J.B. would “alternate between Germany and [the] USA” going forward, and, hence, that J.B. would be returning to Germany for only a single academic year before resuming his residence in Pittsburgh for the 2017-2018 year. In view of that agreement and the totality of the record in this case, was apparent that J.B.’s 2015 move to Pittsburgh was accompanied, through at least the July 6, 2016 retention date, by the requisite “degree of settled purpose” and that the element of shared parental intent thus supports the United States as J.B.’s then-habitual residence.10 Whiting, 391 F.3d at 549. The evidence of J.B.’s acclimatization to Pittsburgh as of July 6, 2016 was overwhelming. He had a tremendously successful academic year. The record demonstrated that J.B. was sufficiently mature to form “meaningful connections with the people and places he encounter[ed]” in Pittsburgh. and “ha[d] attained a sufficient degree of continuity to be properly described as settled,”  Given the extensive record evidence of J.B.’s success in school, his participation in various activities and sports, his many friendships, his experiences at cultural, entertainment, and sporting events, and his own stated preference for the United States, to which the District Court afforded “significant weight” because of “the degree of maturity and situational awareness” J.B. exhibited,  the District Court did not clearly err in its fact-finding related to J.B.’s acclimatization, nor did it commit legal error in its determination that J.B. was acclimatized to the United States at the time of retention.

  Because the parents’ shared intent was for J.B. to move to the United States with a “degree of settled purpose,” and because J.B. had acclimatized to the United States by the date of retention, it agreed with the District Court’s holding that the United States was J.B.’s habitual residence immediately prior to the retention date and that the retention therefore was not wrongful under the Hague Convention. 

Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) [United Kingdom] Habitual Residence] [Petition denied]

         In Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) the Father Faisal Ahmed claimed that his wife, Mardia Mohsin Ahmed wrongfully retained their daughters in Knoxville, Tennessee, from the infants’ habitual residence in the United Kingdom, and filed a petition for their return. The district court held that he failed to establish that the the United Kingdom was the children’s habitual residence at the time Mrs. Ahmed retained them. The Sixth Circuit affirmed.  

Mr. Ahmed was a citizen of the United Kingdom and resided in London. Mrs. Ahmed was a United States citizen and resided in Knoxville, Tennessee. The couple married in Bangladesh in December 2009. At the time, Mr. Ahmed lived in London and Mrs. Ahmed was an optometry student in Michigan. After the wedding, Mrs. Ahmed remained in Michigan to complete her studies. Mr. Ahmed visited periodically from London. In August 2011, Mrs. Ahmed moved to London to live with her husband. She obtained a visa, began working, and took steps to become licensed to practice optometry in the United Kingdom. Mrs. Ahmed returned to the United States in December 2011 for additional training needed to practice optometry in the United Kingdom. Mrs. Ahmed did not return to London until August 2013, which she considered a permanent move. That October she applied for Indefinite Leave to Remain (“ILR”) in the United Kingdom, stating in the application that she had considered London her permanent home for the previous two years. Mrs. Ahmed received her ILR the next year. In February 2014, Mrs. Ahmed became pregnant and was put on bed rest by her doctor for months. In April, she registered for an exam required to practice optometry in the United Kingdom. The couple had a bitter argument in May 2014. Mrs. Ahmed then traveled to Knoxville, where she had lived previously. Mrs. Ahmed maintained she did not plan to return. She contended that she did not return to the United Kingdom because of her high-risk pregnancy and the acrimony in her marriage. Mr. Ahmed traveled to Knoxville in October 2014 on a three-month visa in anticipation of the birth of their children. November 2014, Mrs. Ahmed gave birth to twins in Knoxville. After a few days, the family moved into a local apartment, where Mr. Ahmed cared for the children as his wife recovered from childbirth. 

         In January 2015, Mr. Ahmed’s visa expired and he returned to London. Mrs. Ahmed insisted she told Mr. Ahmed then that she intended to remain in the United States with the children indefinitely. Mrs. Ahmed moved with the children to her parents’ home in Knoxville, where they live today. The children received medical care in Knoxville from birth until May 2015. Mr. Ahmed returned to the United States in April 2015. The next month, the entire family traveled to the United Kingdom. Once there, they moved into Mr. Ahmed’s parents’ home for one or two months. Mrs. Ahmed asserted that she left Knoxville “for a short summer visit” “to see if [their] marriage was going to work.” Mr. Ahmed believed this to be a permanent move. Mrs. Ahmed traveled on a round-trip ticket with a return scheduled for November 2015. Mrs. Ahmed states she left her valuables in Knoxville, including her optometry instruments, jewelry and diplomas. Mr. Ahmed insists that his wife took nearly everything important to London. Mrs. Ahmed’s friend testified that Mrs. Ahmed planned to return to Knoxville to live, and the children’s medical records from May 2015 reflect appointments for that fall. Mrs. Ahmed did not sell her car or cancel her auto insurance in the United States, retained American medical insurance for herself and the children, renewed her Tennessee optometry license and professional liability insurance, and paid her Tennessee professional privilege tax before leaving for London. Once in London, however, Mrs. Ahmed took the exam required to practice optometry in the United Kingdom. She also registered the children with the National Health Service and took them for a check-up in London. In July 2015, Mrs. Ahmed traveled with the children to a wedding in Bangladesh. Their tickets indicated they were scheduled to return to London on August 5. Mrs. Ahmed claimed she told her husband upon leaving London that she would not return. Mr. Ahmed claimed he did not learn her plans until August 4, when she flew to Knoxville with the children.

In March 2016, Mr. Ahmed filed this action in the district court. The district court denied Mr. Ahmed’s petition for return. The Sixth Circuit noted that the question of which standard should be applied in determining a child’s habitual residence under the Hague Convention is one of law, and is reviewed de novo. But the determination of habitual residence is “one of fact, and is reviewed for abuse of discretion.” It reviews underlying legal conclusions de novo and factual findings for clear error. “Under the clear-error standard, we abide by the court’s findings of fact unless the record leaves us with the definite and firm conviction that a mistake has been committed.” The only issue on appeal was whether Mr. Ahmed had shown by a preponderance of the evidence that the United Kingdom was their habitual residence on August 4, when she traveled from Bangladesh to the United States.

           The district court concluded that it was bound by circuit precedent to apply the “acclimatization standard” to determine the children’s habitual residence under the Hague Convention. Under this standard, “a court should consider whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Simcox, 511 F.3d at 602 “[A]cademic activities” are “highly suggestive of acclimatization” and “social engagements, participation in sports programs and excursions, and meaningful connections with the people and places in the ... country all point to the child being acclimatized.” Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009). Because the children were infants, however, its analysis boiled down to a simple comparison between the length of stay in each country—six months in the United States and seven to eight weeks in the United Kingdom. The district court concluded the latter was insufficient to establish a habitual residence and thus denied Mr. Ahmed’s petition. At the same time, the court noted the infants’ inability to partake in “school, sports or other extra-curricular activities, or meaningful friendships.” The district court devoted most of its analysis to any shared parental intent between the Ahmeds and made factual findings under that standard. In sum, the district court found “no settled mutual intent during the children’s lives and much of Mrs. Ahmed’s pregnancy.” 

           The Sixth Circuit considered the parties settled mutual intent in disposing of Mr. Ahmed’s petition. It observed that it generally preferred the acclimatization standard because it serves one of the main purposes of the Hague Convention: ensuring a child is not kept from her family and social environment. This ceases to be a concern, of course, if a child never forms such ties or is incapable of doing so. It did not reach the issue of especially young children in Friedrich I. Consequently, incorporating the shared parental intent standard in cases concerning especially young children would mean addressing a gap, not overturning precedent. The most compelling reason for applying the settled mutual intent standard is the difficulty, if not impossibility, of applying the acclimatization standard to especially young children. The period a child spends in a given location is but one component of acclimatization. Not only must the child have “been present long enough,” but he or she must have developed a “degree of settled purpose [there] from [her own] perspective.” What a child does in a country and how she feels about it are as important as the length of her stay there. As a result, virtually all children who lack cognizance of their surroundings are unable to acclimate, making the standard generally unworkable. It held that it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence. This is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case. It made no changes to the acclimatization standard itself, which lower courts should continue to apply in accordance with its precedent.
 Beginning with the acclimatization standard, the district court properly found that the twins’ seven-to-eight-week stay in the United Kingdom hardly allowed them to acquire a “degree of settled purpose” there. As infants, they were unable to do so anywhere when Mrs. Ahmed traveled with them to the United States in August of 2015. The conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent to determine if Mr. Ahmed has shown that the United Kingdom was the children’s habitual residence when they were retained. The district court’s factual findings showed that Mr. Ahmed has failed to carry his burden under the shared parental intent standard. He relied on the court’s finding of the couple’s settled mutual intent to live in the United Kingdom in the fall of 2013, before the twins were conceived. But what matters is where the Ahmeds intended the children to live. Nicolson, 605 F.3d at 104; Gitter, 396 F.3d at 133, 135; Feder, 63 F.3d at 224. There was no error in the district court’s findings of fact as to the Ahmeds’ lack of shared intent as to their children’s residence. The district court’s detailed factual findings established that the Ahmeds’ mutual intent for where their children would live was either unclear or absent from the time the children were conceived until Mrs. Ahmed retained them. Accordingly, Mr. Ahmed had not proven by a preponderance of evidence, under either standard, that the United Kingdom was the children’s habitual residence when Mrs. Ahmed traveled with them to the United States in August of 2015.

Cartes v Phillips, --- F.3d ----, 2017 WL 3141036 (5th Cir, 2017) [Paraguay] [Petition granted] [Habitual residence]

  In Cartes v Phillips, --- F.3d ----, 2017 WL 3141036 (5th Cir, 2017) Sebastian Cartes, the father of a three-year-old girl, O.C.P., petitioned to order Lisa Phillips, O.C.P.’s mother and Cartes’s wife, to return O.C.P. to Paraguay, where she had lived with both Cartes and Phillips from October 2015 to October 2016. 

       Cartes, a U.S. citizen who grew up in Paraguay, and Lisa Phillips, a U.S. citizen, met in California in 2012 and married there in February 2013. Their daughter, O.C.P., was born in California on September 23, 2013. Cartes and Phillips’s marriage was marked by drug use (Cartes’s), sickness (O.C.P.’s), and frequent travel and relocation. Neither Cartes nor Phillips had a job; they relied almost exclusively on Cartes’s mother Sarah, the sister of Paraguay’s current president, to pay their expenses. One month after O.C.P. was born, the family moved to Houston, where Phillips’s parents live. The family lived there for about two years. When Cartes wasn’t in rehab, the family lived together until September 2014, when Phillips and O.C.P. moved out and separately rented an apartment. From June through September 2015, Cartes and Phillips looked for apartments to rent in California. 

          Cartes testified that sometime in the spring of 2015, he moved to Paraguay without Phillips and O.C.P. to live there more permanently. He returned to the United States in early September to collect the rest of his things. At this time, he and Phillips talked about divorce. Cartes consulted with two divorce lawyers and sent Phillips an email telling her that he was leaving for Paraguay without her. At the district court’s bench trial, Cartes admitted that “at that time what was going through [his] mind [wa] s ... going back to Paraguay and ending [their] marriage.” He “wasn’t thinking at the time of ... [his] wife and child—or where they would live.”  A month later, on October 18, 2015, Phillips and O.C.P. flew to Paraguay. According to Cartes, before Phillips and O.C.P. arrived in Paraguay, he and Phillips “had several conversations about the possibility of going to live in Paraguay [for] employment, the financial future of [their] family, [and] the fact that [they] would have assistance with [their] daughter [from] nannies, parents and so on.” According to Phillips, however, she and O.C.P. weren’t moving to Paraguay. Rather, they wanted to be there when Phillips’s sister-in-law gave birth to Phillips’s nephew (O.C.P.’s cousin). Before leaving Houston, Phillips renewed the lease for her apartment. While in Paraguay, Phillips and O.C.P. traveled back to the United States at least twice. O.C.P. continued to have American health insurance and saw doctors in the United States. Similarly, Phillips maintained American health insurance for herself and Cartes. She also kept a car in Houston and paid her car insurance regularly while she was in Paraguay. But Cartes testified that he and Phillips also decided to develop O.C.P.’s connection to Paraguay. For example, the two decided that O.C.P. would attend a Paraguayan preschool, and school records reflected that she regularly attended.

  Cartes also testified that although he and Phillips fought frequently, they “always intend[ed] to reconcile.” According to Cartes, “[Phillips] agreed that she wouldn’t be as happy anywhere else and that she would be fine and happy there and that [Paraguay] was also her home.” Cartes reiterated that Phillips agreed that Paraguay “would always be” both her and O.C.P.’s “home” or “base.” Text messages between Cartes and Phillips illustrated that Phillips described Paraguay as “home.”  On October 23, 2016, Phillips decided to leave Paraguay, and she flew back to Houston with O.C.P. October 24. On December 1, 2016, Cartes filed a petition for O.C.P.’s return to Paraguay. On March 6, 2017, the district court ruled in favor of Cartes, finding that Paraguay was O.C.P.’s habitual residence and that Phillips had wrongfully removed her to the United States. 
The Fifth Circuit affirmed. It rejected Respondents argument that the district court applied the wrong legal standard because the district court did not point to any “explicit meeting of [Cartes’s and Phillips’s] minds to abandon the United States” as O.C.P.’s habitual residence before they traveled to Paraguay in October 2015. Phillips was correct that the “threshold” inquiry under its approach is whether “both parents intended for the child to abandon the habitual residence left behind.” Berezowsky, 765 F.3d at 578. However, that the district court did not legally err. The district court quoted circuit authority recognizing abandonment as the threshold inquiry and analyzed the parties’ positions in light of these references. It also rejected Respondents argument that it nonetheless factually erred by finding that Cartes and Phillips jointly intended to make Paraguay O.C.P.’s habitual residence before Phillips and O.C.P. returned to the United States. The district court’s habitual-residence finding that Cartes and Phillips were “determined to make a home for themselves and their minor child” in Paraguay was not “implausible” and thus not clearly erroneous. See Berezowsky, 765 F.3d at 466 & n.7. The record supported Cartes’s testimony, on which the district court heavily relied, that despite discord, he and Phillips agreed Paraguay would be O.C.P.’s habitual residence. Cartes also testified that during certain periods of reconciliation—specifically June, July, and August of 2016—he told Phillips that he wanted O.C.P. to live in Paraguay permanently and that Phillips agreed Paraguay “would always be” home to both her and O.C.P. See id. at 468 (“[S]hared parental intent requires ... the parents [to] reach some sort of meeting of the minds regarding their child’s habitual residence, so that they are making the decision together.”). Text messages between Cartes and Phillips supported the district court’s decision to credit Cartes’s version of events. 

           The Court observed that parents’ shared intent about their child’s habitual residence does not—and need not—always coincide with the child’s initial change in location. Sometimes, “the family as a unit has manifested a settled purpose to change habitual residence ... when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country.” Mozes v. Mozes, 239 F.3d 1067, 1076-77 (9th Cir. 2001). In other cases, a parent may have “earlier consented to let the child stay abroad for some period of ambiguous duration [, but] circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely.” Accordingly, it could not say that the district court’s finding of habitual residence was implausible in light of the record as a whole.

The Fifth Circuit agreed with Phillips that the district court erred by excluding evidence of emails between Cartes and various real estate agents in California. It noted that its approach to determining a child’s habitual residence is a subjective test requiring district courts to ascertain “parents’ intent or settled purpose” about their child’s home. With typical Convention cases between estranged spouses, it has encouraged courts to consider not only the parties’ testimony, but also, more generally, “all available evidence.” Because the threshold for relevance is “low,” Hicks-Fields v. Harris Cty., 860 F.3d 803, 809 (5th Cir. 2017), documentary evidence tending to corroborate testimony about the parties’ shared intent is likely to be relevant in most Convention cases. But any error in this case was harmless. 

Cunningham v Cunningham, --- Fed.Appx. ----, 2017 WL 3867813 (Mem) (11th Cir., 2017)[Japan][Petition granted]

In Cunningham v Cunningham, --- Fed.Appx. ----, 2017 WL 3867813 (Mem) (11th Cir., 2017) after custody disputes in Florida state court led to Mr. Cunningham’s mother, Glenda Cunningham, obtaining physical custody of the minor child, and Mrs. Cunningham’s then abrupt departure from the United States to Japan, Mrs. Cunningham a verified petition for the return of her child pursuant to the Hague Convention to have the child returned to Japan. The district court concluded that the child’s habitual residence—before Mr. Cunningham and his mother retained the child—was Japan, that the child had been wrongfully retained in the United States, and that the child should return to Japan. The district court also concluded that Mr. Cunningham had failed to prove his affirmative defenses, finding that Mr. Cunningham did not establish that Mrs. Cunningham acquiesced to the child’s residence in the United States, that the child would be subject to a grave risk of harm if it were to return to Japan, or that the child was well-settled in the United States. Mr. Cunningham and his mother now appeal. The 11th Circuit affirmed.  It observed that a district court’s determination of a child’s habitual residence under the Hague Convention is reviewed as a mixed question of law and fact, so underlying factual determinations are reviewed for clear error and the application of legal principles to the facts are reviewed de novo. See Ruiz v. Tenorio, 392 F.3d 1247, 1251–52 (11th Cir. 2004). A district court’s rulings as to a respondent’s affirmative defenses under the Convention are similarly reviewed under a mixed standard of review. See Seaman v. Peterson, 766 F.3d 1252, 1258, 1261–62 (11th Cir. 2014) (applying a mixed standard of review in a case involving a grave risk of harm defense).” It affirmed for the reasons set forth in the district courts order.

The New York Matrimonial Trial Handbook, by Joel R. Brandes

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is not a treatise. It is a “how to” book for lawyers. This 800 page handbook is a companion work to Law and the Family New York, 2d (Thomson Reuters Westlaw), which contains extensive coverage of the substantive and procedural law related to matrimonial actions and family court proceedings. 

The New York Matrimonial Trial Handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action.  It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof.  There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses.

The  New York Matrimonial Trial Handbook, by Joel R. Brandes will be in  bookstores and available on line in  October 2017.   Click on the title for more information about the contents of the book.  Click on this link for the complete table of contents.

If you would like to be notified when The New York Matrimonial Trial Handbook is on sale send an email to joel@nysdivorce.com with the words “notify me” in the subject line and your email address. The anticipated publication date is October, 2017.

Oliver A v Diana Pina B, --- N.Y.S.3d ----, 2017 WL 2467202, 2017 N.Y. Slip Op. 04548 (1st Dept., 2017) [Norway][Grave Risk of Harm][Petition denied]

In Oliver A v Diana Pina B, --- N.Y.S.3d ----, 2017 WL 2467202, 2017 N.Y. Slip Op. 04548 (1st Dept., 2017) the parties were married in New York in 2009, and their two children were born in Norway in 2010 and 2012. The family lived in Norway and also spent months at a time living in the maternal grandmother’s apartment in New York. In 2013, after the mother was directed to leave Norway, the parties sold much of their personal property and their car, and went to the Dominican Republic. They then went to New York and stayed with the maternal grandmother. In about March 2014, the father returned to Norway to look for an apartment and job, with the expectation that the mother would follow with the children. In court, the parties both confirmed their understanding that the mother would return to Norway with the children when he was settled. However, the mother testified that, following a long history of domestic violence, including a choking incident in February 2014 where the police were called she determined not to return to Norway and told the father she would not return.  In April 2015, the father filed a petition for the return of the children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. 

The Appellate Division observed that a petition will be denied if the parent opposing return of a child establishes “by clear and convincing evidence” the exception set forth in article 13b of the Convention (22 USC § 9003[e][2][A] )—namely, that “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” (Hague Convention art 13 [b] ). It noted that the determination of a child’s “habitual residence” requires inquiry into the “shared intent” of the parents “at the latest time that their intent was shared,” taking into account the parents’ “actions [and] declarations,” as well as “whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent” (Mota, 692 F3d at 112, quoting Gitter v.. Gitter, 396 F3d 124, 134 [2d Cir2005] ). 

Although the record supported Family Court’s determination that the parties’ last shared intent was to return to Norway, the court did not consider the mother’s evidence that the children had been acclimatized to New York, and whether that evidence trumped the parents’ shared intent (see also Hofmann v. Sender, 716 F3d 282 [2d Cir2013] ). It concluded that the mother met her burden to show, by clear and convincing evidence, that the children’s return to Norway would result in a grave risk of harm to them (Blondin v. Dubois, 189 F3d 240, 245 [2d Cir1999] ). The mother presented detailed testimony of multiple acts of domestic abuse towards her by the father, at times in the presence of the parties’ children. She also presented corroborating evidence, including the testimony of the maternal grandmother, who witnessed two of the violent incidents, including the February 2014 incident, and testified to visible signs of injury to her daughter, which was also noted in a Domestic Incident Report. The mother also submitted copies of text messages sent by the father threatening the mother’s life. She further showed that the father had a propensity for violent abuse, as demonstrated by his violent acts, jealous rages, and, on at least two instances, forceful treatment toward the older daughter (see Ermini v. Vittori, 758 F3d 153, 164–165 [2d Cir2014]; Souratgar v. Lee, 720 F3d 96, 104 [2d Cir2013]; Blondin, 189 F3d at 247). The mother presented evidence that the nature of the abuse was such that it would inevitably resume if the parties were reunited. The father acknowledged that the parties fought over the mother’s infidelity, but broadly denied the mother’s claims, other than admitting to pushing or grabbing the mother to restrain her. His testimony, however, was entirely uncorroborated. The mother further presented evidence that, as a noncitizen of Norway, there would be minimal, if any, domestic violence resources available to her if she were to move there with the children, and that, due to her immigration status, she would not be allowed to live there for more than 90 days.

Cohen v Cohen, --- F.3d ----, 2017 WL 2453777 (8th Cir.2017) [Israel][Habitual residence][Petition denied]

         In Cohen v Cohen, --- F.3d ----, 2017 WL 2453777 (8th Cir.2017 ) the 8th Circuit affirmed the district court’s denial of Yaccov Cohen’s petition for return . Yaccov Cohen and Ocean Cohen were the parents of O.N.C., who was born on December 6, 2009 in Israel. During the first three years of O.N.C.’s life, the Cohens lived together as a family in Israel. Between 2010 and 2011, Yaccov served approximately one year in jail on various criminal charges. Shortly after Yaccov’s release, Ocean and two of her brothers discussed the possibility of her family moving to St. Louis to join them. However, Yaccov was subject to a Stay of Exit Order placed on his visa that prevented him from leaving Israel until he paid his accumulated debt, which included criminal fines, penalties, and restitution payments. Yaccov and Ocean decided that Ocean and O.N.C. would move to St. Louis, and that once there Ocean would work to help Yaccov pay off his debt so he could join them. Ocean testified that they intended to move permanently to the United States, while Yaccov testified that they intended to move for a period of three to five years. To prepare for the move, Yaccov and Ocean went to the United States Embassy together to submit naturalization paperwork for O.N.C. In December 2012, Ocean and O.N.C. traveled to St. Louis. Ocean promptly enrolled O.N.C. in school and speech therapy, found O.N.C. a pediatrician, and secured employment. Ocean purchased a vehicle, obtained a driver’s license, and eventually rented an apartment. As arranged, Ocean sent money to Yaccov to help pay off his debts. In May 2013 and April 2014, Ocean and O.N.C. visited Yaccov in Israel for approximately two weeks each time. During the April 2014 visit, it became apparent that the marriage was deteriorating. Shortly before Ocean and O.N.C. were scheduled to return to St. Louis, Yaccov asked a lawyer to draft a “travel agreement” requiring Ocean and O.N.C. to return to Israel if Yaccov remained unable to join them in St. Louis within six months. Ocean signed the agreement after adding a clause requiring Yaccov to “stay away from crime and not get into trouble.” If he breached this condition, Ocean and O.N.C. would not be obligated to return to Israel at the end of the six-month period. In August 2014, Yaccov was arrested for driving without a valid license. In July 2014, Ocean filed for divorce in St. Louis County. The St. Louis County Circuit Court entered a default judgment granting the divorce in March 2015, giving Ocean sole custody of O.N.C. and Yaccov supervised visitation. In September 2015, Yaccov filed a complaint requesting O.N.C.’s return under the Convention.

          The 8th Circuit observed that habitual residence is determined as of the time “immediately before the removal or retention” and depends on “past experience, not future intentions.” Silverman v. Silverman, 338 F.3d 886, 897-98 (8th Cir. 2003) Habitual residence encompasses some form of settled purpose but only requires that the familyhave a sufficient degree of continuity to be properly described as settled. However, this settled purpose need not be to stay in a new location forever. The Eighth Circuit determines settled purpose from the child’s perspective, although parental intent is also taken into account. That said, parental intent need not be completely clear, and one spouse harboring reluctance during a move does not eliminate the settled purpose from the child’s perspective. In addition to settled purpose and parental intent, relevant factors include the change in geography, the passage of time, and the acclimatization of the child to the new country.Stern v. Stern, 639 F.3d 449, 451 (8th Cir. 2011). It held that the district court did not err in finding that O.N.C.’s habitual residence was the United States. From O.N.C.’s perspective, his move to the United States resulted in a sufficient degree of continuity to be properly described as settled. The record supports that the alleged wrongful retention occurred either in July 2014, when Ocean filed for divorce, or in October 2014, when the six-month period under the travel agreement expired. At either of these junctures, O.N.C. had been living in the United States for almost two years—a significant portion of his young life. From his perspective, his family had moved to the United States indefinitely and established a home there, and he maintained considerable connections to his environment. O.N.C.’s mother obtained employment, purchased a vehicle, and rented an apartment for the family. O.N.C. attended school and speech-therapy classes, had a pediatrician, socialized with friends, and had extended family in the area. During the relevant time period, he primarily spoke English and participated in activities at his local Jewish Community Center. At the same time, little evidence established O.N.C.’s connection to Israel. In sum, O.N.C. experienced “a clear change in geography” and had acclimated to life in the United States. Moreover, the parents’ intent supported this conclusion. Both Yaccov and Ocean intended to move O.N.C. to the United States for at least three to five years, if not indefinitely. They applied together for O.N.C.’s U.S. citizenship and planned for Ocean and O.N.C. to settle in St. Louis and establish a home there until Yaccov could join them. In furtherance of this plan, Ocean established a life in St. Louis—all the while sending money to Yaccov in an effort to enable him to join his family. Both parties understood that O.N.C. would be without Yaccov for a significant period of time and that Ocean would establish a home in his absence.

         The parties disputed the circumstances under which Ocean signed the travel agreement, but Yaccov did not seek to enforce the agreement. Rather, he offered it only for the purpose of demonstrating parental intent. The 8th Circuit noted that even if Yaccov had sought to enforce the agreement, parents cannot establish the child’s habitual residence by contract. Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir. 2010). The 8th Circuit agreed with the district court that Yaccov had not demonstrated by a preponderance of the evidence that O.N.C.’s habitual residence was Israel.

Alvarez v Alvarez, 2017 WL 2335600 (D. Md., 2017) [Mexico] [Federal & State Judicial Remedies] [Comity]

In Alvarez v Alvarez, 2017 WL 2335600 (D. Md., 2017) Petitioner, Enedina Alvarez filed her Verified Petition for Return of the Children to Mexico on April 12, 2017. With her Petition for Return, the Mother included a copy of a Custody Agreement dated January 6, 2016 and a copy of the Mexico Appellate Court Decision  issued September 7, 2016.5 The Father filed his Answer on May 10, 2017, denying that the Mother had legal custody over the children and denying that the children had been wrongfully removed from Mexico. By the current Motion in Limine, the Mother requests this Court to accord comity to the Mexico Hague Convention Proceedings.

The district court observed that the Fourth Circuit has noted that “though foreign judgments are not entitled to full faith and credit, comity is at the heart of the Hague Convention.” Smedley, 772 F.3d at 189 (quoting Miller, 240 F.3d at 400). The United States Supreme Court provided a description of comity with some guiding principles in Hilton v. Guyot, 159 U.S. 113, 163-64, 202-03 (1895). Where comity is at issue, a court begins its analysis “with an inclination to accord deference to” a foreign court’s decision of a related Hague petition. Diorinou v. Mezitis, 237 F.3d 133, 145 (2d Cir. 2001). However, a court may decline to extend comity if the foreign court “clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Smedley, 772 F.3d at 189 (quoting Asvesta, 580 F.3d at 1014). In Smedley, the Fourth Circuit found that the district court had properly found the foreign court’s decision was “at least minimally reasonable,” which was sufficient to accord comity. Id. at 191.

  The Court had access only to the Mexico Appellate Court Decision  which was attached to the Petition for Return. The decision which affirmed the lower court finding, details the facts considered and the law applied. There is nothing in the decision that would indicate that the court either misinterpreted the Hague Convention or was inconsistent with its fundamental premises and objectives. The Mexico courts found that the Father had consented to the children remaining in Mexico. Such a finding was supported by the evidence, such as the custody agreement. These decisions were issued in relation to the Father’s Hague Convention Petition for Return filed in Mexico against the Mother while the children were living with the Mother in Mexico. The appellate decision affirmed a lower Mexico court order finding that the Mother had not wrongfully retained the children in Mexico, and that the Father had consented for the children to live in Mexico with the Mother.

The Father noted that the custody agreement was intended to be temporary and did not entitle the Mother to keep the children in Mexico past the January 11, 2016 scheduled return to the United States. The Mexico court, however, considered this argument in its decision. The Mexico court determined that the vacation circumstances had radically changed due to an episode of violence between the Father and the Mother. The Mexico court further noted that since the Custody Agreement was signed on January 6, 2016, and the parties had full knowledge of the scheduled return date, if it was intended to end on that date, they had the opportunity to so specify but did not. Further, as noted by the Mother in her motion, the Mexico trial court appointed a guardian ad litem for the children, ordered psychological evaluations for the parties, and received extensive testimony and evidence, including documents and affidavits. After considering all of the evidence, the Mexico trial court found that the Mother did not wrongfully retain the children in Mexico, and this finding was upheld after further extensive analysis by the Mexico appellate court. The finding is certainly at least minimally reasonable. Accordingly, the Court directed that it would  accord comity to the Mexico Hague Convention Proceedings.

The Court’s held that its deference to the Mexico Hague rulings that the Mother did not wrongfully retain the children in Mexico did not end the Court’s consideration of whether the Father’s removal of the children from Mexico required an order for their return. Rather, the Court stated it would take into account the reasons for the Mexico courts’ decisions when deciding the instant Petition for Return. There remained other evidence to be considered, including the circumstances surrounding the Father’s removal of the children from Mexico, and the Convention’s defenses and exceptions. The Court held that it would consider all material evidence to be presented at a hearing prior to making an ultimate finding on the Petition for Return.

Tavarez v Jarett, --- F.Supp.3d ----, 2017 WL 2304029 (S.D. Texas, 2017)[Mexico] [Petition granted]

  In Tavarez v Jarett, --- F.Supp.3d ----, 2017 WL 2304029 (S.D. Texas, 2017)  Petitioner Yolanda Sanchez Tavarez (“Petitioner”) alleged Respondent Michael Jarrett (“Respondent”) wrongfully removed their six-year-old daughter, BLSJ, from Mexico to the United States on January 24, 2016.  Petitioner was a Mexican national and Respondent was an American national. The parties lived in the same residence in Lagos de Moreno, Jalisco, Mexico from 2009 until their separation in 2014 and were the parents of one six-year-old child, BLSJ who was born in Lagos de Moreno, Jalisco, Mexico on June 13, 2010. BLSJ resided in Mexico until she was removed to the United States on January 24, 2016.  Respondent conceded that Mexico was the country of BLSJ’s habitual residence.

            On May 10, 2012, BLSJ was hospitalized in Mexico after suffering seizures and fainting. BLSJ was subsequently diagnosed with anti-NMDA encephalitis (“Anti-NMDA”), an autoimmune disease. BLSJ was released from the Guadalajara Hospital in November 2013 and thereafter received continuing medical treatments, physical therapy, and speech therapy. The childs doctor did not  have any concerns about BLSJ’s ability to receive the appropriate medical treatment in Mexico. At the time of BLSJ’s last appointment in Mexico, on November 20, 2015, BLSJ’s disorder was stable and controlled, and Dr. Cruz believed BLSJ would likely go into remission. On January 24, 2016, Respondent removed BLSJ from Mexico and brought her to the United States.  Respondent testified that he and Petitioner agreed BLSJ should move to the United States to seek medical treatment for BLSJ’s Anti-NMDA. The district court rejected this testimony and found that Respondent wrongfully removed BLSJ from Mexico.

  The Court found Respondent failed to establish by a preponderance of the evidence that Petitioner consented or acquiesced to BLSJ’s removal. It also rejected Respondent arguments that returning BLSJ to Mexico posed a grave risk to BLSJ because (1) the healthcare available to BLSJ in Mexico is inadequate; (2) there is an increased risk of disease in the area of Mexico to which Petitioner seeks BLSJ’s return; (3) there is a high crime rate in the area of Mexico to which Petitioner seeks BLSJ’s return; and (4) BLSJ was abused by Petitioner or Petitioner’s family.

Cunningham v Cunningham, 2017 WL 662020 (M.D. FL, 2017)[Japan][ Habitual residence ] [Petition granted]

In Cunningham v Cunningham, 2017 WL 662020 (M.D. FL, 2017),  Ryoko Cunningham (Mother), a citizen and resident of Japan, requested the return of her child, Y.L.C. from the United States to Japan. Respondents were Terrence Cunningham (Father) and Glenda Cunningham (Grandmother), the father and paternal grandmother of the Child. The Child lived with the Grandmother in Yulee, Florida. The Father was serving in the United States Army and stationed in Maryland, but his home of record was also Yulee, Florida. The district court granted the petition.

The Mother was born in Japan and lived her entire life in Japan aside from a three week period when she attempted to live in the United States. Prior to the Child’s birth, the Mother was living in Okinawa with her daughter and son. The Father, an American citizen, was stationed with the Army in Okinawa. In May 2014, the couple got married in Japan. The Father’s assignment in Japan was scheduled to end. Although their relationship was turbulent and troubled, the Parents made plans to move to Maryland together, with the Mother’s teenage son, and live there as a family on a permanent basis. They couple moved to the United States in April 2015 . However, after an argument, the Mother returned to Japan where the child was born.  She subsequently returned to the United States for a short time but sought to return to Japan after more arguments. Upon hearing the Mother’s demand to return to Japan and obtain a divorce, and hearing her threat to never let him see the Child, the fathers response was to ask the Army for assistance in returning the Mother to Japan

The district court observed that the difficulty with applying the usual” habitual residence” analysis in this case was  that the caselaw focused on situations in which a child’s habitual residence has changed, as opposed to the question of when or how an infant’s initial habitual residence is first established. Significantly, “courts have consistently held that a newborn’s place of birth does not automatically bestow upon that child a habitual residence.” Moreover, an infant child’s habitual residence is not automatically that of her mother. The Father contended that the Child’s habitual residence is the United States because when the couple moved to the United States in April 2015, they shared a mutual intent to remain permanently in the United States. According to the Father, even after the Mother returned to Japan, they quickly reconciled and prior to the Child’s birth agreed that as soon as the Mother and Child were able to travel, they would come to the United States to live here permanently. The Mother disputed this, saying that she wanted a divorce from the Father and only came to the United States to allow him to meet the Child.  The Court concluded that the preponderance of the evidence established that Japan is the Child’s habitual residence.

The Court dispensed with acclimatization as a useful factor. In cases involving very young children, “ ‘[a]cclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.’ ” See Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013). Like acclimatization, under the circumstances of this case, a focus on parental intent was also problematic. Here, the Parents, although still married, had separated and were living in different countries at the time of the Child’s birth.  The Parents both planned to live together as a family in the United States when they moved here in March 2015. After no more than three weeks in the United States, in a whirlwind of tempers and abuse allegations, the Mother and her teenage son returned to Japan with the Army’s assistance. The Father acknowledged that he consented to the Mother’s return to Japan. Thus, whatever his hopes had been for their future in Maryland, at that point, the Father acquiesced in the Mother’s decision to leave him and return to Japan while pregnant with the Child. Although the Father testified that he still intended for the Child to be born and raised in the United States, the Court rejected this testimony because, under the circumstances, the Father could have had no reasonable expectation that the Mother and Child would be returning to the United States. While one or both Parents may have had mixed feelings about the Mother’s departure, they both shared a settled mutual intent that she would return to Japan, pregnant with the unborn Child, indefinitely. See Ruiz, 392 F.3d at 1253. The Court found by a preponderance of the evidence that at most the Mother traveled to the United States in October 2015 in an attempt to reconcile with the Father. Both Parents understood that absent reconciliation, the Mother and Child would return to Japan. The Court found that the events of October 10, 2015, showed that the Father’s decision to keep the Child in the United States was a sudden departure from the Parents’ prior understanding. After agreeing that it was her choice whether to return to Japan, the Father changed position and tells the Mother, at his last possible opportunity, that she cannot take the Child. Based on the foregoing, the Court rejected the Father’s contention that the United States was the Child’s country of habitual residence, and found that the Mother has established by a preponderance of the evidence that the Child was habitually resident in Japan prior to the retention. 

The Court adetermined that with regard to rights of custody a showing of illegality or unlawfulness is not what the Hague Convention requires. See Ozaltin v. Ozaltin, 708 F.3d 355, 368–70 (2d Cir. 2013) (“[A] removal under the Hague Convention can still be ‘wrongful’ even if it is lawful.”) The Father presented no legal authority for the proposition that to have “breached” the Mother’s rights of custody within the meaning of the Hague Convention he must have committed acts which were “illegal” or “unlawful” under Japanese law. Significantly, the Hague Convention explicitly includes joint custody rights within its purview. See Hague Convention, art. 3(a). Thus, even if the Father’s actions were not considered “unlawful” under Japanese law, by disregarding the Mother’s jointly held rights and interfering with their normal exercise, the Father effectuated a “wrongful retention” within the meaning of the Hague Convention.  

Moreover, the Father’s reliance on the state court orders to establish that his retention was not wrongful was unavailing. Article 17 provides that “[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” As such, under the circumstances of this case, the existence of the state court orders had no impact on the “wrongful retention” analysis. 

Alanis v. Reyes, 2017 WL 1498252( N.D. Miss, 2017)[Mexico][Attorneys Fees]

In Alanis v. Reyes, 2017 WL 1498252( N.D. Miss, 2017) the Court granted the petition and ordered that DFB be returned to Petitioner Lourdes Guadalupe Loredo Alanis in Mexico. On February 17, 2017, Petitioner filed a bill of costs with supporting documentation. On March 7, 2017, the Clerk of Court taxed Petitioner’s bill of costs against Respondent in the amount of $2,429, for the following: fees of the Clerk, $400; fees for service of summons and subpoena, $35; fees for witnesses, $635.80; compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828, $300; and mileage incurred by Petitioner and Anel Valdivia to return DFB to Mexico, pursuant to the Court’s Order, $1,058.20. Petitioner filed a motion for costs, expenses, and attorney’s fees.  Respondent Jose Carmen Badillo Reyes did not file a response,

The district court held that fact that Petitioner’s legal representation was pro bono did not render the award of fees and costs improper. See Salazar, 750 F.3d at 518 (citing Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) Because Respondent did not file a response, he could not establish that an order awarding costs, expenses, and attorney’s fees would be “clearly inappropriate.” See Ostos v. Vega, 2016 WL 1170830, at *1 (N.D. Tex. Mar. 25, 2016).

The district court analyzed  awards of attorney’s fees under ICARA where the Court must (1) calculate reasonable attorney’s fees and (2) review the fees in light of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Fifth Circuit has approved a two-step process that uses the “lodestar” method to calculate reasonable attorney’s fees, multiplying the number of hours spent on the matter by a reasonable hourly rate for such work in the community. Reasonable hourly rates are typically calculated through affidavits by attorneys practicing in the community in which the district court is located.“In calculating the lodestar, ‘[t]he court should exclude all time that is excessive, duplicative, or inadequately documented.’ ” However, “there is a ‘strong presumption’ that the lodestar figure is reasonable.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554, 130 S. Ct. 1662, 1673, 176 L.Ed. 2d 494 (2010).

Petitioner’s counsel provided documentation supporting that he expended 56.25 hours on the case, and at his 2016 billing rate of $210 and 2017 rate of $220, the lodestar calculation was $12,210. Petitioner’s counsel attached his own detailed billing records documenting the hours he worked and each service performed, as well as the affidavit of LaToya C. Merritt, a Mississippi attorney, supporting the reasonableness of Petitioner’s counsel’s fee and hourly billing rate for the legal representation and supporting the Johnson factors. Petitioner’s counsel’s billing records indicated that the time spent on the case was reasonable. In carefully examining these line items in light of the Johnson factors, the Court found that the time spent on these tasks, which were necessary to the proceedings, was reasonable.

The Court found that the time claimed for the travel time and hearing attendance was reasonable. The line items for communication concerning the return of DFB to Mexico was reimbursable as reasonable and a necessary expense under the ICARA; preparation of the motion for fees and costs and preparation of the bill of costs and supporting exhibits/documentation were proper and recoverable, as “[i]t is settled that a prevailing plaintiff is entitled to attorney’s fees for the effort entailed in litigating a fee claim and securing compensation.” See Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985).Petitioner was entitled to attorney’s fees in the amount of $12,210.

The Court held that the following costs enumerated in the bill of costs were recoverable under Section 1920: fees of the Clerk, $400; fees for service of summons and subpoena, $35; fees for witnesses, $635.80; and compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828, $300. Petitioner’s requested reimbursement of $205.30 for copying was a recoverable cost under Section 1920, because Petitioner had verified through supporting documentation that the particular copies were “necessarily obtained for use in the case.” See Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010). Petitioner’s counsel demonstrated the necessity of the long distance telephone calls, having included line items indicating the necessity of calling the United States State Department, an attorney in Mexico, the Mexican consulate, and Petitioner concerning the return of DFB to Mexico. Petitioner also requested reimbursement of $170.50 in mileage incurred by Petitioner’s counsel for travel to the hearing. “Reasonable transportation and lodging costs incurred by an out-of-town attorney are awardable under § 11607(b)(3).” Saldivar v. Rodela, 894 F. Supp. 2d 916, 944 (W.D. Tex. 2012). The Court found that Petitioner demonstrated the necessity of this expense in the bill of costs, Petitioner requested $1,058.20 for mileage incurred by Petitioner and Anel Valdivia to return DFB to Mexico. The Court found that this travel cost was proper under the ICARA, as it was a “necessary expense[ ] incurred by or on behalf of the petitioner ... related to the return of the child.” See 22 U.S.C. § 9007(b)(3).


 Petitioner was awarded $12,210 in reasonable attorney’s fees and $2,821.59 in ancillary costs and expenses. The total amount of costs, expenses, and attorney’s fees was $15,031.59. Interest was to accrue on the amount awarded Petitioner Lourdes Guadalupe Loredo Alanis at the rate of 1.02 % from the date of the order until it is paid in full.

Matute-Castro, v. Jimenez-Ortiz, 2016 WL 8711076 (E.D. N.Y., 2016) [Ecuador][Now settled][Petition denied]

In Matute-Castro, v. Jimenez-Ortiz, 2016 WL 8711076 (E.D. N.Y., 2016) Santos Hernan Matute-Castro (“Petitioner”), petitioned for an order directing Josselinne Pamela Jimenez-Ortiz (“Respondent”) to return their minor son, M.M.J. to Ecuador.Petitioner alleged that Respondent wrongfully retained their child in New York at the end of a family vacation on August 19, 2013. Respondents motion for summary judgment dismissing the petition was granted.

 The parties agreed that the child was wrongfully retained in New York at the end of the family vacation on August 19, 2013.The district court found that since arriving in New York in 2013, Respondent and the child  resided with Respondent’s mother, father, younger sister A.J., and a great-uncle named Sergio in a house in Queens, New York. Respondents’ parents owned the house since at least 2013. Respondent’s parents were employed full time and supported Respondent and the child. Respondent’s mother  indicated that she and Respondent’s father were willing to support Respondent and the child for as long as necessary.  Respondent’s mother stated that Respondent and the child were welcome to live with the family for as long as they would like. The child was covered by health insurance. Both parties agreed that Respondent was a good mother. The child’s regular interactions with about thirty (30) extended family members in New York City and the surrounding region included playing with and being around other children in the family. Aside from spending time with family, the child interacted  with other children from the neighborhood. The children attend each other’s birthday parties and some of the children participated in a Tae Kwon Do after school program with the child. The child and Respondent also attend church services. During the 2013-2014 school year, Petitioner enrolled the child in a nursery school program at the YMCA two days per week. Recently, the child completed kindergarten at Achievement First Apollo Elementary School. The child’s primary language was now English. The child received special education services because he was diagnosed with a learning disability and speech and language impairment by healthcare professionals associated with the school’s Committee on Preschool Special Education. In a report of a psychiatric evaluation of the child, dated February 15, 2016, Dr. Stephanie Brandt concluded that, “It is entirely obvious that this rather fragile little boy is in fact happy and thriving in every way.” (Dr. Brandt also noted that, the child “is in fact quite disabled” and further concluded that, “it is my unequivocal professional opinion that the Child is a ‘settled’ child in his current New York home environment.”  Since the child arrived to New York, Respondent had not concealed the child’s whereabouts from Petitioner. Respondent facilitated telephone and “Face time” calls between Petitioner and the child and sent Petitioner photos of the child. Respondent believed the child should have a relationship with his father and has made efforts to maintain contact between the child and Petitioner. Respondent and his parents had the resources and ability to visit the child in New York.

The district court stated that to establish the now settled defense, the respondent must demonstrate, “(1) that the return proceeding was commenced more than one year after the wrongful removal or retention, and (2) that the child ‘is now settled in its new environment. See Lozano v. Alvarez, 697 F.3d 41, 51 (2d Cir. 2012) The parties agreed that the wrongful retention of the child occurred on August 19, 2013, and that the petition was filed in this district, where the child was found, on August 5, 2015, almost two years later. Accordingly, the petition was untimely. Thus, the issue remaining before the court was whether the child was “now settled in its new environment.”
The Second Circuit has held that the word “settled,”  “should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.” Lozano, 697 F.3d at 56. When determining if a child is “now settled,” the court may consider “any factor relevant to a child’s connection to his living arrangement.”. Among the factors the court should consider are: (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. A court should examine the child’s present circumstances and assess whether a child is “now settled” as of the date of either an evidentiary hearing or when a motion for summary judgment is filed. See Gwiazdowski v. Gwiazdowska, 2015 WL 1514436, at *4 (E.D.N.Y. Apr. 3, 2015) (evaluating factors at time of evidentiary hearing); In re D.T.J., 956 F. Supp. 2d 523, 534 (S.D.N.Y. 2013). Balancing the forgoing factors, the Court concluded that the child was now settled in New York for purposes of Article 12.

Padilla v. Troxell, 2017 WL 922061 (4th Cir.,2017) [Mexico][Consent][Petition denied]

In Padilla v. Troxell, 2017 WL 922061 (4th Cir.,2017) Petitioner-Appellant Xochitl Jazmin Velasco Padilla (“Petitioner”) appealed the district court’s denial of her petition for the return of her now five-year-old child J.V. (“Child”), after Respondent Joe Richard Troxell (“Respondent”) took Child to the United States. The district court denied the petition, finding that Petitioner had consented to Child’s removal from Mexico. The Fourth Circuit affirmed.

The petitioner gave birth to Child on May 27, 2011 in the state of Oaxaca, Mexico. Respondent--a U.S. citizen residing in Mexico at the time--offered to provide support for Child. In January 2012, when Child was about eight months old, Petitioner and Respondent agreed that Respondent would serve as Child’s legal father. Respondent registered himself as Child’s father, and his name appeared on the birth certificate. As stipulated by the parties, Respondent was the legal father and had parental rights under Mexican law. For the first two years of Child’s life, although Respondent had little to no physical contact with Child, he did provide financial support. On December 17, 2014, Petitioner and Respondent traveled to Oaxaca to obtain a Mexican passport for Child. After they obtained Child’s passport together, Respondent took Child to his home in Acapulco until Child entered the United States.


During the trial, several inconsistencies in Petitioner’s version of events became apparent. As for the alleged abduction, Petitioner testified that Respondent took Child while she was going to the bathroom, which conflicted with her prior account that Respondent disappeared with Child while she was buying ice cream. Although Petitioner’s sister, Maria Candelaria Velasco Padilla, testified that Petitioner “was always with her baby” before the birth of her third child in 2013, she said nothing to support Petitioner’s narrative of the day of the alleged abduction in December 2014.
Respondent testified as to his version of events, and Ms. Leyva confirmed his account. Respondent also introduced a sworn affidavit from Ms. Banos, Petitioner’s half-sister who was present during the visit to the passport office. In the affidavit, Ms. Banos stated that Respondent had not abducted Child. Respondent argued that the district court should admit the document as self-authenticating Petitioner argued that the document was not self-authenticating as required under Federal Rule of Evidence 902(3). Petitioner stated that the “basis” for the objection was Federal Rule of Evidence 902(3)- but did not argue hearsay.

In its opinion, the district court found Petitioner had established, that [Child] was wrongfully removed.” Nevertheless, the district court found that Respondent had “adequately shown” that Petitioner consented to Child’s removal from Mexico, a defense under the Hague Convention. In reaching these conclusions, the district court made an express credibility determination. The court stated that “Petitioner’s testimony raised serious doubts about her credibility,” and that the “ease with which she misl[e]d the court” on at least one issue--the number and birth order of her children-- “calls into question all of her factual testimony.”. Accordingly, the district court found that there was “only one credible version of events: Respondent’s.” As for the sworn statement of Ms. Banos, the district court admitted the affidavit into evidence as “self-authenticating under Federal Rule of Evidence 902(8).”

The Fourth Circuit observed that consent and acquiescence are two separate and “analytically distinct” affirmative defenses. Whereas the consent defense concerns the petitioner’s conduct before the contested removal or retention, the acquiescence defense concerns whether the petitioner subsequently agreed to or accepted the removal or retention. A petitioner’s statements or conduct-formal or informal--can manifest consent. For both the consent and acquiescence defenses, the inquiry turns on the petitioner’s subjective intent. “To establish consent, we focus on the parties’ conduct prior to the removal or retention. However, a petitioner’s conduct after removal can further inform whether she consented at the time of removal.” Determining whether the preponderance of the evidence supports a petitioner’s subjective intent to consent to removal is naturally “fact-intensive.” Accordingly, this inquiry depends to a considerable extent on the district court’s factual and credibility determinations.


The Fourth Circuit found that  Petitioner’s conflicting testimony about basic personal information led the district court to question “all of her factual testimony.”The district court ultimately concluded Respondent’s version of events was the only credible one. It owed this express credibility determination substantial deference. Bolstered by the credibility determination, it agreed with the district court’s legal conclusion that a preponderance of the evidence demonstrates Petitioner consented to Child’s removal to the United States. The district court found that Petitioner willingly accompanied Respondent to obtain Child’s passport and agreed to surrender custody to Respondent so that Child could have a better life. Ms. Leyva’s testimony and the sworn affidavit of Petitioner’s half-sister, Ms. Banos, corroborated Respondent’s story. The text messages-- exchanged between September 2015 (a little more than six months after Child’s removal) and January 2016--reinforced the conclusion that Petitioner consented to removal of Child to the United States. Respondent acknowledged that Petitioner never told him she wanted him to bring Child into the United States illegally, and how a Child is removed is one factor to consider in assessing the scope of consent. Still, Petitioner repeatedly said that Child was better off with Respondent in the United States, thus suggesting that she did not view Respondent as an abductor. In the context of Respondent’s impending move to the United States, the combination of Petitioner’s conduct in signing for Child’s passport and her statements during the passport visit to Respondent that Child would be better off with him--as well as her subsequent text messages expressing same--all supported the conclusion that she consented to Child’s relocation.

Neumann v. Neumann, 2017 WL 1162926 (6th Cir., 2017)[Mexico][Change of Circumstances]

In Neumann v. Neumann, 2017 WL 1162926 (6th Cir., 2017) the district court ordered two children to be returned to Mexico after analyzing whether, under the terms of the Convention, returning them posed “a grave risk” of “expos[ing] [them] to physical or psychological harm or otherwise plac[ing] [them] in an intolerable situation.” The district court concluded that the return posed no such grave risk.  Because JMN turned sixteen years old while this action was pending, the district court ordered Ms. Neumann to return only JSN and MKN to Mexico. The district court declined to order JSN and MKN into Mr. Neumann’s custody—just back to Mexico. The Sixth Circuit vacated the district court’s return order, and remanded for further proceedings consistent with the opinion.

On December 1, 2016, after oral arguments. Mr. Neumann’s counsel represented to the court that in November 2016—six months after the district court’s return order—Mr. Neumann returned indefinitely to Michigan after a job reassignment. Counsel also represented to the court that while Mr. Neumann’s stay in Michigan was indefinite, Mr. Neumann may be assigned to a job in India, too. Counsel further represented that if the court were to affirm the district court’s return order, Mr. Neumann would return to Mexico to receive the children. The children, Mr. Neumann, and Ms. Neumann were all in Michigan. Ms. Neumann and the children had been there for more than two years—since December 2014. Mr. Neumann had been there for about five months—since November 2016. When the district court ordered Ms. Neumann to return the children to Mexico, Mr. Neumann was residing and working in Mexico, potentially giving the Mexican court the jurisdiction over the custody dispute. Under those circumstances, the district court concluded that returning the children would not expose them to a grave risk of harm or of an intolerable situation. The Sixth Circuit observed that those circumstances changed substantially. Because of a stay pending appeal the return had not been carried out, and circumstances had changed materially. Neither parent  resided in Mexico, and if the children were returned there, the Mexican court may no longer be able, practically or legally, to resolve the custody dispute between two American parents over their American children. 


The Sixth Circuit held that district court did not clearly err when it found Mexico to be the country of habitual residence of JSN and MKN. When Ms. Neumann took them to the United States, JSN and MKN had been living in Mexico for nearly four years—from February 2011 to December 28, 2014. They were there because the husbands employer had transferred him to Mexico. That was  long enough for JSN and MKN to acclimate to their new life. JSN and MKN attended the same school in Mexico for nearly four years. At the school, they made new friends and engaged in extracurricular activities like school plays and concerts. The Neumanns also planned to continue to live in Mexico until 2017—maybe longer. Given those settled ties to Mexico, the district court did not clearly err in concluding that Mexico was the children’s country of habitual residence. The district court therefore was bound to order Ms. Neumann to return the children back to Mexico, unless Ms. Neumann proved that, by clear and convincing evidence, returning the children to Mexico would expose the children to a grave risk of physical or psychological harm or an otherwise intolerable situation The district court rejected that argument and ordered JSN and MKN back to Mexico.

 In light of new developments, the Sixth Circuit dd not decide whether the district court correctly decided, based on then-current circumstances, the close issue of whether returning the children to Mexico presented a grave risk of physical or psychological harm. The closeness of the issue made a remand more advisable. The district court’s harm analysis depended on the circumstances in which the children would have lived when they returned to Mexico. However, while the district court ordered the children to Mexico generally, the court did not order how the children would be returned, where they would temporarily live, and who would temporarily take care of them, pending the Mexican court’s custody determination. It was therefore uncertain what compliance with the district court’s order would have looked like. It was a close issue whether, in light of Simcox,511 F.3d at 604, the district court correctly found that Ms. Neumann had failed to prove a grave risk of harm by clear and convincing evidence. 

The Sixth Circuit held that it could not successfully be argued that the exception for grave risk is necessarily determined at the time of the return order rather than at the time of the actual return, when there is appreciable distance between the two. Because the circumstances of the return will no longer be as they were contemplated when the district judge ruled, and because a remand was required in any event the Court did not resolve whether the district court properly found no clear and convincing evidence of physical or psychological harm at the time the court ordered the children’s return to Mexico.  It directed that on n remand, the district court may in its discretion take further evidence as to, for instance, whom the children will be staying with in Mexico during custody proceedings, and how Mr. Neumann had dealt with his alcoholism.


Because neither parent currently resides in Mexico, the Court faced the independent question of whether there was a grave risk of an intolerable situation upon return to Mexico, arising from possible impediments to the ability of Mexican courts to adjudicate custody. In Pliego v. Hayes, 843 F.3d 226, 228–29 (6th Cir. 2016), it  held that “where custody cannot be practically or legally adjudicated in the state of habitual residence,” there may be “ ‘grave risk’ that the child’s return would ‘place the child in an intolerable situation.’ ” Here, if Ms. Neumann followed the district court’s order to return the children to Mexico without any specified logistical agreements, it may not be possible for custody to be practically or legally adjudicated in Mexico. The record did not show whether a Mexican court may exercise jurisdiction to resolve a custody dispute between two American parents over two of their three American children, all of whom are American citizens, none of whom were Mexican citizens, and none of whom resided in Mexico. In Pliego, it recognized that if diplomatic immunity prevented the state of habitual residence from adjudicating custody, that could be an intolerable situation under the Convention, in light of the underlying purpose of the Convention to have the state of habitual residence adjudicate custody. See Pliego, 843 F.3d at 233. In doing so, it  also relied on foreign cases that reasoned that there was a grave risk of an intolerable situation where, for instance, a parent could not legally travel to the country that would have determined custody, or the parent could not legally represent his or her interest and the child’s interest in the subsequent litigation. Similarly, if Mexico as a practical or legal matter could not or would not adjudicate custody, the intolerable situation exception to the obligation to return may apply. The issue was presented by the intervening change of facts, and should be addressed by the district court in the first instance. Under its  precedent, that potential inability of the foreign court to resolve the custody dispute may pose “a grave risk” of “an intolerable situation” to the children. A return order is premised on the risks at the time of the actual return, and the district court had not had a meaningful chance to evaluate, in light of the material change in circumstances, whether there is a “grave risk” under the Convention when the children would now be returned. In this unusual circumstance, a remand was warranted so that the district court may consider in the first instance whether returning the children to Mexico would now expose them to “a grave risk” of harm or of an intolerable situation.

The Court upheld the district court’s holdings that Mexico was the country of habitual residence of JSN and MKN, and that Ms. Neumann violated Mr. Neumann’s custodial rights under Mexican law when she took her children to the United States on December 28, 2014. The remand was otherwise general. It directed the district court to  determine whether or not clear and convincing evidence shows that returning the children now presents a “grave risk” of “physical or psychological harm” or “an intolerable situation.” If so, then the district court has discretion to deny return, or to grant return subject to undertakings that would substantially lessen the risk. See Simcox v. Simcox, 511 F.3d 594, 604–11 (6th Cir. 2007). If the court determines that there is not a sufficient showing of a grave risk, the court should order return. Should the district court decide that a return order is indeed required, such a return order should provide sufficient practical detail so that return can be accomplished promptly without further appreciable litigation delay. The court may still deal with ordinary logistical considerations that frequently accompany the return of any child.