Kim v Ferdinand, 2018 WL 721455 (E.D. Louisiana, 2018)[Thailand] [Habitual Residence] [Petition granted]

In Kim v Ferdinand, 2018 WL 721455 (E.D. Louisiana, 2018) the Court granted the mothers petition for the return of her children to Thailand.

 Soonhee Kim was the mother of L.J.F. (born in 2007) and A.J.F. (born in 2009) She alleged that on or before August 13, 2017, Kamau Bakari Ferdinand the children’s father, wrongfully retained them in Louisiana where they now remained.  The Mother and Father first met in Japan in 2002. In 2006, the parties married in Kawasaki, Japan.  The Mother was a citizen of the Republic of Korea, but was born in and lived most of her life in Japan. The Mother held special permanent resident status in Japan. The Mother had no immigration status in the United States. The Mother was permitted to enter the United States as a short-term visitor under the visa waiver program. The Father was a citizen of the United States. Prior to 2017, he lived in Asia for almost eighteen years. The Mother and Father both continued to work in Japan after their children’s births in 2007 and 2009. The Mother was a director and partner at a venture capital firm, and the Father was an English teacher. In December 2011, the parties jointly decided to move the family to Thailand, and resided together in Bangkok.  After the family arrived in Thailand, the Father enrolled in an educational program at a local university. The Father completed the curriculum in 2016. The Father did not work while he was attending school. He then started working as a part-time English teacher in 2016.  While in Thailand, the Mother, Father and children all held Thai visas.  From 2011 until mid-2017, their lives, as well as their children’s, centered in Bangkok, Thailand. The family leased and lived in a luxury condominium in Bangkok.

In 2016, after the family lived in Thailand for nearly five years, the parents began to experience marital discord. Eventually, the Father moved out, and rented another apartment in Bangkok. When the parents parted, they agreed on a schedule for the children to spend approximately equal time with both parents.  In 2017, the Father told the Mother he was thinking about finding a job in the United States and would be interviewing with a potential employer during a trip with the children to see their extended family in New Orleans. When the Father was planning this trip to the United States, the Mother had advised the Father that she would not agree for the children to travel to the United States unless the Father provided proof that he had purchased return plane tickets for the children to return to Thailand at the end of the vacation.  On May 5, 2017, the Father forwarded the Mother an e-mail confirmation of the children’s roundtrip ticket from Bangkok, Thailand to New Orleans, Louisiana.  The e-mail confirmation provided a departure date of June 29, 2017 from Bangkok and a return date of August 13, 2017. The children’s paternal grandfather purchased the tickets. On June 29, 2017, the children departed Thailand with the Father’s sister and arrived in New Orleans, Louisiana.  On August 13, 2017, the Father did not return the children to Thailand, and indicated to the Mother in an e-mail that he believes it was a good idea for them to stay. The Father said the children have outgrown the life Bangkok has to offer.

The district court observed that in determining the habitual residence of the children the threshold test is whether both parents intended for the child to ‘abandon the [habitual residence] left behind.’” (quoting Mozes, 239 F.3d at 1075). “Absent shared intent, ‘prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally to this conclusion.’. When ‘the child’s initial move from an established habitual residence was clearly intended for a specific, limited duration [,]...most courts will find no change in habitual residence.’ ” Larbie, 690 F.3d at 311. Here, the Mother repeatedly asserted that she expected the children to return to Thailand after their summer visit to their grandparents’ home in New Orleans. Very telling was the fact the Father, through the grandfather, purchased round-trip tickets from New Orleans to Bangkok for the children. At trial, the Father confirmed this round-trip plan for the children:

The Court found that the shared intent of both parents was not to relocate the children from Bangkok, Thailand to New Orleans, Louisiana.  The Father contended that Thailand was never intended to be a permanent residence.  The Court found that the children’s home was built in Thailand, where the parents leased a condo, secured jobs, enrolled the children in school and extracurricular activities, and where the paternal grandparents visited them, inter alia.

Respondent further argued that the children were well adjusted in New Orleans. Perhaps this was true. But even though the children had seemingly accustomed themselves to New Orleans, with great support from their grandparents who are both accomplished medical professionals, the Fifth Circuit has cautioned courts not to equate this to establishment of habitual residence. Despite the superficial appeal of focusing primarily on the child’s contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned. Mozes, 239 F.3d at 1078–79. The children’s support network in New Orleans was unrelated to the issue of determining habitual residence. 

From the facts presented at trial, the Court concluded that the Mother has established that, before the removal of the children to New Orleans, the parties had a shared and settled intent to live with the children in Thailand. The Court found the Mother had custody rights under Thai law at the time of the retention. The Mother and Father jointly had “parental power” over the children under Thai law by operation of law because they wee the natural parents of the children. Section 1567 of the Civil and Commercial Code of Thailand provides that parental power includes: (A) the right to determine the child’s place of residence; (B) the right to punish the child in a reasonable manner for disciplinary purposes; (C) the right to require the child to do such work as may be reasonable to his ability and condition in life; and (D) the right to demand the return of the child from any person who unlawfully detains the child.  Parental power under Thai law is considered a right of custody in accordance with Article 5(a) of the Hague Convention because it includes rights relating to the person of the child and to determine the child’s place of residence.  Accordingly, the Mother demonstrated by a preponderance of the evidence that she had rights of custody in Thailand under Article 5(a) of the Convention. See Bader v. Kramer, 445 F.3d 346 (4th Cir. 2006) (holding joint rights of custody are considered “rights of custody” under Article 5(a) of the Hague Convention).

           The Court also found that the Mother was exercising rights of custody in Thailand.

The Court concluded that the Mother met her burden in establishing her prima facie case for the Court to order the return of L.J.F. and A.J.F. to Thailand. It also concluded that none of the discretionary exceptions applied to the children’s return and ordered the return of L.J.F. and A.J.F. to Thailand.

Hernandez v Montes, 2018 WL 405977 (E.D. North Carolina, 2018)[Mexico] [Temporary Restraining order]

In Hernandez v Montes, 2018 WL 405977 (E.D. North Carolina, 2018) the district court granted the Father’s motion for a preliminary restraining order prohibiting the removal of the Child, N.R.A., from the Eastern District of North Carolina pending the preliminary injunction hearing;” and directing the relinquishment of the Child’s travel documents, including his Mexican and American passports, to the United States Marshal.

The court observed that “A plaintiff seeking preliminary injunctive relief must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tip in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council. Inc., 555 U.S. 7, 20 (2008); see The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reissued in relevant part, 607 F.3d 355, 356 (4th Cir. 2010) (per curiam). After examining these factors, the court found that the requested TRO was authorized and necessary in this case.

First, the court found that allowing the Mother to flee with the Child would result in irreparable harm. See Alcala, 2014 WL 5506739. at *6. Second, the court found that any threatened harm to Mother and Barrios was minimal as compared to the probability of irreparable harm to Father and the Child…Third, the court found that Father had demonstrated that he is likely to succeed on the merits. Father’s evidence showed that (1) the Child’s habitual residence was Mexico immediately before the wrongful retention; (2) Father had “rights of custody” under Mexican law; and (3) Father was exercising his rights of custody and would have continued doing so but for Mother’s wrongful retention of the Child in the United States. Fourth, the public interest supported issuing the TRO. See Salguero v. Argueta, No. 5:17-CV-125-FL, 2017 WL 1067758, at *2 (E.D.N.C. Mar. 21, 2017) (unpublished) ( “Finally, a TRO serves the public interest. Since international abduction [and] wrongful retention of [a] child[ ] is harmful to [his or her] well-being,’ a TRO in this case will serve the public interest by protecting the child’s well-being.”; Alcala v. Hernandez, No. 4:14-CV-4176-RBH, 2014 WL 5506739, at *7 (D.S.C. Oct. 30, 2014) (unpublished). The court declined to require bond. A bond is not mandatory and can be waived. See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 n.3 (4th Cir. 1999)

Flores v Elias-Arata, 2018 WL 889023 (M.D. Florida, 2018)[Peru] [Federal & State Judicial Remedies] [Motion to dismiss denied]

In Flores v Elias-Arata, 2018 WL 889023 (M.D. Florida, 2018) Petitioner Miguel Benito Campomanes Flores (Father) initiated this action on January 25, 2018. The  Respondent Maria Fernanda Orbegoso Elias-Arata (Mother) moved to dismiss the Verified Petition for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Upon review, the Court found  that the Verified Petition states a claim for wrongful retention under the Hague Convention, and as such, the Motion is due to be denied.³

In the Verified Petition, Father alleged that he and Mother have had an “intermittent relationship” for several years, during which time the Minor Child, J.C.O., was born. Father attaches to the Verified Petition the Minor Child’s birth certificate which reflects that the Minor Child was born in Peru, in January of 2013. The birth certificate names Petitioner as the father and Respondent as the mother.  Father alleges that he shared responsibility for the care of the Minor Child, spent time with him, and provided for his care and well-being. According to Father, in the spring of 2017, Mother asked Father to allow her to bring the Minor Child to the United States to visit Mother’s parents. Father asserts that, at Mother’s request, he signed a Temporary Consent agreement documenting his consent to this temporary travel. According to Father, the temporary travel plans provided that Mother would return to Peru with the Minor Child on August 25, 2017.  Father alleges that Mother did not return to Peru as agreed upon and has informed Father that she has no intention of returning to Peru with their son.  Indeed, Father maintains that Mother “lied about her travel plans to the United States promising to return to Peru with the [M]inor [C]hild while having no intention of doing so.”  As such, Father asserts that Mother’s removal of the Minor Child from Peru was done in a “deceptive manner” and “without [his] consent.”  Father contends that prior to the events giving rise to this case, the Minor Child had resided in Peru since birth, enjoyed “substantial timesharing” with Father, and “was completely settled and integrated in Peru’s life and culture.”

The district court found that the father had set forth sufficient factual allegations to support a plausible claim for wrongful removal or wrongful retention under the Hague Convention. The Mother argues that Father’s allegations are insufficient because he fails to allege facts supporting a wrongful removal and fails to allege that he has rights of custody under Peruvian law. The Court disagreed. It was not entirely clear whether Father sought to pursue a claim of wrongful removal or one of wrongful retention., Even if Father mistakenly characterized his claim as a “wrongful removal,” it was apparent from the facts alleged that Father has stated a claim for “wrongful retention” under The Hague Convention. Mother also contended that Father failed to adequately plead that he has rights of custody under Peruvian law. This argument was plainly without merit. Father alleged the following facts in support of his custody rights: (1) he is the Minor Child’s father, as listed on the birth certificate, (2) the parties “shared responsibilities for the care of their son”, (3) Father spent time with his son almost every day and provided for his care and well-being, (4) Mother asked Father for permission to take the Minor Child to the United States and requested that he sign a Temporary Consent agreement documenting his consent to this plan, , and (5) prior to the wrongful retention, the Minor Child lived with Mother while enjoying “substantial timesharing” with Father. “The Convention broadly defines ‘rights of custody’ as ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ ” See Hanley v. Roy, 485 F.3d 641, 645 (11th Cir. 2007) (quoting Convention, art. 5). At this stage of the proceedings, the foregoing factual allegations, and in particular, the allegation that Mother asked Father to sign a form consenting to her travel with the Minor Child, were sufficient to give rise to the inference that Father had rights of custody pertaining to the Minor Child within the meaning of the Hague Convention and was exercising those rights.

Dona v Castilblanco, 2018 WL 928976 (N.D. Texas, 2018) [Costa Rica] [Rights of Custody] [Motion for TRO denied]

In Dona v Castilblanco, 2018 WL 928976 (N.D. Texas, 2018) Petitioner brought the action on September 14, 2017, requesting that the court order the return of his three-year old biological son J.S.M.P. to his alleged “habitual residence” of San Antonio de Coronado, Costa Rica. In addition, Petitioner requested: (1) “for the well-being of the child, that he be given immediate access to his child, pending further hearing in this Court”; (2) that the court issue an order immediately prohibiting the removal of J.S.M.P. from the jurisdiction and requiring the turnover of the child’s travel documents; and (3) that the court set the matter for an expedited hearing.  the district court denied Petitioner’s motion for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing.


In support of his Petition for Return of the Child to Petitioner), Petitioner submitted a copy of the Convention; a portion of the Spanish version of Costa Rica’s Family Code or Código de Familia; an unsworn affidavit by Petitioner, which constitutes no evidence; correspondence dated January 6, 2017 from the Patronato Nacional De La Infancia; and a “Formulario de denuncia” or “denunciation form” dated September 6, 2016, that Petitioner filed with the Patronato Nacional De La Infancia in Costa Rica. 

Petitioner alleged that Respondent, the biological mother of J.S.M.P, removed the child to the United States without Petitioner’s consent. It was apparent from the documents relied on by him they are not married. The parties’ pleadings and the documentation submitted by Petitioner also show that Petitioner, Respondent, and J.S.M.P. were all born in Honduras; that Petitioner, Respondent, and J.S.M.P. were residing in Costa Rica immediately before J.S.M.P.’s removal; that Petitioner’s country of habitual residence was Costa Rica; and Respondent’s country of habitual residence was the United States. Petitioner alleged that Respondent wrongfully removed the child without his consent from Costa Rica to the United States on February 27, 2016. Petitioner alleges that Respondent has continued to wrongfully retain the child in the United States, and he believes the child is presently living with his mother in Dallas, Texas, at his maternal grandmother’s residence. Petitioner contended that he had rights of custody under Costa Rican law (Articles 141, 151, and 157 of Costa Rica’s Código de Familia or Family Code); that he was exercising those custody rights before the child was wrongfully removed; and that return of the child to Costa Rica is required under Articles Three and Five of the Convention. On January 2, 2018, Respondent filed her pro se Answer to the Petition, denying Petitioner’s allegations and contending that this action is baseless and frivolous:

On February 13, 2018, Petitioner moved for a temporary restraining order (“TRO”). In his motion for a TRO, Petitioner requests that the court prohibit Respondent, and others acting on her behalf, from removing J.S.M.P. from the court’s jurisdiction until after a determination has been made regarding the merits of his Petition.  The district court observed that a court may grant such relief only when the movant establishes that: (1) there is a substantial likelihood that the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury [to the movant] outweighs the threatened harm to the defendant; and (4) the granting of the preliminary injunction will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993.. Because a TRO is considered an “extraordinary and drastic remedy,” it is not granted routinely, “but only when the movant, by a clear showing, carries the burden of persuasion.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).

  The court determined that Petitioner had not established that all requirements for a TRO had been met.


Regarding the first requirement, whether there is a substantial likelihood that the movant will prevail on the merits, the court determined that there was no evidence to support Petitioner’s conclusory allegations that: (1) J.S.M.P.’s habitual residence before removal to the United States was Costa Rica; (2) Petitioner has custody rights under Costa Rican law; and (3) Petitioner was exercising those rights before J.S.M.P.’s removal to the United States. The conclusory statement in the Petition and Petitioner’s affidavit that J.S.M.P. has lived with Petitioner in Costa Rica since his birth until his removal were insufficient to establish that Petitioner and Respondent had a shared intent or settled purpose to make Costa Rica J.S.M.P.’s habitual residence. Larbie, 690 F.3d at 310. First, this statement conflicted with another statement in Petitioner’s affidavit that J.S.M.P. was born in Honduras. If the child was born in Honduras, he could have lived his entire life in Costa Rica, and Petitioner does not specify how long J.S.M.P. has resided in Costa Rica. Thus, at most, this statement by Petitioner indicatesdonly that, for some unspecified period of time, J.S.M.P. lived with Petitioner in Costa Rica, before the child was removed by his mother to the United States. Moreover, that J.S.M.P. may have lived for a length of time in Costa Rica with Petitioner must be viewed in light of other facts. Specifically, as noted, the parties’ allegations and the documentation submitted by Petitioner indicate that Petitioner, Respondent, and J.S.M.P. were all born in Honduras and lived in Honduras for a time before they moved to Costa Rica; Respondent has immediate family in Dallas, Texas; and Petitioner acknowledges that Respondent’s country of habitual residence is the United States. Taken together, these facts did not support a finding that J.S.M.P.’s habitual residence was Costa Rica at the time of his removal to the United States.

Further, Petitioner did not establish that J.S.M.P.’s removal or retention breached Petitioner’s custody rights under Costa Rican law. Petitioner alleged in his Petition and affidavit that Articles 141, 151, and 157 of Costa Rica’s Código de Familia provided him with rights of custody and offers the following English translation of Convention Articles 141, 151, and 157: Article 141: The rights and obligations inherent to parental authority cannot be renounced. Neither can they be modified by agreement of the parties as they relate to the custody, upbringing, and education of the children, except for the provisions for separation and divorce by mutual consent. Article 151: The father and mother exercise parental authority over the children with equal rights and duties in the marriage relationship. In the event of a disagreement, at the request of either parent, the Court shall make the decision, even without the formalities of process and without the need for the parties’ hiring lawyers. The Court must decide based on the child’s interest.... Article 157: The provisions of Article 151 shall apply when the mother of a child born out of marriage exercised parental authority together with the father. 

Petitioner offered no explanation as to why he believed Articles 141, 151, and 157 of Costa Rica’s Código de Familia provided him with rights of custody under Costa Rican law. Article 141 appears in Chapter I of the Costa Rican Family Code includes general rules of disposition applicable to the rights and obligations conferred by parenthood. Código de Familia [CDF], art. 141 (Costa Rica). Article 151 appears in Chapter II of the Costa Rican Family Code and applies specifically to the rights of parents when a child is born in wedlock.   The court interpreted these provisions as setting forth the general rule in Costa Rican law that provides a joint or equal right of custody to both parents when a child is born in wedlock. See Fernandez v. Somaru, No. 2:12-CV-262-FtM-29DNF, 2012 WL 3553779, at *7 n.5 (M.D. Fl. Aug. 17, 2012). Article 157, which appears in Chapter III of the Family Code, applies to children like J.S.M.P, who were born outside of marriage, and only provides for joint or equal rights of custody to both parents if the mother exercised parental authority together with the father. According to Article 155,5 which also appears in Chapter III of the Costa Rican Family Code, when a child is born outside of marriage, the mother, even if she is a minor, has the right to exercise parental authority over a child born outside of marriage and has full legal status for these purposes.. The father, on the other hand, only has the right to exercise parental authority together with the mother in special cases, if such authority is conferred by a tribunal or court upon request of a party or the Patronato Nacional de la Infancia and done solely in consideration of the child’s interests.  In Fernandez v. Somaru, an ICARA case, the court reached the same conclusion based on expert testimony and an official translation of Costa Rican law regarding parental custody: Costa Rican law provides, [in the event a child is born out of wedlock], that, [t]he mother, even when she is under age, shall have custody of the children born out of wedlock and shall have legal rights for that purpose. The Tribunal could, in special cases, confer custody to the father and natural mother jointly, according to its judgement, or upon request from Patronato Nacional de la Infancia and concerning solely the minors’ interests.

The court concluded that Petitioner did not share rights of custody under Costa Rican law with Respondent with respect to J.S.M.P. because he did not allege and had not established that: (1) the parties had a legally binding agreement to share custody of J.S.M.P; or (2) the Patronato Nacional de la Infancia had conferred him with rights of joint custody as to J.S.M.P. As a result, Petitioner could not have been exercising his alleged rights of custody together with J.S.M.P.’s mother when the child was removed from Costa Rica by his mother, and the removal was not wrongful. Thus, even assuming that the Petition for J.S.M.P.’s return was not subject to a well-settled defense by Respondent as a result of Petitioner’s allegations regarding the reasons for his delay in filing his Petition more than one year after J.S.M.P.’s removal, Petitioner had not shown a substantial likelihood that he will be able to succeed on the merits of his Petition under the Convention, ICARA, and applicable law, which require a showing that J.S.M.P.’s removal from Costa Rica was wrongful. 

Davies v Davies, 2017 WL 6616691 {2d Cir., 2017)[French St. Martin] [Grave Risk of Harm] [Petition denied]

          In Davies v Davies, 2017 WL 6616691 {2d Cir., 2017) the Second Circuit affirmed a judgement which denied the fathers petition for repatriation of his five-year-old son K.D. to French St. Martin. 

          In July 2016, K.D.’s mother, Respondent-Appellee Sally K. Davies, removed K.D. from French St. Martin to New York after suffering years of psychological abuse and increasingly violent behavior from Mr. Davies, much of which occurred in the presence of K.D. Mr. Davies’s uncontrollable anger and abusive behavior was often directed at K.D. Based on documentary evidence and testimony from Ms. Davies, Mr. Davies, nine other fact witnesses, and five expert witnesses the District Court denied Mr. Davies’s petition for repatriation of K.D. See Davies v. Davies, No. 16-cv-6542, 2017 WL 361556, at *1–17 (S.D.N.Y. Jan. 25, 2017). There was no dispute that Mr. Davies set forth a prima facie case. The principal issue on appeal was whether Ms. Davies satisfied her burden of proving, by clear and convincing evidence, that one of the four narrow exceptions to the Convention’s repatriation provision applied: that the return of K.D. to French St. Martin would expose him to a “grave risk” of “physical or psychological harm or otherwise place [him] in an intolerable situation” under Article 13(b) of the Convention. 

  The Second Circuit pointed out that on appeal, Mr. Davies challenged several of the district court’s factual findings, which “[w]e must accept ... unless we have a definite and firm conviction that a mistake has been committed.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) It  owes” particularly strong deference where the district court premises its findings on credibility determinations.” Mathie v. Fries, 121 F.3d 808, 812 (2d Cir. 1997). Therefore, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Having carefully examined the record, it concluded that the district court’s factual findings challenged by Mr. Davies are not erroneous, much less clearly erroneous.

  It concluded that the district court’s findings of fact were not clearly erroneous, including its findings (i) that K.D. was subjected to severe and persistent psychological abuse by Mr. Davies, and (ii) that this abuse would continue if K.D. returned to French St. Martin.

        The Court explained that under Article 13(b)’s grave-risk-of-harm exception to repatriation, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Souratgar, 720 F.3d at 103 “This grave risk exception is to be interpreted narrowly,” a rule that the district court was “acutely aware of.”  It has held that Article 13(b) relief could be granted if repatriation posed a grave risk of causing unavoidable psychological harm to the child,” and “[e]vidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.” Souratgar, 720 F.3d at 104. But spousal abuse is relevant under Article 13(b) only if it “seriously endangers the child,” and the “inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. ”The grave risk inquiry “involves not only the magnitude of the potential harm but also the probability that the harm will materialize.”  These [are] fact-intensive cases,” and “at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship ... [and] at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” Blondin, 238 F.3d at 162. It concluded that this appeal presented circumstances that fell at the latter end of the spectrum. 

           Reviewing de novo the district court’s application of Article 13(b) to its well-supported factual determinations, it affirmed its decision to deny the petition for repatriation because returning K.D. to French St. Martin would, by clear and convincing evidence, expose him to a grave risk of psychological harm. Based on Mr. Davies’s psychological abuse of not only K.D., but also of Ms. Davies in K.D.’s presence, it found no error in the district court’s conclusions as to the magnitude of the potential psychological harm to K.D.––“severe”––and the probability of that harm materializing if he returned to French St. Martin––“a near certainty.” This conclusion was not based on “[s]poradic or isolated incidents,” or “conjecture and speculation” of abuse, rather, as the district court explained, it was premised on “overwhelming evidence of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by K.D., and the fact that Mr. Davies frequently screamed and yelled at K.D. for no legitimate reason.” Like the district court, it found alarming Mr. Davies’s escalation of violence immediately prior to the departure of K.D. and his increasingly hostile threats since then. If K.D. returned and Mr. Davies were to follow through on his threat “that there was no amount of money that he would take to exact his revenge on [Ms. Davies],”–and there was clear and convincing evidence that he would––there is no doubt K.D. would suffer grave psychological harm.
  It found no error in the district court’s conclusion that there were no ameliorative measures that would protect K.D. from harm if he returned to French St. Martin. See Blondin, 238 F.3d at 163 n.11 (“[B]efore a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”). The district court heard testimony from four expert witnesses concerning the protections afforded to victims of domestic violence (children and spouses) under French St. Martin’s legal system. Moreover, the district court was in the best position to evaluate Mr. Davies’s credibility about abiding by certain ameliorative measures (such as a stay-away order), which was marred by (i) his deceit and manipulation of the legal system in French St. Martin, (ii) his untruthfulness and unwillingness to accept responsibility for his actions while testifying, and (iii) his escalating threats toward Ms. Davies even after their separation. The day before Ms. Davies and K.D. left French St. Martin, Mr. Davies told her that he would rather take all their money, burn it, and kill himself than resolve their dispute “through the courts.” It declined to disturb the district court’s careful and thorough evaluation of the ameliorative measures.

Duran-Peralta v Luna, 2017 WL 6596632(S.D. N.Y., 2017)[Dominican Republic] [Habitual Residence][Consent]

In Duran-Peralta v Luna, 2017 WL 6596632(S.D. N.Y., 2017) the district court granted the Petition of Juana Livia Duran-Peralta, a resident and citizen of the Dominican Republic, seeking the return of the parties’ minor child (“IM”) to the Dominican Republic.

IM was born in the Dominican Republic on August 5, 2015. On October 12, 2015, respondent took IM to the United States. Respondent has kept IM in the United States since then despite petitioner’s appeals that respondent return IM to the Dominican Republic, which culminated in this lawsuit. According to petitioner, she and respondent were romantically involved for several years, during which time she became pregnant with IM. Respondent claimed that petitioner served as a surrogate for him and his wife and that he and petitioner were never romantically involved. The Court found the testimony of petitioner considerably more credible than that of respondent and those who testified on his behalf.

          The Court found the petitioner mother of IM, lived with her eldest daughter in Santo Domingo in the Dominican Republic, where she lived her entire life. Respondent was also born in Santo Domingo. He lived in the United States with his wife, to whom he had been married for about ten years. Respondent had five children in addition to IM. Petitioner and respondent met in 2012, when he would stop by the “exchange house” next to where she worked, and shortly thereafter began a romantic and sexual relationship. When she became pregnant, petitioner quit her job and respondent financially supported her. In June 2015, respondent rented a house for petitioner in anticipation of IM’s birth. IM was born in the Dominican Republic on August 5, 2015.

IM had medical problems after her birth, including neurological complications from a knotted umbilical cord and a skin condition called scabiasis. Respondent told petitioner that he did not want IM to go to doctors in Santo Domingo, and the parties discussed the possibility of seeking medical treatment for IM in the United States. Respondent told petitioner that his sister, who is a doctor, would see IM in New York. Accordingly, in September, petitioner signed what she understood to be an authorization permitting respondent to bring IM to the United States. This “authorization” most likely was an application for an American passport, which petitioner and respondent filled out at the law office of Justina Echavarria. In October 2015, respondent visited the Dominican Republic again. When he returned to the United States, on October 12, 2015, he brought IM with him. Petitioner believed that respondent was taking IM to the United States for just two months for the sole purpose of receiving medical treatment and that he would return her to the Dominican Republic in December. In November 2015, respondent returned to the Dominican Republic (without IM) and told petitioner that he needed a new authorization to take IM to doctors in the United States. Petitioner and respondent made another visit to Justina Echavarria’s law office on November 5, 2015 and signed a document that petitioner believed authorized respondent to seek medical treatment for IM in the United States but in fact provided that petitioner waived her maternal rights over IM (the “Release”). While IM was in the United States, petitioner “was communicating constantly with” respondent. She inquired about the status of the doctors’ visits and asked respondent to send pictures and videos of IM, which he did. She also “constantly” sent “him messages asking him why [he] didn’t bring the girl back.” Respondent provided various reasons for why he could not bring IM back, such as that “he didn’t have any money to travel back to Santo Domingo, [or] that he had too much work.” Respondent has never returned to the Dominican Republic with IM. Petitioner filed the instant action on October 11, 2016.

          The district court noted that Courts in the Second Circuit use the following approach in determining a child’s state of habitual residence: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire 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.

In determining IM’s habitual residence, the preliminary question the Court had to resolve was whether petitioner’s signing the Release demonstrated that she intended IM to remain in the United States permanently. The Court had little doubt that petitioner did not, in signing the Release, anticipate, let alone intend, that respondent would retain IM in the United States permanently. The two-page, as-signed Release provided that, “I [petitioner] want to declare further that I waive all of my rights over the girl; and declare, that this is in the best interest of the girl.” The Release further provided that petitioner “designate[s] [respondent] Johnny Antonio Luna as a qualified and adequate adult competent to perform any proceedings to retain the girl if [her] rights as mother are terminated.” The Release also identified Luna’s address in New York State.

          The court concluded that although respondent credibly testified that she did not read the Release, there was evidence that she might have understood its import. Before petitioner signed the Release, someone from the Echavarrias’ law firm asked Ramon Antonio Gilminjete, an attorney and notary, to notarize the document. Gilminjete, who was perhaps the only one of respondent’s witness whom the Court found half-way credible, testified that he has known petitioner since she was born. When Gilminjete arrived at the office, he read the document immediately and asked petitioner “if she knew what she was signing, what she was about to sign, because she hadn’t signed it yet,” and she responded that she knew what she was signing, Gilminjete told her “it says that she is giving away the custody of the child to the father,” and that it was “too strong.”. Respondent again told him that “she knew what she was doing.” Nonetheless, Gilminjete took the document with him to his office “to maybe give her the opportunity to think it through.”. Petitioner called him “the next day or two days later” to tell him that he could give the document to respondent. Gilminjete then returned the Release to the Echavarrias’ office, which sent the document to get an apostille from the ministry in the Dominican Republic (which is akin to a verification).However, even assuming arguendo that, contrary to her testimony at trial, petitioner was aware that the Release waived her maternal rights - either because she read the document or because Gilminjete informed her of the document’s terms - the evidence still did not support a finding that petitioner ever intended IM to live in the United States. Rather, petitioner was told, and believed, that she was signing the Release so that IM could be seen by doctors in the United States. There was no evidence that petitioner actually “understood” her execution of the Release as consent to IM’s living with respondent in the United States. The Release did not explicitly provide that IM would live in New York. It was silent on IM’s future residence. The Release could be read as implying that IM will live in the United States, but there was no evidence that petitioner drew this inference. Petitioner was not represented by counsel when she signed the Release, Gimlinjete may have explained to petitioner that by signing the Release, she gave custody to respondent, but he apparently did not actually explain to her that the practical effect of her waiving custody would be that respondent would take IM to the United States. There was abundant evidence, on the other hand, that petitioner signed the Release so that respondent could take IM to doctors in the United States and that respondent represented to her that he would bring IM back to the Dominican Republic in December. In addition to petitioner’s testimony, the parties’ text message communications while IM was in the United States confirm that petitioner believed that respondent had taken IM to the United States temporarily to visit doctors.

          The Court next found that the Dominican Republic was IM’s habitual residence at the time of her removal. The parties shared an initial intent that IM reside in the Dominican Republic. In the years preceding IM’s birth, the Dominican Republic was the site of the parties’ relationship. There was no evidence that petitioner even once visited respondent in the United States. When petitioner became pregnant, respondent financially supported her in the Dominican Republic, including by paying the rent on her house in Santo Domingo. Therefore, there was sufficient evidence to conclude that the parties shared an intent that the Dominican Republic be IM’s habitual residence.

          The shared intent of the parents is not dispositive of a child’s habitual residence,” and “[a] court must additionally examine the evidence to determine if it unequivocally points to the child having acclimatized.” Gitter, 396 F.3d at 135. But the Court finds that IM was “acclimatized” to the Dominican Republic at the time of her removal See Ovalle v. Perez, 681 F. App’x 777, 784 (11th Cir. 2017). Here, prior to IM’s entry into the United States, she had never lived anywhere other than the Dominican Republic. The Court found that petitioner has established her claim under the Hague Convention and that there were no defenses. 

Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017)[Czech Republic] [Habitual Residence] [Petition granted]

          In Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017) Veronika Marcoski, L.N.R.’s mother, appealed the district court’s judgment ordering that L.N.R. be returned to the Czech Republic, where he was born. The district court adopted the report and recommendation issued by the magistrate judge. It found that Mr. Rath and Ms. Marcoski were “in a committed relationship with a shared intent for the foreseeable future to live with L.N.R. in the Czech Republic.”  

         The Eleventh Circuit affirmed. It noted that Ms. Marcoski challenged some of the district court’s underlying factual findings and contended that certain evidence established that L.N.R.’s “habitual residence” was not in the Czech Republic. The district court found that Mr. Rath was “credible and [Ms. Marcoski was] not credible,” and provided detailed reasons for its view of the evidence on important disputed issues, including whether they were living together. While Ms. Marcoski was correct that the district court clearly erred in two of its factual findings, those errors related to subsidiary historical facts and did not change the fact that substantial evidence supported the district court’s ultimate finding regarding shared intent. That is, any error made by the district court “was harmless because there was plenty of other evidence proving the same [ultimate] fact.” Bobo v. Tenn. Valley Auth., 855 F.3d 1294, 1300 (11th Cir. 2017). In sum, the Eleventh Circuit saw no basis for setting aside the district court’s credibility assessments and factual findings. Ms. Marcoski presented an interpretation of the evidence that could have allowed the district court to find in her favor, but “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.

Pena v Serrano, 2017 WL 6542758 (W.D. Texas, 2017)[Mexico] [Habitual Residence] [Patria Potestad] [Petition granted]

In Pena v Serrano, 2017 WL 6542758 (W.D. Texas, 2017) the district court granted Edgar Andres Soto Pena’s petition for the return of his children to Mexico. Petitioner and Respondent were Mexican nationals who married in 2005 in Mexico and were the parents of A.S.E., D.S.E., and S.S.E. The family resided in Mexico until August 2009, when they moved to Austin, Texas, while Petitioner completed a one-year Master of Business Administration program. From May 2010 until October 2012, the family resided in Texas while Petitioner worked in Texas. In October 2012, the family moved to Monterrey, Mexico. A few years later in August 2014, the family returned to Texas. Petitioner returned to Mexico in March 2015.  Respondent and the children remained in Texas until July 2015.  Upon their return to Mexico, Respondent initiated divorce proceedings. Petitioner and Respondent obtained a divorce in December 2015. The divorce was a voluntary divorce, and the parties agreed to its terms.  Per the divorce decree, Petitioner and Respondent agreed that “the care and custody of the under-age children was to be executed by [Respondent], and the legal custody by both parents, during this proceeding and once the sentence has been executed.”  They further agreed that their children “shall be under the custody of the female spouse,” and that Petitioner would have coexistence rights, including the ability to visit with his children on Wednesdays after school and every other weekend. The decree also addressed changes in residence. Petitioner and Respondent agreed to notify each other and the court of any change in domicile. They agreed that “[i]n the event [Respondent] changes her domicile to a city other than Monterrey, Nuevo Leon, [Respondent] shall still hold custody of her under-age children, and [Petitioner] shall continue to be entitled to the coexistence rights with his under-age children under the same provisions hereof.” On March 14, 2017, Petitioner and Respondent modified the divorce decree by agreement.  That modification addressed Petitioner’s right of access on Wednesdays after school and every other weekend, changing the terms and conditions of those visits. The modification expressly stated that the December 2015 decree, with the exception of the modifications regarding Petitioner’s visitation, otherwise remained unaltered.

          In June 2017, Respondent advised Petitioner that she and the children had moved to the Austin, Texas metro. The Mexican court that handled Petitioner and Respondent’s divorce and subsequent modification addressed Respondent’s move to Austin with the children in a document dated October 24, 2017. The Mexican court stated: [N]o change in residence could be carried out unilaterally by the person holding care and custody of the minors, because the ownership of said right does not grant an all-encompassing and exclusive power to determine the place the minors should reside in, this derives from the fact such an important decision should consider the other parent as well, because having full exercise of parental rights, grants the other parent the right to coexist with his children, and even to secure their physical, spiritual and moral upbringing, as well as to prepare them for having a profession or specific activity that may be useful for them, and which may not be accomplished if the minors are moved to a distant place without his consent, therefore it is undeniable both parents must agree to this change by mutual consent. On October 27, 2017, the Secretary of Foreign Relations for the Mexican Central Authority certified that the children’s “removal from their habitual residence in Mexico was wrongful given the fact that there is a valid access rights agreement signed by the parents on December 16th, 2015, before the Fifth Family Court of the First District in Monterrey, Nuevo Leon.”  The Secretary also stated that Petitioner and Respondent hold patria potestad rights over the children and that, because they “share parental rights over the children, and those rights include making a decision about the children’s place of residence .... Thus, any unilateral decision made by the mother in contravention thereof is a breach of the rights attributed to the other parent and falls within the definition of illicit retention contained in Article 3 of the Convention.”

          The district court concluded that the children’s habitual residence on the date of removal was Mexico based on the fact that this issue was not disputed. Because the Court has found that the children were habitually residing in Monterrey, Nuevo Leon, Mexico immediately before their removal, the rights of custody were determined by the application of the laws of the Republic of Mexico. See Bernal v. Gonzalez, 923 F. Supp. 2d 907, 918 (W.D. Tex. 2012) (Counts, Mag.). It observed that the State of Nuevo Leon, Mexico, in accordance with the Civil Code, adheres to the legal doctrine of patria potestad (meaning “parental rights”), under which “both parents have joint custody rights.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 623–24 (W.D. Tex. 2012). The parties agreed that the Civil Code expressly adopts the doctrine of patria potestad, and the parties do not contest that the divorce decree recognizes and incorporates the doctrine. As to each parent individually, the decree establishes other, different rights and responsibilities. Petitioner is granted “coexistence rights,” which are similar to visitation rights in the United States, Divorce Decree, and provides that Respondent possesses “the care and custody of the under-age children,”. While both Petitioner and Respondent must notify the court and each other of any change in domicile, the parties agreed to the following: “In the event [Respondent] changed her domicile to a city other than Monterrey, Nuevo Leon, the mother shall still hold custody of her under-age children, and the father shall continue to be entitled to the coexistence rights with his under-age children.”

          The principal issue presented by the parties was whether this specific language of the decree trumped the doctrine of patria potestad and allowed Respondent to move the children to Austin without violating the Convention. A handful of courts have grappled with the question of whether the language of a divorce decree can supersede the Nuevo Leon Civil Code—and its incorporation of patria potestad—to abolish one parent’s patria potestad rights. After surveying the decisions, this Court declined to conclude that Petitioner’s patria potestad rights—which were expressly bestowed in the divorce decree and given by statutory law— were also simultaneously relinquished by other provisions of the decree. As the Seventh Circuit explained, “[p]atria potestas is central to Mexican family law,” Garcia, 808 F.3d at 1165, and the grant of those rights would not be easily revoked. Whether patria potestad may be extinguished by an agreement or court order may be up for debate, but, in this case, those parental rights were not expressly terminated or abandoned.

  

        The grounds for finding that Petitioner held rights of custody pursuant to patria potestad were even stronger in this case, where, in addition to the Civil Code’s general grant of patria potestad, the divorce decree also awarded the respondent physical custody of the children but provided both parents with patria potestad rights. Patria potestad rights, “specifically incorporated into a custody agreement, amount to ‘rights of custody’ under the Convention.” Gatica, 2010 WL 6744790, at *6 (R. & R.). The divorce decree at issue here confirmed the rights of both Petitioner and Respondent under the doctrine of patria potestad, and those rights amounted to right of custody under the Convention. Petitioner’s patria potestad rights were sufficient to prove a prima facie case of wrongful removal under the Convention. See Saldivar, 879 F. Supp. 2d at 624–25 (“Chihuahua’s institution of patria potestad gives [petitioner] both the right relating to the care of the person of the child and the right to determine the child’s place of residence as contemplated under ... the Convention.”).

Morgan v Morgan, 2017 WL 4512487 (N.D. Texas, 2017) [Australia][Habitual residence][Petition denied]

In Morgan v Morgan, 2017 WL 4512487 (N.D. Texas, 2017) the petition seeking the return of the minor child T.P.M. to Australia was denied. Petitioner, Edward Tyler Morgan (Tyler), and Respondent, Lesli Kay Morgan (Lesli), were both citizens of the United States. The district court found that Lesli and Tyler were married in Texas, in 2012 and resided their entire lives in the United States prior to 2013. In 2013 Lesli and Tyler, along with A.K.S., Lesli’s minor daughter from a previous relationship, moved from the United States to Australia after Tyler received a job offer in that country. Tyler signed an employment contract with Stryker Australia for a 3-year commitment, and Australia issued a 4-year visa to Tyler, Lesli, and A.K.S.  Lesli and Tyler informed their family and friends that they were temporarily moving to Australia for a 3-year period due to Tyler’s employment opportunity. While living in Australia, Lesli and Tyler voted in at least one United States election and certified to the government of the United States that they were residents of this country. .P.M. was born in July of 2015 in Hobart, Tasmania, Australia. T.P.M. was not an Australian citizen. T.P.M. was a United States citizen. T.P.M. did not have his own visa. Lesli and Tyler never took any steps to apply for citizenship for T.P.M. or to otherwise make T.P.M. a lawful resident of Australia.  During the majority of their time in Australia Lesli was increasingly anxious to return to the United States as she and Tyler had agreed at the inception of their move. Lesli was scheduled to return to the United States with A.K.S. and T.P.M. for a wedding in March of 2017. Tyler purchased airline tickets for their travel. On or about February 26, 2017, Lesli and Tyler fought about Lesli’s intention to remain in the United States permanently following the wedding. On February 28, 2017, Lesli packed bags for herself and the children while Tyler was at work and drove to stay at a hotel. Lesli sent Tyler a video informing him that she and the children were safe but that she intended to return to the United States.  Lesli and the children went to the airport on March 1, 2017, and were temporarily detained by Australian immigration authorities while attempting to leave the country. Immigration authorities informed Lesli that T.P.M. did not have a valid visa and was in the country illegally. They informed Lesli that T.P.M. would not be allowed to return to Australia without a visa. Lesli, A.K.S., and T.P.M. returned to the United States at the beginning of March 2017.

The district court observed that the United States Court of Appeals for the Fifth Circuit has said that “[t]he 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.” Delgado, 837 F.3d at 578. The Fifth Circuit has adopted an approach to determine a child’s habitual residence “that begins with the parents’ shared intent or settled purpose regarding their child’s residence.” (quoting Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir. 2012)). The shared intentions of the parents are dispositive when the child is so young that he cannot decide the issue of residency for himself. In this case, T.P.M. was 23 months old and  incapable of deciding the issue of residency for himself. The intention of his parents regarding his habitual residence was therefore dispositive. Delgado, 837 F.3d at 578. The court found that Lesli and Tyler intended to move to Australia for a 3-year period and intended to return to the United States upon the expiration of Tyler’s employment contract. This was supported by (1) the testimony of people they told this to; the conduct of Lesli and Tyler in not obtaining lawful residency status for T.P.M. in Australia after his birth; Lesli’s and Tyler’s assertions to the United States government regarding their residency when voting in a United States election. Lesli and Tyler never reached a definitive agreement to extend their stay in Australia and had not demonstrated a fixed intention to remain there beyond the expiration of their current visa. Lesli and Tyler never reached any agreement to make Australia the habitual residence of T.P.M. and did not take any actions consistent with an intent to make Australia the habitual residence of T.P.M. T.P.M. was not legally residing in Australia prior to his removal to the United States and was not legal to return to Australia as of June 12, 2017. The Court held that Australia was not T.P.M.’s habitual residence and dismissed the petition.

Orellana v Cartagena, 2017 WL 5586374 (E.D. Tennessee, 2017) [Honduras][Grave risk of harm] [Fundamental Principals][Petition granted]

In Orellana v Cartagena, 2017 WL 5586374 (E.D. Tennessee, 2017) the district court granted the father’s petition for return of his child to Honduras.

  The Petitioner was the father of the Child, Respondent was the mother of the Child. The Child was born in Honduras on November 14, 2013, and that the Child resided solely in Honduras prior to her removal on or about September 11, 2015. The parties agreed that Respondent did not discuss the Child’s removal from Honduras with Petitioner before the Child was removed, nor did Respondent receive a custody order from any Honduras court granting Respondent full custody of the Child. Respondent alleged, however, that returning the Child to Honduras would pose a grave risk and that doing so would expose the Child to physical or psychological harm or otherwise place the Child in an intolerable situation. In addition, Respondent argues that returning the Child would not be permitted by the fundamental principles relating to the protection of human rights and fundamental freedom. 

Based upon the parties’ stipulations the evidence the Court found that petitioner established a prima facie case for return.

The district court noted that the grave risk defense provides that Respondent must demonstrate by clear and convincing evidence that returning the Child “would expose the child to physical or physiological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). The Sixth Circuit has elaborated as follows: First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. Friedrich, 78 F.3d at 1069.

  The Court found that Respondent had not shown by clear and convincing evidence that there was a grave risk of harm in returning the Child to Honduras. It observed that in cases of domestic assault, the Sixth Circuit has delineated three broad categories of abuse situations: “First, there are cases in which the abuse is relatively minor. In such cases, it is unlikely that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation’ under Article 13b.” Simcox, 511 F.3d at 608. The second type of cases are those at the other end of the spectrum, “in which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Id. at 607-08. The third type of cases “fall somewhere in the middle, where the abuse is substantially more than minor, but is less obviously intolerable.” Id. at 608. The Sixth Circuit continued, “Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.” In reviewing the evidence, the Court found that the alleged abuse in this case insufficient to establish that there was a grave risk that returning the Child would expose her to physical or psychological harm or otherwise place her in an intolerable situation. While the testimony differed regarding Petitioner’s abuse toward Respondent, what was consistent throughout the testimonies was that Petitioner did not physically abuse the Child.  Nor was there any evidence that Petitioner verbally abused the Child. While the parties’ arguments occurred in front of the Child, the Court found that Respondent failed to demonstrate by the clear and convincing standard that the Child would be subjected to a grave risk of physical or psychological harm if she returned to Honduras.

The court indicated that pursuant to Article 20 of the Hague Convention, the return of a child may be refused if it would not be permitted by fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Respondent stated that it would violate the Due Process of Equal Protection Clauses of the United States Constitution to require the return of the Child where the mother faces legally sanctioned discrimination upon return and that it would cause the Child to be placed in an intolerable situation since custody would be determined based on discrimination. In support of her argument, Respondent stated that Honduran law provides that children will generally be left in the custody of the father. The Court found that Petitioner has not shown by clear and convincing evidence that the return of the Child violates the fundamental principles of the United States. The Honduran law does not shock the conscience and that “merely offending principles espoused” in the United States is insufficient to invoke the Article 20 exception.” Habrzyk v. Habrzyk, 759 F. Supp. 2d 1014, 1027 (N.D. Ill. 2011) (stating that the “Convention requires that the fundamental principles of the State not permit the return of the child; merely offending principles espoused in Illinois laws is insufficient”); see also March v. Levine, 136 F. Supp. 2d 831, 855 (M.D. Tenn. 2000), aff’d, 249 F.3d 462 (6th Cir. 2001) (explaining that “it should be emphasized that this exception, like the others, was intended to be restrictively interpreted and applied, and is not to be used, for example, as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed”) (quoting 51 Fed. Reg. at 10510); Walker v. Kitt, 900 F. Supp. 2d 849, 864 (N.D. Ill. 2012) (“To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights would seriously cripple the purpose and effectivity of the Convention.”). Here, there was simply no evidence that the Child’s human rights and fundamental freedoms would be in jeopardy if returned to Honduras.

Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017)

In Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017), the district court granted the Petition of Leticia Isabel Velarde for the return of her son A.G. to Mexico. 

Petitioner Leticia Isabel Velarde was born in Laredo, Texas and was a United States citizen. Petitioner grew up in Mexico and was also a Mexican citizen. Her family resided in Nuevo Laredo, Mexico. Respondent Johnathan Asher Gurgan was a United States citizen. Petitioner came to the United States in 2002 for employment and stayed until 2013.  On November 8, 2012, A.G. was born in New Braunfels, Comal County, Texas. He was a United States citizen. Petitioner testified that she believed he was also a Mexican citizen by virtue of his birth to a Mexican mother. In August 2013, Respondent enrolled in University of Texas San Antonio (“UTSA”). The family lived together in an apartment in New Braunfels from the time of A.G.’s birth in November 2012 until October 2013, when they moved together to Mexico. During this time, they discussed moving to and living in Mexico. Due to financial issues, the cheaper cost of living in Mexico, the desire to be near Petitioner’s family in Mexico while being close to the university in Laredo, Texas, and possibly a desire to remove themselves from issues with Child Protective Services, Petitioner and Respondent jointly agreed to move the family to Mexico in October 2013. Although it was undisputed that the parents jointly agreed to move to Mexico, the duration of the planned move was disputed. Respondent testified that, at the time of the move, he did not have the intent to abandon the United States to take permanent residence in Mexico. Petitioner testified that they were “finally moving to Mexico” as they had talked about ever since they met, and her intention at the time of the move was not to return to the United States. She testified that they had visited often and always talked about living there, and when A.G. was born it seemed like the perfect opportunity for her to go back to her family and friends there with her son and husband. In mid-2016, Petitioner started discussing the possibility of divorce with Respondent. Respondent was upset and was opposed to getting a divorce. Petitioner testified that Respondent’s attitude about staying in Mexico changed sometime after June 2016. She testified that her intent to stay in Mexico had not changed. On November 25, 2016, Petitioner filed for divorce in Mexico (3rd Judicial District of Nuevo Laredo, Tamaulipas, Mexico). On November 30, 2016, Respondent said he was taking A.G. to the park but instead took the child to San Marcos, Hays County to the residence of his mother. A.G. was four years old and had been living in Mexico with his parents continuously since he was 11 months old. Before taking A.G. to San Marcos, Respondent researched the requirements of the Hague Convention, and he left some of his research and notes behind in Mexico. Next to the sentence “Therefore, failing to consider shared parental intent could potentially cause the court to overlook whether a parent is acting unilaterally to alter what had been previously agreed to by both parents,” which Respondent partially underlined, Respondent wrote, “we had agreed to stay in Mexico if possible from an employment perspective but I knew that Letty would not want to return. I didn’t either except for the divorce idea.” Also in the margin he had written “this is our house”; “1 yr lease”; “intention.” 

  On December 5, 2016, Respondent filed a suit for possession and custody in 22nd District Court, Hays County.  He stated that he did not want a divorce. On July 13, 2017, the Mexican court issued a divorce decree. On August 21, 2017, this proceeding was filed. The only real dispute was whether Mexico or the United States was the country of A.G.’s habitual residence immediately prior to the removal in November 2016. Petitioner contended that the parties agreed to move to Mexico permanently, and that Respondent unilaterally changed his mind in 2016 when his behavior and religious views changed and Petitioner began discussing a possible divorce. Respondent contended that he and Petitioner never agreed to move to Mexico permanently, but only for a limited duration while Respondent completed his education, and that A.G.’s country of habitual residence had always remained the United States. 
The district court noted that in 2012, the Fifth Circuit “join[ed] the majority of circuits that ‘have adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence.’ ”  “This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age” and “parents’ intentions should be dispositive where ... the child is so young that ‘he or she cannot possibly decide the issue of residency.” In such cases, “the threshold test is whether both parents intended for the child to ‘abandon the [habitual residence] left behind.” Absent shared intent, prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion. Context, rather than specific periods of time spent in one location or another, is key. Berezowsky v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014). 

The Court did not agree with Respondent’s version of the facts, and a preponderance of the evidence indicated that the family abandoned Texas and intended to and did make A.G.’s home in Mexico indefinitely or permanently. Rather than finding an intent to move for a maximum amount of time, the Court found that the initial move was intended to be permanent, or alternatively for a minimum of two years. The Court further found that, at least by 2015, the parents had mutually agreed to stay in Mexico if possible, and there was no agreement to return to the United States at any specific time. The undisputed evidence is that the family abandoned the only “home” A.G. had had in Texas and there was no indication that anyone viewed him as having his habitual home in Texas from which he was temporarily absent while living in Nuevo Laredo. Rather, the evidence showed that the “two parents reached an agreement to raise [A.G.] in Mexico” permanently or indefinitely. Berezowsky, 765 F.3d at 471. Because A.G.’s home in November 2016 was Mexico, and both parents intended it to be Mexico at that time, the Convention dictated that Mexico was his country of habitual residence and A.G. had to be returned there. 

Alemu v Zerihum, 2017 WL 5989213 (D. Colorado, 2017) [Israel][Habitual Residence][Default] [Petition granted

]
In Alemu v Zerihum, 2017 WL 5989213 (D. Colorado, 2017) the district court granted Seleshi Tegan Alemu’s Petition for the return of YT to Israel. YT was born to petitioner and respondent in 2007 in Israel and was 9 years of age. Petitioner and respondent divorced in 2011. As of late 2015, YT was a resident of Israel, living in a home there with Respondent, a Mr. Berhano Terunech, and a half-sibling. In November 2015, Petitioner signed a letter allowing respondent to take YT to the United States for a three-week visit with family. After three weeks passed, Respondent indicated during phone conversations that she wanted to remain in the United States for an additional three months. Petitioner objected but agreed to allow Respondent to remain in the United States for a total of three months. After three months passed, Respondent informed Petitioner that she was not returning YT to Israel. Petitioner objected and told Respondent “that was not right.” Respondent thereafter sent Petitioner a message indicating that he would not see YT again. Petitioner filed the action on December 9, 2016, within one year of Respondent’s refusal to return YT to Israel. Although Respondent was properly served, she did not appear at the hearing, and failed to participate in the action. 

  The district court found that YT was a habitual resident of Israel at the time of removal. Petitioner testified that YT was born in Israel in 2007, and remained there until his removal in 2015. The Court had no trouble concluding that YT was a habitual resident of Israel. Israeli law provides that parents of children are vested with custodial rights, including the right to determine a place of residence. Petitioner testified and submitted exhibits indicating that he was vested with court-ordered custodial rights. The Court concluded that Petitioner set forth sufficient facts to make a prima facie showing of an unlawful removal. Because Respondent declined to attend the hearing, or to otherwise participate in this litigation, she failed to meet her burden of establishing a defense.