Wertz v Wertz, 2018 WL 1575830 (W.D. Virginia, 2018)[Canada] [Grave Risk of Harm] [undertakings] [Petition conditionally granted]

       In Wertz v Wertz, 2018 WL 1575830 (W.D. Virginia, 2018) Tammy Mae Wertz petitioned the court for return of the parties’ minor child to that country.The child, L.E.W., age 8, was removed from Canada on December 20, 2017, without Petitioner’s consent, by Respondent Lewis Edward Wertz, III, and  remained in Virginia since that time. The district court found that Petitioner  met her burden of proving by a preponderance of the evidence that Respondent’s removal of L.E.W. to the United States was wrongful within the meaning of the Hague Convention. In defiance of a Canadian court order and Petitioner’s custody rights, Respondent wrongfully removed the child from Canada on December 20, 2017, where he had habitually resided his entire life. However, the court heard clear and convincing evidence that the child would be subject to a grave risk of harm were he to be returned to Canada without the implementation of certain safeguards, called undertakings, which are necessary to assure the child’s safety. Subject to the undertakings, the court  conditionally granted the  Verified Petition. 

On February 5, 2018, Petitioner filed a Verified Petition against Respondent. The court appointed a guardian ad litem for L.E.W., and directed him to conduct an independent investigation into the facts relevant to the Verified Petition and the defenses raised by the respondents. The court sua sponte appointed counsel for Respondent.The guardian ad litem conducted in-person interviews and upon completion of his investigation, filed a report and recommendation setting forth his findings  The report was provided to the parties and the court received it into evidence at the March 15 bench trial.
 
        Petitioner and Respondent were married in Canada on November 3, 2007. The parties had one child, L.E.W., born April 3, 2009, who was a dual citizen of Canada and the United States. The family lived together in Ontario while Respondent worked as an engineering professor. The parties separated in late 2009. Petitioner left the family home and moved to public housing, where she continued to reside, with J.W. and the infant L.E.W. Respondent remained in the family home. The parties eventually divorced but continued to maintain a sporadic sexual relationship long after their initial separation. Both parents developed a close bond with L.E.W. and sought custody of him. Over the span of the ensuing eight years, the Canadian court was asked to resolve custody issues. 

          Petitioner’s trial testimony gave the court a full view of Petitioner’s prolific use of illegal substances over the course of two decades. Petitioner admitted to using cocaine, crack cocaine, heroin, crystal meth, and marijuana, as well as abusing a staggering list of prescription drugs—Dilaudid, Ritalin, Percocet, OxyContin, Ativan, Adderall, morphine, methadone, diazepam, suboxone, and ketamine—by various means. Petitioner testified she has used drugs while L.E.W. was at school, used cocaine, crystal meth and opiates while L.E.W. was asleep in her home, and smoked marijuana in L.E.W.’s presence. The court was not aware of any Hague Convention cases involving this level of substance abuse, and the enormity of Petitioner’s drug abuse, while the child was in the home, overshadowed this case. Petitioner testified that she completed a 35-day treatment program in 2014 but has relapsed several times over the past two years. As recently as 2017, she admitted to using both cocaine and crystal meth and had numerous positive drug screens. In her Verified Petition she attested she “has been completely free of illicit substances for approximately two years. Other aspects of Petitioner’s life closely associated with her pervasive drug abuse compound the risk to the child. Arguably the most troubling was Petitioner’s relationship with John, a man she knew had been charged with sexual abuse of a child and had a history of domestic abuse of women. Petitioner testified that although she was aware that John had been ordered to have no contact with his own child, she nevertheless began an abusive relationship with him in May 2017, to which her child was exposed. Testimony at trial established that Petitioner appeared at Respondent’s house drunk in the middle of the night complaining that John had abused her. Another time, Petitioner testified John threw a cup at her and cut her face. John was arrested, charged, and served 75 days in jail for this abuse. The court was not convinced that the threat posed by the child’s exposure to men such as John has passed. Indeed, although Petitioner claims to be done with him, John is no longer in prison and was seen by her on the street.

         Although Petitioner admitted that John was present in the home with L.E.W., she insisted she never left her son alone with him. The court’s concern that Petitioner’s drug-influenced lifestyle posed a risk to L.E.W. was confirmed by her on-and-off romantic relationship with another man, Shawn. Petitioner described Shawn as the “main friend” with whom she used drugs. She testified Shawn had given her crystal meth, heroin, and Dilaudid, and that she has given Shawn her prescription Percocet. Petitioner and Shawn used drugs together in her home while L.E.W. slept. At trial, Petitioner referenced by name a host of others she bought drugs from, sold drugs to, and/or used drugs with, neighbors, friends, and a prostitute she met through Shawn.

        In 2011, Petitioner overdosed on Ritalin and suffered a psychotic episode in which she hallucinated and wandered around the common area of her housing complex with a baseball bat, believing there were homeless people in the bushes and dead babies on the ground. Petitioner was hospitalized for two days following this episode, which her daughter J.W. witnessed. L.E.W., who was then just shy of 2, was asleep at the time.
Petitioner had not engaged in legitimate employment in more than a decade. She survived on social assistance and had resorted to illegal means of earning income, such as selling drugs and prostituting herself through an escort agency called Niagara Dolls. Petitioner testified she last worked as a prostitute in 2013. This testimony contradicted a statement she made to the court-appointed guardian ad litem that she had only ever exchanged sex for money with Respondent. Petitioner admitted on direct examination that she was not truthful about this fact in her interview with the guardian ad litem.

  Petitioner frequently asked Respondent for money, long after the parties divorced. At times, money was given in exchange for sexual favors. Petitioner testified that it was possible that she used that money to buy drugs. Other incidents of Petitioner’s addiction adversely impacted the child. School records from 2016–17 revealed L.E.W. was absent 21 and a half days and tardy 56 days while he was in Petitioner’s care. Petitioner admitted leaving L.E.W. alone, unsupervised, with men who lived in her housing complex,one of which is known to Petitioner only by first name. In 2016, she assaulted Respondent in front of L.E.W. While in the car on the way to her suboxone treatment, she punched Respondent and split his lip open.

          Petitioner claimed to have “changed drastically” since then. Drug screens from the past few months of 2018 had been clean, and she claimed to be resolute in her desire to live a drug-free life. Yet her self-described support system included a friend with whom Petitioner currently smoked marijuana and from whom she had illegally purchased suboxone. Also of concern was Petitioner’s testimony that she is confident in her ability to stay clean because the “main friend” she did drugs with,  Shawn, was currently incarcerated. All of this, along with her admitted false statements and long history of drug abuse, led the court to find Petitioner’s claim that she was capable of assuring the safety of the child utterly incredible.

The district court found that petitioner established a prima facie case for return and that Respondent had not established by a preponderance of the evidence that Petitioner acquiesced to the removal of L.E.W. to Virginia during the summer and fall of 2017. It noted that Respondent primarily defended his wrongful removal by arguing that L.E.W. would be subject to grave risk in Petitioner’s care in Canada.  

        The court observed that drug use, under certain circumstances, ... may qualify as grave-risk conduct.” Mlynarski v. Pawezka, 931 F. Supp. 2d 277, 284 (D. Mass. 2013), aff’d, No. 13-1361, 2013 WL 7899192 (1st Cir. May 8, 2013) (finding no grave risk where petitioner had “susceptibility to taking psychoactive substances” and occasionally smoked marijuana). Courts use a two-step approach to determine whether allegations of drug use qualify as a grave risk. “[T]he court must first determine whether the alleged ... drug use in fact occurred. Beyond that, the court must consider as part of the grave risk analysis how such conduct, if confirmed, would affect the child were he to be returned to his habitual residence.” There was no case law to help guide the court in assessing grave risk for the level of drug use presented here.

        The district court pointed out that  courts have found that past drug abuse, standing alone, is insufficient to constitute a grave risk. See Taylor v. Hunt, 2013 WL 620934, at *8 (report and  recommendation adopted, 2013 WL 617058 (E.D. Tex. Feb. 19, 2013) (citing Sanchez v. Sanchez, 2012 WL 5373461, at 3 (W.D. Tex. 2012)) (“Evidence of past acts of domestic abuse or past drug activity in the place of habitual residence is not enough for the grave risk exception to apply.”) Likewise, courts have declined to find grave risk where the past drug abuse occurred outside the presence of the child, or where relationships that posed the risk of drug abuse have been abandoned. See Sanchez v. R.G.L., 761 F.3d 495, 500, 509 (5th Cir. 2014) (finding no gave risk where mother ended relationship with boyfriend who abused and trafficked drugs); In re Hague Application,  2007 WL 4593502, at *10-11 (E.D. Mo. Dec. 28, 2007) (rejecting grave risk defense where petitioner maintained drug-free home and terminated marijuana use, and where prior drug use was not in home or children’s presence). But the limiting factors present in those cases were  not present here, where the evidence established that Petitioner’s unrelenting addiction transcends every other aspect of her life, without regard to the consequences to her child. The petitioner had a staggering history of drug abuse. Petitioner testified to using cocaine, heroin, crystal meth, marijuana, Ritalin, morphine, OxyContin, and Percocet. She admitted using crystal meth and Dilaudid in her home while L.E.W. slept, and to selling drugs, Ritalin and marijuana, on the street. Drug screens from the past two years included positive results for a variety of illegal substances, including cocaine, morphine, OxyContin, benzodiazepine, methadone, amphetamine, ketamine, and methamphetamine. Despite alleging falsely in her Verified Petition that she has been free of illicit substances for the last two years, she has relapsed numerous times. Indeed, Petitioner testified to a relapse in July 2017 and had positive drug screens as recently as December 2017 and January 2018. Petitioner’s testimony suggests that she purchased drugs as recently as December 2017. Petitioner, to her credit, sought treatment for her drug abuse, and her drug screens for the past couple of months of 2018 suggested improvement. But Petitioner had multiple “restarts” due to missing treatments, and reported to her doctor in January 2018 that she had purchased unprescribed suboxone off the street. Given the admitted falsehoods in prior statements made in connection with this litigation, the court was unable to credit Petitioner’s testimony that her drug abuse days were over.

         Petitioner’s continuous pull to drugs further led her to engage in perilous personal conduct, including prostitution and exposing her child to men with dangerous criminal pasts. Although she claimed to have abandoned this lifestyle several years ago, Respondent’s witness Wayne Corby testified that Petitioner worked as an escort as recently as May or June 2017. Petitioner’s drug abuse caused her to expose L.E.W. to dangerous people. The court could not ignore the clear and convincing evidence that Petitioner’s drug abuse, and all of the consequences thereof, constituted a grave risk that L.E.W.’s unconditional return to her custody in Canada would expose him to physical or psychological harm or otherwise place him in an intolerable situation. 

          The district court found that the case was ripe for undertakings. Although the court found that L.E.W. faced a grave risk if returned, this risk could be mitigated pending the Canadian court’s opportunity to make a fulsome custody determination. Similar to the circumstances at issue in Sabogal v. Velarde, 106 F. Supp. 3d 689, 710 (D. Md. 2015), the court was made aware that there was a criminal investigation and possible charge against Respondent for leaving Canada with L.E.W. without Petitioner’s consent and against the court’s order. If working together with the Canadian authorities, the parties can arrange to (1) have the temporary and final custody orders entered on November 22, 2017 and December 21, 2017 vacated, so that the underlying September 26, 2012 joint custody order is reinstated, and (2) arrange to have the criminal charges against Respondent dismissed or the investigation closed, the legal landscape would return to the status quo at the time of the removal. Then Respondent could take the child back to Ontario for custody proceedings. 

         The court directed that it would order the return of L.E.W. to Canada, provided the parties provide proof within sixty (60) days that the following conditions, which would reinstate the status quo at the time of the wrongful removal, have been satisfied: 1. That this custody dispute be resubmitted to the Canadian courts, and a hearing scheduled. 2. That the parties agree to ask the Canadian court to vacate the November 22, 2017 and December 21, 2017 custody orders, and reinstate the September 26, 2012 order pending a further hearing. That the parties take all steps necessary to have dismissed or closed any pending criminal complaints, investigations, or charges in Canada against Respondent, relating to his removal of the child.  That, once L.E.W. is returned to Canada by Respondent, the parties agree that neither party shall remove him from the Niagara Region, Ontario, Canada without an express order of the Canadian court permitting L.E.W.’s removal.  That the parties agree that neither party shall take any drugs for which they do not have current prescriptions and that  the parties transmit forthwith the full record (sealed and unsealed) of this evidentiary hearing, including all pleadings, orders, reports, and transcripts, to the Canadian court presiding over the custody proceeding, FACS Niagara, and the Canadian Children’s Lawyer. The parties shall share the expense of ordering the transcripts. Upon proof that these conditions are satisfied, the court will issue a final order certifying that the conditions have been met, mandating compliance with the listed undertakings, and ordering the return of L.E.W. to Canada.

Frenken v. Hunter, 2018 WL 1536754 (N.D. California, 2018)[Netherlands][Habitual Residence][Federal & State Judicial Remedies] [Petition denied]

In Frenken v. Hunter, 2018 WL 1536754 (N.D. California, 2018) the Court granted Defendant’s motion for summary judgment dismissing the action. 
Plaintiff was the mother and Defendant was the uncle of Child. The Child was born in 2004, in Lihue, Kauai. The Child’s father, David John Hunter (“Father”), was deceased. Plaintiff was a citizen of the Netherlands, The Child was a citizen of both the United States and the Netherlands, and the Father was a resident of California. On April 10, 2006, Plaintiff filed for divorce from Father in the Superior Court of California, Nevada County. Pursuant to a stipulation and order by that court for custody and/or visitation of children, Plaintiff and the Father agreed Plaintiff could move to Texas with Child on or after June 1, 2006. On June 21, 2010, the Nevada County Superior Court entered an order awarding the parties joint custody of the Child, stating that the Child’s “habitual residence” was the United States. In 2012, Plaintiff took the Child to the Netherlands without the Father’s consent. Plaintiff did not respond to the Father’s requests for Plaintiff to return Child. In July 2013, the Father initiated legal proceedings in a district court in the Netherlands, asserting claims under the Hague Convention. On July 23, 2013, the Dutch district court ruled that the Child must be returned to the United States by no later than August 9, 2013. Plaintiff appealed. The Dutch appellate court upheld the lower court’s decision and ordered the return of Child “to the place of her habitual residence in the United States of America” no later than September 7, 2013. Dutch authorities located Plaintiff with the Child in the Netherlands on or about April 22, 2014. The Father, who was in the Netherlands at that time, returned with Child to the United States. After th eChild returned to the United States, the  Father obtained “sole and physical custody” over the Child pursuant to an order of the Marin County Superior Court. The Marin County Superior Court issued that order on November 4, 2014. On December 16, 2014, the Marin County Superior Court entered a subsequent order stating in pertinent part that: “The minor’s country of habitual residence is California [sic].” On August 1, 2016, the Marin County Superior Court issued another order stating that Father and Child resided in California, and that “[t]he United States is the country of habitual residence of the child.” Father died on April 30, 2017. 

On May 1, 2017, the Child filed a petition in Marin County Superior Court to appoint Defendant as her guardian. The Plaintiff opposed the petition. The Marin County Superior Court appointed Defendant as Child’s temporary guardian on May 4, 2017. The Child was domiciled in Marin County, California from April 22, 2014 to at least the time that Plaintiff filed her district court complaint on May 31, 2017. 
The district court found thst Plaintiff’s claims failed under the four-step framework set forth in Mozes. According to Plaintiff, Defendant wrongfully retained child on May 1, 2017. There was no dispute that Child was a habitual resident of California prior to that date. Plaintiff admitted in her complaint that Child had resided in California since April 22, 2014.  In her opposition, Plaintiff acknowledged that she and the Father “agreed” in 2014 that the Father would be Child’s primary caregiver “in the State of California.” Courts on four different occasions, in both the United States and the Netherlands,  found the Child to be a habitual resident of the United States. And the Marin County Superior Court found specifically that California was the  Child’s habitual residence. 

The district court observed that Plaintiff’s complaint not only failed to allege that Child’s habitual residence was the Netherlands, but also attached documents compelling a contrary conclusion. Under Mozes’s third step, the Court applied California law to determine whether Defendant’s retention of the Child breached Plaintiff’s rights. It found that it did not. Pursuant to the Marin County Superior Court’s order, the Father had sole custody of child as of November 4, 2014. Following the Father’s death on April 30, 2017, the Marin County Superior Court appointed Defendant as the Child’s temporary guardian. That appointment occurred on May 4, 2016. Plaintiff failed to identify any facts or authority that would disturb that appointment. Though Plaintiff asserted that custody of Child reverted to Plaintiff upon the Father’s death, she cited no applicable authority supporting her position. Plaintiff’s reliance on the Fourth and Fourteenth Amendments was similarly unavailing; the Ninth Circuit has repeatedly stated that a district court “has authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.” See, e.g., Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999). Pursuant to the Marin County Superior Court’s custody and guardianship orders, Plaintiff had not shown that her custody rights had been breached. The district court held that the Marin County Superior Court’s subsequent May 4, 2017 order, appointing Defendant as Child’s guardian, was sufficient to establish the lawfulness of Defendant’s retention. The court concluded that Defendant met his burden to show that there was no genuine dispute of material fact as to Defendant’s lawful retention of Child. The Court therefore granted Defendant’s motion for summary judgment. 

Soto v Contreras, 2018 WL 507802 (5th Cir., 2018) [Mexico] [Grave Risk of Harm] [Petition granted]

In Soto v Contreras, 2018 WL 507802 (5th Cir., 2018) Veronica Lemus Contreras (Lemus), a native and citizen of Mexico residing in the United States, appealed from a judgment which granted the petition of Ontiveros Soto’s (Ontiveros) seeking return of their child, A.O.L., to Mexico.

 Lemus and Ontiveros married in 1995, and had three children. The family resided in Mexico before Lemus came to the United States with two of the three childrenA.O., female, age 15, and A.O.L., male, age 8,to escape alleged abuse by Ontiveros., The couple “mutually decided” in September 2014 to file for divorce in Mexico.   In April 2015, Lemus told Ontiveros she and the children were going to a party in another town, a three-hour trip. Instead, she came to the United States with A.O. and A.O.L. Lemus sought political asylum in the United States. After learning the location of his wife and children, Ontiveros pursued in district court a petition for return of an abducted child (A.O.L.) under the Hague Convention. (the Hague Convention does not apply to children, such as A.O., over 16; at the time of the bench trial, she was past 16 years of age.

          At a bench trial, the parties presented incompatible versions of events leading to Lemus’ departing Mexico. She accused Ontiveros of, inter alia: physically abusing her and their daughter, A.O.; psychologically abusing the entire family; committing acts of violence against extended family members; and committing adultery. Although, with one exception, Ontiveros contested her accusations, he accused Lemus of, inter alia: committing adultery, incurring excessive debts, and assaulting him. Ontiveros testified he and Lemus fought because she was financially irresponsible. He admitted to having one physical altercation early in the marriage, when he gave her “some spankings with the hand”. He claimed Lemus often assaulted him, and denied further physical altercations. Unrebutted was that Ontiveros never physically abused A.O.L. Conversely, Lemus described her relationship with Ontiveros as “slow torture”, stating he beat her almost daily (or at least monthly) during their relationship. She recounted occurrences of alleged abuse: he beat her with a belt in the shower when she was pregnant with A.O.L.; he fought her brother when he confronted Ontiveros; and he assaulted A.O. and Contreras for trying to protect Lemus, throwing A.O. and Lemus onto the ground and into a garden rail. She stated he also psychologically abused her and the children, with A.O.’s wanting to hang herself and A.O.L.’s wetting the bed. She testified the Mexican police and district attorney refused to help her, forcing her to flee to the United States.

          The Fifth Circuit noted that Lemus’ testimony, however, was at times inconsistent. Lemus was also impeached on cross-examination. The daughter removed to the United States, A.O., testified favorably for Lemus, but in a sometimes contradictory fashion. Following the bench trial, the court rendered findings of fact and conclusions of law, ruling A.O.L. was wrongfully removed and Lemus failed, inter alia, to prove, by clear and convincing evidence, grave risk to A.O.L. Ontiveros v. Lemus, No. 3:16–CV–00867–N, slip op. at 7 (N.D. Tex. 18 Oct. 2016). For that grave-risk defense (the only Hague Convention defense raised on appeal), the court found, inter alia:”[Lemus]’s allegations of abuse—that [Ontiveros] physically and psychologically abused her, sometimes in front of their children, and that [Ontiveros] allegedly physically assaulted their daughter on one occasion—are in conflict with [Ontiveros’] testimony. [Ontiveros] testified that he could recall one instance in which he and [Lemus] engaged in a physical fight, but [Ontiveros] denied any other instances of abuse. Because neither side is able to provide objective evidence, [Lemus’] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm.” The court also found “[Lemus] did not provide any evidence that [Ontiveros] abused or neglected [A.O.L.]”. Id. And, as for A.O.L.’s testimony, it made the following finding:” The Court finds that [A.O.L.’s] responses as to where he would like to live were equivocal. Though in response to questioning by his mother’s attorney, [A.O.L.] responded that he does not want to return to Mexico, he also responded to his father’s attorneys that he enjoys spending time with his father and that he would prefer to split his time between both of his parents.”

On appeal Lemus raised only the grave-risk defense: the court “is not bound to order the return of the child if the [abductor]” establishes, by clear and convincing evidence, “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Hague Convention, art. 13(b). The Fifth Circuit observed that “[F]indings of grave risk are rare”. Delgado v. Osuna, 2015 WL 5095231, at *13 (E.D. Tex. 28 Aug. 2015), aff’d, 837 F.3d 571 (5th Cir. 2016). “The person opposing the child’s return must show that the risk to the child is grave, not merely serious.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 FR 10494–01, 1986 WL 133056 (Mar. 1986). The principles underlying the Hague Convention require the “grave risk must be narrowly construed; otherwise, a broad interpretation would cause the exception to swallow the rule and transform the Convention into an arena for custody disputes”. Tavarez v. Jarrett, 252 F. Supp. 3d 629, 640 (S.D. Tex. 2017) (citing England v. England, 243 F.3d 268, 271 (5th Cir. 2000)). In line with the objectives of the Hague Convention, the abductor must, as noted, prove grave risk by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). This standard “establishes a strong presumption favoring return of a wrongfully removed child”. Danaipour v. McLarey, 286 F.3d 1, 13 (1st Cir. 2002). “Clear and convincing evidence” is that weight of proof which “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts” of the case. In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting Cruzan by Cruzan v. Dir. Missouri Dep’t of Health, 497 U.S. 261, 285 n.11 (1990)).

The Fifth Circuit affirmed. It noted that for the first of her two claims of legal error, reviewed de novo, Lemus asserted the court improperly imposed a heightened legal standard in ruling that, “[b]ecause neither side [was] able to provide objective evidence, [her] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm”. Lemus asserted correctly the Hague Convention does not require objective evidence in proving the grave-risk defense by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). It found that the court did not require such evidence; therefore, it did not impose a heightened legal standard.

Underlying Lemus’ other claim of legal error was the grave-risk defense’s requiring her showing a “grave risk that [A.O.L.’s] return [to Mexico] would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation”. Hague Convention, art. 13(b). In that regard, she contended the court imposed a heightened legal standard in finding “[Lemus] did not provide any evidence that [Ontiveros] abused or neglected [A.O.L.]”.  Much like the “objective evidence” statement discussed supra, review of the court’s findings of fact and conclusions of law revealed it did not impose a heightened standard. Again, the court made its statement about no evidence of abuse or neglect of A.O.L. in the context of weighing the evidence, in its findings-of-fact section, in the paragraph following its finding the evidence was “in conflict”. The court never stated abuse to Lemus could not produce the requisite grave risk to A.O.L., but, instead, recited the correct legal standard.

von Meer v Hoselton, 2018 WL 1281949 (D. Arizona, 2018)[Italy] [Grave risk of harm] [age and maturity defense] [Petition granted]

In von Meer v Hoselton, 2018 WL 1281949 (D. Arizona, 2018) the court granted the petition for return to Italy.

Petitioner, a German citizen and resident of Italy, and Respondent, a United States citizen, were involved in a long term domestic relationship. Their child (“N.V.”), was born in Germany in late 2002. N.V. held both German and United States citizenship. Petitioner, Respondent and N.V. lived together in Germany until early 2004, when the three moved to Italy and lived there together. In 2006, Petitioner and Respondent ended their domestic relationship and began maintaining separate households, both in the area of Florence, Italy. N.V. would alternate living with each parent on a weekly basis. This arrangement ended in the autumn of 2016, when Respondent relocated to Arizona for work and to further her education. At that time, N.V. remained in Italy with Petitioner and continued attending the private school in which she had previously been enrolled. On December 21, 2016, several months after Respondent relocated to Arizona, a judge of the Florence Court entered an order granting Petitioner exclusive custody of N.V. In April 2017, Petitioner bought a round-trip airline ticket for N.V. to spend the summer with her mother in the United States. In June 2017, when N.V. had completed her school year in Florence, Petitioner flew with her from Europe to Las Vegas to meet Respondent. Petitioner returned to Italy. N.V.’s round-trip ticket bore a return date of August 16, 2017, shortly before her school would begin the new academic year.  Petitioner had provided N.V. with a data-enabled cellular telephone. In July 2017, after N.V.’s communications to her father had diminished and Petitioner was unable to reach her on her phone, Petitioner’s attorney in Italy, Roberta Ceschini, began communicating with Respondent via email to communicate Petitioner’s expectation that Respondent would return N.V. to Italy on the August 16 flight. Ms. Ceschini advised Respondent that if she did not return N.V. timely, Ceschini would file a petition under the Hague Convention. Respondent acknowledged in a July 27, 2017 email to Ceschini that “it was my understanding [N.V.] is to return in August from the get go,” but advised that N.V. did not want to return to Italy, and that as N. V’s mother, “it is my duty to support and protect her.” N.V. did not return to Italy on August 16, 2017, or at any time thereafter.

          The district court found that both parties’ testimony, N.V’s round trip airline ticket and the email communications introduced into evidence all demonstrated that Petitioner and Respondent had agreed N.V. would stay in Arizona until August 16, 2017, and thereafter return to Italy. The retention at issue began on August 16, when Respondent did not return N.V. to Europe as agreed and continues to this day. The Court found that as of August 16, 2017, the habitual residence of N.V. was Italy. The parties had lived there with N.V. together from 2004 until their separation in approximately 2006, and then separately from 2006 until late 2016, when Respondent relocated to Arizona. N.V. remained in Italy with Petitioner and continued to attend school there after Respondent moved to Arizona, and neither party evinced any indication of an intent for N.V. to leave. At the point N.V. came to Arizona in June 2016 to visit her mother, the parties agreed she would be returning to Italy on August 16 to begin her next school year. Regardless of what Respondent may have individually intended to do after N.V. arrived to visit her, the Court finds that the last shared intent of the parties was for N.V.’s habitual residence to be Italy. Murphy, 746 F.3d at 1150.

At the hearing, Petitioner introduced an Order of the Florence Court dated December 21, 2016, granting him exclusive custody of N.V. The Court concluded that the retention of N.V. as of August 16, 2017, and thereafter breached Petitioner’s custody rights in that, during the period of wrongful retention, he lost his ability to communicate with N.V. and participate in the decision of where and under what circumstances she would live. He also has lost his ability to parent N.V. or otherwise have physical access to her. Respondent’s retention of N.V. has breached the custody rights attributed to Petitioner under the Florence Court Order. The Court found the evidence was unequivocal that Petitioner was exercising his rights of custody at the time of N.V.’s retention in Arizona. The Court concluded that Respondent did wrongfully retain N.V. from returning to Italy, her last habitual residence.

The district court rejected Respondents argument that returning N.V. to Italy would present a grave risk of physical or psychological harm. Respondent argued that the school system in Arizona is better equipped to address N.V.’s dyslexia and similar learning disabilities than her school in Florence, and the Italian secondary education system generally. This argument goes to the issue of the best interests of the child and is properly considered by the family court with jurisdiction to determine custody issues.

Respondent also presented evidence that N.V. had on one or more occasions seen Petitioner “smoke weed and hash,” and that she also had seen Respondent in the car while, or after, drinking alcohol.  The Court held that the allegations if true, especially absent testimony or other evidence that Petitioner put N.V. at risk of harm while engaged in these acts, did not rise to the level of grave harm contemplated by Article 13(b) of the Convention.

          The court also found that Respondent did not establish the ‘age and maturity” defense.

At the hearing, N.V. testified that she wanted “to live with my mom and be here in America because I was living in a really sad, miserable place in Italy with my dad.” N.V. gave as reasons for her desire to live in the United States with her mother the following: that she was lonely and had only one good friend in Italy at her school; that her father’s home was isolated and there were no children her age nearby; that she was bullied at school because her mother was not present; that she was not learning proper English at the Italian school; and that her father drank and smoked “weed and hash.” N.V. was adamant about her desire to remain with Respondent in Arizona. The Court found that N.V. objected to being returned to Italy, the first element required for the “wishes of the child” exception to the Convention to apply. It also found that, at 15, N.V.  attained an age and enough of a degree of maturity that a Court could appropriately take her views into account.

The Court exercised its discretion not to apply the exception in this matter for two distinct reasons. First, the Court was persuaded that “in making its determination [whether to apply the wishes of the child exception], a court should also consider whether a child’s desire to remain or return to a place is ‘the product of undue influence,’ in which case the child’s wishes should not be considered.” Tsai-Yi v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3rd Cir. 2007)(internal citations omitted). The Court concluded that N.V’s testimony contained many of the hallmarks of coached or prepared testimony, and thus to an imprecisely known but significant degree is the product of Respondent’s influence on her. Much of N.V.’s testimony consisted of answers that she began to provide before Respondent had even completed her questions, and Respondent also led N.V. in her questioning, a habit the Court observed multiple times and to which it sustained Petitioner’s objection on the single occasion Petitioner did object. The Court concluded, based on the fact that N.V. has been exclusively with Respondent for the past nine months and the manner in which N.V. testified as to her desire to stay in the United States and her reasons therefor, that N.V.’s stated wishes were likely the product of Respondent’s undue influence during those nine months.

The Court also concluded this was an inappropriate matter in which to apply the wishes of the child exception and refuse to order N.V.’s return to Italy for an independent reason. “District courts may decline to apply a defense where doing so would reward a parent for wrongfully [] retaining the child [] in violation of a Contracting State’s custody orders.” Custodio v. Samillan, 842 F.3d 1084, 1092 (8th Cir. 2016). The Court found this to be just such a case. Petitioner produced a lawful order of the Florence Court, unchallenged by Respondent, awarding exclusive custody to Petitioner as of December 2016. When Respondent retained N.V. beyond the agreed upon date of August 16, 2017, she violated the Contracting State’s custody order. To except application of the Convention on the basis of N.V.’s wishes, which were in whole or in part the product of feelings she  developed during the last seven months while she was unlawfully retained in Arizona by Respondent, “would allow [Respondent] to benefit from her own violations of the Convention.” Garcia, 808 F.3d at 1168.

Sundberg v Bailey, 2017 WL 6757218 (W.D. North Carolina, 2017)[Sweden] [Habitual residence] [Petition granted]

`         In Sundberg v Bailey, 2017 WL 6757218 (W.D. North Carolina, 2017) the Court granted the Petition of Karl Henrik Sundberg for return of their child to Sweden. Petitioner commenced the action on November 1, 2017, against the Respondent Lisa Michelle Bailey (“Respondent”) claiming that the Respondent had wrongfully retained the parties’ four-year-old daughter, L.P.B.S. (“Child”), in the United States and seeking the Child’s return to Sweden

The Petitioner was a citizen and resident of Sweden. He had the ability to travel to the United States for short periods as a tourist. The Respondent was a citizen and resident of the United States. Immediately prior to coming to the United States in September 2016, the Respondent had resided in Sweden for four years with legal immigration status. The Petitioner and the Respondent were married on June 29, 2013, in Sweden. The Child was born to the Petitioner and Respondent in 2013, in Uppsala, Sweden. The Child was a citizen of both Sweden and the United States. The Petitioner and the Respondent were divorced on August 13, 2015, in Uppsala, Sweden. Following their divorce, the Petitioner and the Respondent exercised joint custodial rights over the Child, pursuant to Swedish law. The Child resided exclusively in Sweden for the first three years of her life and made occasional visits to see family in the United States. She was able to speak both Swedish and English.  In the summer of 2016, the Respondent asked the Petitioner for his permission to take the Child for an extended period to the United States. The parties discussed the possibility of all three (the Petitioner, the Respondent, and the Child) moving to the United States, if the Petitioner could obtain legal immigrant status through a work visa or some other means but no such legal status was then pursued. As a product of these discussions, on August 14, 2016, the parties signed an agreement, drafted by the Respondent, which provides, in pertinent part, as follows: The purpose of this letter is to state a mutual agreement between Lisa Michelle Bailey and Karl Henrik Sundberg. Lisa and Karl have shared custody of their daughter, [Child]. Lisa and Karl agree to the following: 1. Lisa will leave Sweden and the European Union, with [Child], to spend several months in USA, where Lisa and [Child] are both citizens. Lisa and [Child] will depart from Sweden on 20 Sept. 2016, and their destination is Asheville, North Carolina, USA. 2. In May 2017, Lisa and Karl will determine a future agreement about Lisa and [Child’s] residence and a plan for continuing shared custody of [Child].

Six days later, on August 20, 2016, the Petitioner and the Respondent executed a Tenancy Agreement, under which terms the Respondent agreed to rent two rooms from the Petitioner in his home, for a term beginning on September 30, 2016 and ending on September 30, 2017. The Petitioner testified that the parties entered into this agreement so that the Respondent would have a place to live with the Child upon her anticipated return to Sweden. The parties concede that the Respondent did not pay any rent called for under this agreement. The Respondent testified that she executed the Tenancy Agreement simply so that she could apply for a housing allowance from the Swedish government to subsidize her rent, but that she never received this subsidy.

The Respondent and the Child came to the United States on September 20, 2016, using one-way airline tickets. The Respondent rented a room in a house in West Asheville for herself and the Child, and the Respondent soon found employment. The parties continued to discuss the possibility of the Petitioner seeking employment in the United States and relocating there, but no affirmative steps were taken by either party to obtain a green card or work visa for the Petitioner.

 After the Respondent brought the Child to the United States, the Petitioner maintained regular contact with the Child via Skype. The Petitioner traveled to the United States in December 2016 and visited with the Child and the Respondent for approximately one month. The Child was excited about returning to Sweden in the summer. The Petitioner’s sister also visited the Child while she was in the United States, and it was the sister’s understanding that the parties intended for the Child to return to Sweden at the beginning of the summer.

In an e-mail communication with the Petitioner in March 2017, the Respondent advised the Petitioner that she did not intend to return the Child to Sweden. In April 2017, the Respondent commenced a child custody suit in Buncombe County, North Carolina. The Petitioner did not participate in these proceedings. When the Petitioner was not able to secure the return of the Child through administrative means, he commenced the present action on November 1, 2017. [Doc. 1].

The parties stipulated that at all times relevant to those proceedings, the Petitioner had rights of joint custody and was exercising those rights. The parties disagree, however, as to the issue of “habitual residence.” The Petitioner contends that the Child’s country of habitual residence was Sweden, and that the Respondent wrongfully retained the Child when she refused to return her to Sweden in accordance with the parties’ written agreement. The Respondent, on the other hand, contends that with their relocation in September 2016, to which the Petitioner consented, the Child’s country of habitual residence became the United States and thus no wrongful removal or retention ever occurred.

The district court found that as of the summer of 2016, the Child’s country of habitual residence was Sweden – the country in which she was born and the only country in which she had ever resided. While the parties agreed that the Child could come with the Respondent to the United States for a limited period of time, the parties did not share any settled intent to abandon Sweden as the Child’s country of habitual residence. The parties’ written agreement, which was drafted and signed by the Respondent, explicitly stated that the Respondent and the Child would reside in the United States for a period of “several months” beginning in September 2016 and that the parties would make future arrangements regarding custody in May 2017. Consistent with that agreement, the Child remained enrolled in the Swedish healthcare system, and the Respondent continued to receive child welfare benefits from the Swedish government for the benefit of the Child. While the Child’s return date was not fixed with certainty (as evidenced by the lack of a return plane ticket), it was clear that the parties anticipated the Respondent and the Child returning to Sweden no later than May 2017 (and possibly earlier, if the Respondent could not find employment). The Petitioner testified that, on his part, this expectation never changed, but that the Respondent’s intent changed in early 2017. The Respondent’s unilateral change of heart, however, does not alter the child’s habitual residence of Sweden. “[W]here the child’s initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period ... courts have generally refused to find that the changed intentions of one parent led to an alteration in the child’s habitual residence.” Maxwell, 588 F.3d at 251 (quoting Mozes, 239 F3d at 1077) (internal quotation marks omitted).

Other evidence of the parties’ intent indicated that the move was not intended to be permanent. The Court concluded that the Respondent’s move to the United States with the Child was intended to be of a limited duration and that the parties did not have a shared, settled intent to abandon Sweden as the Child’s country of habitual residence.

Having determined that the parents lacked a shared, settled intent to change the Child’s country of habitual residence, the Court considered the extent of the Child’s acclimatization to the United States. “To infer abandonment of a habitual residence by acclimatization, the objective facts must point unequivocally to the child’s ordinary or habitual residence being in the new country.” Murphy v. Sloan, 764 F.3d 1144, 1152 (9th Cir. 2014), cert. denied, 135 S. Ct. 1183 (2015) (quoting Mozes, 239 F. 3d at 1081) (emphasis in original; internal quotation marks and other alterations omitted). While the Court should consider the extent of 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 1079.

The Court found that while the Child was well-adjusted in the United States, she spent the first three years of her life in Sweden. She maintained significant contacts with Sweden, in that she was in regular contact with her father, as well as her Swedish aunt and cousins. She remained enrolled in preschool in Sweden and continues to be a patient in the Swedish healthcare system. The Child was only four years old, and therefore was not of an age where is she strongly attached to any particular school or social environment. Karkkainen v. Kovalchuk, 445 F.3d 280, 296 (3d Cir. 2006) (noting that the issue of acclimatization is “secondary” in a case involving a very young child “because the child lacks the ability to truly acclimatize to a new environment”).¹

The Court concluded that the Child had not acclimatized to living in the United States to such an extent and in such a manner that it could be said that her country of habitual residence had been abandoned. The Child’s habitual residence was, and continued to be, the country of Sweden. Therefore, the Court concluded that the Petitioner established by a preponderance of the evidence that when the Respondent failed to return the Child to Sweden as agreed by the end of May 2017 that the Child was retained from her country of habitual residence in violation of the Petitioner’s custody rights in violation of the Hague Convention and ICARA.

           The Respondent raised the defenses of consent and acquiescence. For the reasons stated by the Court in finding that the parties lacked a shared settled intent to abandon Sweden as the Child’s country of habitual residence, the Court found that the defense of consent was not applicable to this case.  Petitioner consistently intended for the Child to return to Sweden no later than May 2017; at no time did he consent to a permanent relocation or even a stay of an indefinite nature. The respondent did not present any evidence to demonstrate that the Petitioner acquiesced to the Respondent’s decision not to return to Sweden.

Smith v Smith, 2018 WL 953338 (D. Idaho, 2018)[United Kingdom] [Age and Maturity defense] [Petition granted]

In Smith v Smith, 2018 WL 953338 (D. Idaho, 2018) the court granted the petition for the return of the minor child DMS to the United Kingdom.

The Smiths were married in 1997 and resided in England. Vickie was a citizen of the United States; David iwas a citizen of the United Kingdom. While residing in England, they had two children, DOS. (now age 16) and DMS (now age 15). Nearly twenty years later, the marriage broke down and David filed for divorce. The court in England granted primary custody of the children to Vickie while David received visitation rights. Vickie initially filed a motion with the English court to remove the boys permanently from the jurisdiction but withdrew that motion, and represented to the court, through her solicitor, that “she will not remove the children from the jurisdiction without the agreement of [David Smith].” On May 30, 2017, Vickie, a United States citizen, absconded with DMS to the United States without David’s permission, and without approval of the English court, leaving behind her other child DOS. Vickie and DMS lived briefly in Colville, Washington, where his mother’s siblings lived, and then moved in with various other family members, and for a short time, lived in a homeless shelter. Since August of 2017, Vickie and DMS have lived in Caldwell, Idaho, with a childhood friend of Vickie’s. Vickie works part-time at a convenience store in Nampa. DMS has completed the first semester of his sophomore year at Caldwell High School, and recently began his second semester.

David initiated proceedings in the English court to compel Vickie to return DMS to England. The court did not grant the requested relief because it was unclear whether Vickie had notice of the petition. David filed a complaint against Vickie in the district Court on November 30, 2017.

           

The district court found that David carried his burden of proving that (1) DMS was removed in May of 2017; (2) at that time, DMS was habitually residing in England; (2) the removal breached Vickie’s assurance to the court that she would not remove DMS without David’s consent; and (3) David was exercising his custodial rights at the time of the removal.

The court found that Vickie deliberately violated the child custody arrangement set forth in the United Kingdom court by bringing DMS to the United States without permission and without any notice to either the court or David. Vickie’s claim that an unnamed policeman told her she was excused from complying with the London court custody order by a domestic violence law is not credible.

The Court found that David was exercising his custodial rights at the time of removal. The English law does not use the word “custody” but instead speaks of “parental responsibility,” which is defined as “all the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and his property.” See Haimdas v. Haimdas, 720 F.Supp.2d 183, 202 (E.D.N.Y. 2010) (quoting the United Kingdom Children Act of 1989). A finding that a parent exercised parental responsibility under this English law has been deemed to support a finding that he has exercised his custodial rights under the Hague Convention.  David was current in his child support payments, provided a home for DMS, and cooked meals during the times he had contact periods. He was exercising his parental responsibilities.

Vickie Smith raised the mature child defense. To prevail on this defense, she must establish by a preponderance of the evidence that (1) the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “the child objects to being returned.” See Hague Convention art. 13; Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016). “[T]he courts must narrowly interpret the exceptions lest they swallow the rule of return.” Asvesta v Petroutsas, 580 F.3d 1000, 1003-04 (9^th Cir. 2009).

The Court asked DMS a lengthy series of questions designed to determine his maturity level and his desires. The Court was impressed with his intelligent and articulate answers. On the basis of that colloquy, the Court found (1) that DMS was mature enough that the Court should take his desires into account, and (2) that DMS desires to remain in the United States. Given these findings, and the authority quoted above, it would be “very difficult” to return a child the age of DMS against his will. At the same time, DMS had not acquired close friendships here, and spent much of his free time doing solitary indoor activities, which is what he did in the United Kingdom. There was no evidence that he was having unique experiences here that he could not have in the United Kingdom. He had no strong pre-removal desire to come to the United States, but testified that he made up his mind to leave with his mother just prior to coming here. Importantly, he testified that if he was returned to the United Kingdom, he was not sure whether he would return to the United States when he turned sixteen. DMS’s desire to remain here had been powerfully influenced by Vickie’s very strong desire to remain here.  While the Court could not find that Vickie has unduly influenced DMS, the Court found that his desire to remain here was largely tied to Vickie’s desire and is not a strongly held independent desire. These findings meant either that (1) the mature child defense has not been proven; or (2) the bare minimum elements of the mature child defense have been proven, but DMS’s tepid and dependent desire cannot override the transcendent aim of the Hague Convention to return a minor child wrongfully removed. Either way, the Court found that the mature child defense did not prevent removal.

Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) [El Salvador] [Habitual Residence] [Petition dismissed]

In Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) the Court granted the Respondents motion to dismiss the petition for return of the child to El Salvador.

Petitioner Noemy Elizabeth Membreño Peralta was the mother of a ten-year-old child, GM. GM’s father, Eli Escobar Garay was not a party to this dispute. The Parents resided in El Salvador. Respondent Guadelupe del Carmen Escobar Garay was GM’s paternal aunt. Respondent resided in the United States. GM was born in El Salvador on January 14, 2007, and lived with Petitioner in El Salvador until 2016. In early 2016, the Parents agreed to leave El Salvador and travel to the United States with GM and Son. The Parents intended for Garay and GM to travel separately from Petitioner and Son. On approximately March 14, 2016, Garay and GM left El Salvador and traveled to the United States. Approximately one month later, Petitioner and Son left El Salvador, intending to travel to the United States. On approximately March 25, 2016, after Garay and GM entered the United States, United States immigration officials detained Garay and GM for traveling illegally. While Garay and GM were being detained in the United States, Petitioner and Son were stopped in Mexico (in route to the United States) and deported to El Salvador. Petitioner alleges that, because of Garay and GM’s detention, Petitioner gave Respondent—who was residing in the United States—temporary authorization to retain GM so that United States immigration officials would release GM to Respondent. Following GM’s release to Respondent, Garay was deported to El Salvador. GM has since resided with Respondent in the United States.  On April 26, 2016, Petitioner filed a lawsuit contending Respondent was wrongfully retaining GM in the United States and asking the Court to order the return of GM to El Salvador.  Respondent moved to dismiss Petitioner’s lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1). After an evidentiary hearing the court granted the motion.

The district court found that Petitioner’s admission that the Parents intended the family to remain in the United States indefinitely strongly indicated the Parents had a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Mozes, 239 F.3d at 1077 (recognizing a court can find mutual abandonment based on the settled mutual intent to stay in a separate country indefinitely). The Parents testified to bringing their passports, personal identification, and other documents with them as they traveled from El Salvador to the United States. Petitioner testified that she and Garay each quit their respective jobs in anticipation of leaving El Salvador. This testimony also indicated a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Delgado v. Osuna, 837 F.3d 571, 579 (5th Cir. 2016); see also Berezowsky v. Ojeda, 765 F.3d 456, 474 (5th Cir. 2014). The Court found the evidence conclusively established the Parents’ shared intent to abandon El Salvador and permanently relocate GM to the United States.

Petitioner alleged that, regardless of the Parents’ previous intentions, after the Parents were deported to El Salvador, their shared intention shifted to reestablishing GM’s permanent residence in El Salvador. However, by that time, GM had already been relocated to the United States and retained by Respondent. See Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993) (finding there must be a change in geography to establish a new habitual residence). Thus, at the time Respondent retained GM, El Salvador had been abandoned as GM’s country of habitual residence. Petitioner has therefore failed to meet her burden of showing that GM’s retention was wrongful. Accordingly, the Court lacked subject matter jurisdiction over Petitioner’s lawsuit, and Respondent’s motion to dismiss was granted.