Martinez v Urena, 2018 WL 2451199 (EDNY, 2018)[Dominican Republic] [Return remedy] [Enforcement]

        In Martinez v Urena, 2018 WL 2451199 (EDNY, 2018) Petitioner moved the Court for an order directing the parties’ twin boys be returned to the Dominican Republic in accordance with a stipulation of settlement which was previously “so-ordered” by the district court. The lawsuit was commenced in November 2016. The complaint recited that petitioner was a citizen of the Dominican Republic. Respondent was a citizen of the United States and the Dominican Republic. The parties were married in 2010. After their marriage, the parties tried unsuccessfully to obtain a United States visa for petitioner. In October 2013, after the parties’ twin boys were born, respondent proposed that he bring them to the United States and that petitioner continue with the visa-application process so that she could join them. Petitioner authorized the children to travel to the United States in 2014 but did so on the implicit condition that she would join them in the United States as soon as her visa application was granted. After the two boys traveled to the United States to meet respondent (no later than July 28, 2014), respondent filed divorce papers against petitioner in the Dominican Republic. Respondent then informed petitioner that he intended to keep the children with him in the United States. Respondent obtained a default custody order in Queens Family Court. Petitioner did not participate in the proceeding. On July 28, 2015, exactly one year after the date that her second child traveled to the United States, petitioner filed an application under the Hague Convention. Petitioner then filed this complaint in federal court in November 2016 seeking the return of her twin boys under the Hague Convention.

         In January 2017, the parties entered into a stipulation, which provided (in relevant part): 1. Custody, including temporary custody, of the Children, AAUM and ASUM, shall be determined by a court in the Dominican Republic; 2. Petitioner shall commence the custody proceeding in the Dominican Republic by February 10, 2017; 3. Respondent shall subject himself and, if required by a court in the Dominican Republic, the Children[,] to the jurisdiction of the court in the Dominican Republic for purposes of such custody proceeding;  4. If the Children must be present in the Dominican Republic for purposes of such custody proceeding or for the court in the Dominican Republic to obtain jurisdiction over them, the Children shall be made present in the Dominican Republic for such purposes; * * * 9. The Court shall retain jurisdiction over this matter for purposes of enforcing this Stipulation and Order. The parties submitted the proposed agreed-to stipulation to the Court, which “so-ordered’ it.

  As contemplated by the stipulation, petitioner commenced a proceeding for custody in the Dominican Republic. The Dominican Republic court held a hearing on the case in January 2018 and dismissed the case. Petitioner then filed this motion for an order directing the children to be returned to the Dominican Republic. Petitioner attached to he motion a translation of the Dominican Republic court’s opinion dismissing the case. According to petitioner, the dismissal was for lack of jurisdiction because the children resided in the United States with their father. Article 90 of the Dominican Republic Code 136-03, states that a custody claim must be filed in the court where the person with guardianship over the children resides. According to petitioner, this dismissal was without prejudice and petitioner could bring her case again if respondent returns the children to the Dominican Republic. To support this interpretation, petitioner provided a declaration of her counsel from the Dominican Republic, sworn under penalty of perjury.
The Petitioner then made the current motion. The district court observed that this case and the Petitioner’s motion was based on the Hague Convention and that the return remedy does not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19; see also 22 U.S.C. § 9001(b)(4). Petitioner sought an order enforcing the stipulation and order to which both parties agreed, which was intended to resolve petitioner’s claim under the Hague Convention that respondent wrongfully removed their children from the Dominican Republic to the United States because he removed the children in breach of her rights of custody over them.  

         The district court pointed out that Respondent’s opposition did not challenge the Court’s authority to enforce the parties’ agreed-to order but made several arguments on the merits of petitioner’s underlying complaint. First, respondent argued that petitioner could not bring her claim under the Hague Convention because she granted permission for the children to travel to the United States in the first instance.  Second, respondent argued that bringing the children to the Dominican Republic would be futile because the court in the Dominican Republic has already determined that he has legal custody, or, in the alternative, it would be futile because the Dominican Republic court will simply defer to the Brooklyn Family Court’s current custody order. It rejected this argument because that Court did not decide the merits of the claim but dismissed the case for lack of jurisdiction because the children resided in the United States with their father. Furthermore, respondent has not cited any provisions of Dominican Republic law to support his argument that the Dominican Republic court would defer to the Brooklyn Family Court if the children were returned to the Dominican Republic. Finally, respondent argued that Hague Conviction did not apply because “petitioner waited more than a year to bring the instant motion before this Court.” The court pointed out that Defendant appeared to be invoking the “now settled” defense in Article 12 of the Convention. A respondent who opposes the return of the children has the burden of proving this exception under Article 12 applies, meaning that he must establish, by the preponderance of the evidence, that (1) the petitioner did not file the petition within one year of the time that the child was wrongfully removed or retained and (2) the child has become settled in the new environment.

  The district court found that the Respondents argument was misplaced. It attacked the underlying petition, which was already resolved through the parties’ stipulation and was not at issue in this motion. Moreover, even if it were appropriate to consider respondent’s “now settled” defense to the underlying petition respondent did not submit any evidence that the children have become settled in their new environment.

  Petitioner sought to enforce an order previously issued by this Court. None of respondent’s arguments in opposition provided reasons why the Court should not issue the requested order. However, 22 U.S.C. § 9004(b) limits a court’s authority to “order a child removed from the person having physical control of the child unless the applicable requirements of State law are satisfied.” Petitioner did not submit any evidence that the order she requested requiring respondent to surrender the children to her or a Court-appointed guardian complied with New York state law. The Court therefore granted petitioner’s request for an order enforcing the terms of the parties’ stipulation as follows: “Respondent is directed to return the children to the Dominican Republic as promptly as possible, but no later than 60 days from the date of this order. Respondent must pay the children’s reasonable travel expenses to return. The children must remain in the Dominican Republic for however long is required for a Dominican Republic court to exercise jurisdiction over them and the parties’ custody dispute. If respondent wishes the children to return in the company of petitioner or another temporary guardian appointed by the court, in lieu of returning with them to the Dominican Republic himself, he may do so, but must inform the Court of this choice within 14 days.”

Takeshi Ogawa v Kynong Sun Kang, 2018 WL 2376338 (D. Utah, 2018) [Japan] [Rights of Custody] [Petition denied]

In Takeshi Ogawa v Kynong Sun Kang, 2018 WL 2376338 (D. Utah, 2018)  Petitioner Takeshi Ogawa’ sought the ruturn of the parties twins to Japan. Ogawa and Kang were married and lived together in  Japan. Ogawa was a Japanese national, and Kang was a South Korean national. Ogawa and Kang were the parents of twelve-year-old twins, N.O and N.O. The family lived together, mostly in Japan, until 2012. In April 2012, Kang and the twins relocated to the United States while Ogawa remained in Japan. The parties were intending to divorce at that time. In March 2013, Ogawa and Kang finalized their divorce by mutual agreement. Pursuant to the agreement, Kang returned the children to Japan and Ogawa’s custody. Although the agreement stated that Ogawa was to hand over the children to Kang on March 31, 2017, Ogawa kept the children living with him in Japan. Kang stated that she made efforts with authorities in Japan to have the “hand-over” provision of the divorce agreement enforced but she received no help and was unable to have the children turned over to her. The divorce agreement also stated that commencing in April 2017, Ogawa would pay 30,000 yen for each child each month to an account designated by Kang. However, Kang alleged that Ogawa had paid nothing. In October 2017, the twins traveled from Japan to South Korea to celebrate a traditional Korean festival with their maternal grandparents. Ogawa intended to travel to South Korea after the festival to pick up the twins and return with them to Japan. However, Kang was in South Korea during the time of the festival and took the children back to the United States with her. Kang sent a text to Ogawa with a picture of the children and a message that the children were doing well in the United States. Ogawa responded to the text message with several objections. However, Kang did not respond. After several weeks, on October 23, 2017, Kang responded that the twins were very happy and doing well. She also stated that Ogawa “would have never cooperated and allowed the kids to come to the USA. I’m sorry, this is the only way I could have got them.”

After trial, the Court found that Petitioner failed to meet his burden of showing by a preponderance of the evidence that the removal of the twins was in breach of Ogawa’s custody rights under the parties’ divorce agreement. The court concluded that the only clear reading of the agreement was that Ogawa gained physical custody of the children until March 31, 2017, at which time he would deliver the children to Kang and begin paying monthly child support. There was no provision in the Agreement stating that Kang would return the children to Ogawa after she was given physical custody of the children on March 31, 2017. In addition, the agreement provided that Ogawa would pay monthly child support to Kang until the children were twenty years old. This provision clearly demonstrated that the parties intended that Kang would have the primary physical custody of the children from March 31, 2017, forward.

          In dicta, the Court applied the  “age and maturity” exception, and concluded that  even if the court had found that Ogawa had demonstrated a prima facie case, the girls wereof an appropriate age and maturity such that it was appropriate for the court to take into account their desire to stay in Utah with their mother and not to return to Japan to live with their father. The court denied  Ogawa’s petition for the return of the children under the Hague Convention.

LM v JF, 2018 WL 2171080 (Sup. Ct., 2018)[Dominican Republic] [Habitual Residence][Grave risk of harm]

In LM v JF, 2018 WL 2171080 (Sup. Ct., 2018) the Court granted the mothers Hague Convention Petition for an order directing the return of the parties son to the Dominican Republic.

The parties were never married. The Mother was a citizen of the Dominican Republic and the Father was a citizen of the United States. The parties met in 2010 in the Dominican Republic where both were enrolled in medical school. The Child was born in the Dominican Republic, was raised in the Dominican Republic and spent time each year visiting the Father’s family whom resided in Levittown, New York. Prior to the Child’s first visit to the United States the parties obtained a United States passport and United States citizenship for the Child. During a stay in New York in or about April, 2013, the parties obtained a social security card on behalf of the Child listing the Levittown, New York, address as the Child’s residence.

The Mother graduated from medical school in 2011. In August, 2014, the Mother left for Rochester, New York to begin studies for a Masters Degree while the Father remained in the Dominican Republic with the Child. The Mother visited the Child and communicated with the Child via “Skype” while in Rochester.   In August of 2015, the Father learned that the Mother had become romantically involved with another man while in Rochester, New York. The Mother completed her Master’s Degree and returned to the Dominican Republic in February, 2016. Upon her return, the Mother stated that the Father did not allow her to see the Child until four days later. She  sought the assistance of the Dominican Republic courts and the parties agreed to an “informal arrangement” where the Mother would be permitted to spend time with the Child. In March, 2016, the Mother filed documents with the authorities in the Dominican Republic to prevent the Father from leaving the Country with the Child without her consent. On March 15, 2016, there was an altercation between the parties wherein the Father alleged the Mother had pushed her way inside his home and physically lunged at him. The parties returned to court and obtained a reciprocal “order of protection.”

On October 19, 2016, both parties, while represented by counsel, appeared in court and agreed to an order wherein they would equally share time with the Child. On November 30, 2016, the Father, the Child and the Paternal Grandmother, traveled to the Father’s parent’s home in Levittown, New York, with no intention of returning. On December 5, 2016, the Father filed a custody petition in Family Court which granted the Father’s application for sole legal and residential custody of the Child upon the default of the Mother. The Mother commenced this proceeding on August 23, 2017 by Order to Show Cause seeking an Order directing the Child’s return to the Dominican Republic.

Supreme Court found that the Dominican Republic was the child’s habitual residence under the analysis established by Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005) as follows: “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.”

Based upon the testimony the court concluded that, the Dominican Republic was the Child’s habitual residence. Although the Child enjoyed frequent visits to New York where he stayed in the home of the Father’s parents, the majority of his life was spent in the Dominican Republic. It was where his home was, where he attended preschool, where he attended church and where his medical doctors were. There is a distinction to be made between a child who goes somewhere for a temporary duration and a child permanently moving to a new location. A Child who goes somewhere for a temporary duration, such as summer camp, is not considered to have acquired a new habitual residence because “he already has an established habitual residence elsewhere and his absence from it—even from an entire summer—is not indication that he means to abandon it.” Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (quoting Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). There was no evidence that the Child unequivocally acclimated to a location other than the Dominican Republic so as to allow the Court to disregard the intent of the parties. The fact that Child may have acclimated to the United States from the time he was removed on November 30, 2016 until now is not the acclimation intended under this habitual resident analysis: The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. If we were to determine that by removing Thomas from his habitual residence without Mr. Friedrich’s knowledge or consent Ms. Friedrich ‘altered’ Thomas’s habitual residence, we would render the Convention meaningless.” (Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) Supreme Court also found that the Mother had rights of custody at the time the Father and Child left the country and she was exercising her custody rights when the Child was removed. It found that the Mother had met her burden and established by a preponderance of the evidence that the Child was wrongfully removed from his place of habitual residence.

Supreme Court noted that with regard to the grave risk of harm defense the parent opposing the Child’s return must show that the risk to the child is grave, not just serious, and the harm must be more than a potential harm. There must be a direct threat to the Child upon his return to the Dominican Republic in order for this exception to apply. The Court considered the testimony of the Father and the Paternal Grandmother regarding allegations that the Mother abused or neglected the Child and that the Dominican Republic authorities did not satisfactorily address these allegations.
The Father presented photographs of the Child depicting unclean fingernails, an ear infection, mosquito bites, scabbing, cuts, burns and rashes. The Father testified that was the condition the Child was in when he returned from the Mother’s care in 2016. The Father testified that he went to court representatives with the Child, to the police and to child protective services but that no assistance was provided to him. The Father did not provide any records of said reports. On cross examination, the Father testified that the child is considered to be hypersensitive to mosquito bites and that the scars on his body were caused by scratching scabies. He testified that the Child had only one ear infection and although he did  not know with certainty what caused it, he concluded it was the Mother’s fault. The Child’s medical records were reviewed and the Father testified that the pediatrician’s records stated that the Child was regularly brought to his office as a healthy child who was at times afflicted by allergies to insect bites. There was no mention of any burns or any child abuse. The Father testified that since November, 2017, the Child cried, screamed and begged the Father to not make him see the Mother before the Mother’s parenting time. He testified that the Child returned from visits with the Mother angry and sad. The Father also testified that he did not believe the court in the Dominican Republic did or would do anything about his concerns. However, the Father offered no credible evidence that the courts failed to act on a legitimate threat to safety of the Child. He offered no basis for this Court to conclude that the Dominican Republic authorities had not and will not act in the best interests of the Child.

The Father offered the testimony of an expert in the field of forensic evaluations and children’s mental health who never interviewed or observed the Mother. She concluded that the Child was suffering trauma due to the relationship with the Mother but testified that the cause of that trauma could not be clinically ascertained. On cross examination, the witness testified that the trauma could be because the Child was used to being with both of his parents, or it could be because he did not see the Mother, or it could be some other reason. The Court was not convinced that the Child’s reaction to the mention of the Mother was because of abuse or neglect at the hands of the Mother. The expert agreed on cross examination that while she believed the Child’s trauma related to the Mother, it could be because of the trauma of the removal or some other reason. 

The Court  found that the Child’s comfort in his current environment was not a basis for the Child to remain in the United States. Whatever re-adjustment period the Child may have to undergo in the Dominican Republic is not considered a “grave harm” under the Convention. It is well established that the “harm” set forth in the grave harm exception must be “greater than would normally be expected on taking a child away from one parent and passing him to another.” Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017); Nunez–Escudero, 58 F.3d 374 (8th Cir. 1995).

The Court held that the Father had not established, by clear and convincing evidence, that the Child will be subjected to a grave risk of harm if he returned to the Dominican Republic or any other affirmative defense.

Done v Pichardo, 2018 WL 1930081(N.D. Georgia, 2018) [Dominican Republic] [Rights of Access] [Petition denied]

In Done v Pichardo, 2018 WL 1930081(N.D. Georgia, 2018) Petitioner, Maireni Cabral Done, and Respondent, Noemi Antonia Matos Pichardo, had two minor children while living in the Dominican Republic: L.M., who was born in 2006, and J.M., who was born in 2012. Petitioner was listed as the Children’s biological father on their birth certificates.  In 2016, Respondent decided to move to the United States and to take the Children with her. Before they left, on April 29, 2016, the Parties entered into a private agreement regarding custody and visitation in which they agreed that the Children would live with Respondent in the United States, while Petitioner would have visitation rights during summers and Christmas. In May 2016, Respondent and the Children moved to Lawrenceville, Georgia, where they resided.

          On February 22, 2018, Petitioner filed an action pursuant to the Hague Convention and ICARA, requesting that the Court enter a final judgment securing his rights of access to the children.  The district court observed that the Convention also protects a parents’ “rights of access”–or, colloquially, their visitation rights. 22 U.S.C. § 9002(7). Specifically, § 9003(b) provides: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.

         It noted that Courts are divided on whether ICARA confers jurisdiction upon federal courts to hear access claims. According to the Fourth Circuit, it does not. Cantor v. Cohen, 442. F.3d 196 (4th Cir. 2006). Most pertinent to this case, the Fourth Circuit found persuasive “the long established precedent that federal courts are courts of limited jurisdiction and generally abstain from hearing child custody matters.”

In contrast the Second Circuit has held that ICARA does create a federal cause of action to secure parents’ exercise of their visitation rights. Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013). Ozaltin involved a father who sought the return of his children to Turkey from their mother’s care in the United States, as well as an order enforcing the visitation rights granted to him by a Turkish family court. On appeal, the Second Circuit concluded that the district court had jurisdiction under § 9003(b) to consider the father’s access claims and that the mother had to comply with the Turkish court’s visitation order. In reaching this conclusion, the court criticized the Fourth Circuit’s reasoning in Cantor, admonishing that Article 21 states that efforts to secure rights of access “may” be initiated through an application to the Central Authority, not that they “may only” be pursued that way. Id. at 373; see also id. (reading Article 29 to mean that applying to the State Department is a nonexclusive remedy for enforcing access rights). Thus, the Second Circuit concluded, “even though not required under Article 21, federal law in the United States provides an avenue for aggrieved parties to seek judicial relief directly in a federal district court or an appropriate state court.”

The district court found that the Second Circuit held, at most, that a right of access is judicially enforceable under the Convention and ICARA and includes, as a general matter, enforcement of visitation orders from foreign courts. In other words, the Second Circuit found that federal courts have jurisdiction to consider and, where appropriate, give effect to orders entered in foreign states regarding a parent’s rights of access. And it is there that this case fundamentally differs. Petitioner had no order from a Dominican Republic court granting him parenting time. Instead, Petitioner and Respondent entered into a private agreement regarding custody and visitation that both Parties agreed was unenforceable under the laws of the Dominican Republic.

          The Court found the Fourth Circuit’s decision in Cantor to be more persuasive. There, much of the court’s reasoning focused on the longstanding presumption that federal courts do not and should not engage in child custody matters. Here, Petitioner was asking the Court to create such rights. As in Cantor, the Court declined to do so. The Court held that absent a valid order from a foreign state, it lacked jurisdiction to establish, in the first instance, the Parties’ respective parental rights. The petition was dismissed without prejudice.

Kim v Ferdinand, 2018 WL 1635795 (E.D. Louisiana, 2018) [Thailand][Necessary Costs and Attorneys fees]

In Kim v Ferdinand, 2018 WL 1635795 (E.D. Louisiana, 2018) Kim petitioned the Court to return her two children to Thailand. The Court concluded that the children’s habitual residence was Thailand and ordered their prompt return. See Soonhee Kim v. Ferdinand, No. CV 17-16180, 2018 WL 721455 (E.D. La. Feb. 6, 2018). Plaintiff filed a motion for attorney’s fees and necessary expenses, requesting $89,310.08 that included court costs, legal fees, and travel costs between Thailand and the United States. Respondent opposed this motion, arguing that Petitioner’s attorney’s fees were excessive and such award is “clearly inappropriate” under 42 U.S.C. § 11607(b)(3).     

           

The district court observed that under the Hague Convention, an award of fees and costs serves two purposes: (1) “to restore the applicant to the financial position he or she would have been in had there been no removal or retention,” and (2) “to deter such removal or retention.” Hague Convention; Text and Legal Analysis, 51 Fed. Reg. 10494–01, 10511 (Mar. 26, 1986) A party seeking an award of attorney’s fees must submit adequate evidence detailing the hours worked and his or her rates. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It is the Respondent’s burden to show that an award of attorney’s fees and costs would be “clearly inappropriate.” Saldivar, 879 F. Supp. 2d at 632.

       Petitioner requested that Respondent pays her $89,310.08 for expenses incurred from bringing this ICARA action. She expended $1,098.50 for court costs; $77,957.77 for legal fees and expenses; and $10,253.81 for travel. Respondent submitted an affidavit declaring negative net worth of $81,914.40. Chief among his liabilities were unsecured loans of $50,000.00 and debt from litigation fees and costs of $52,943.30.

The court used the lodestar method to determine an appropriate attorney’s fees award in Hague Convention cases. Hensley v. Eckhart, 461 U.S. 424, 433 n.7 (1983). Under the lodestar method, the amount of a fees award is calculated by “multiplying the reasonable hourly rate by the number of hours reasonably expended.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 282 (5th Cir. 2008). This is then tested based on an analysis of twelve factors known as the Johnson factors, which was first formulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974).

         In reviewing the Johnson factors the court noted that a reasonable hourly rate is defined as the prevailing market rate, in the relevant legal community, for similar services by attorneys of reasonably comparable skill, experience and reputation. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citation omitted). From the Court’s experience, Petitioner’s attorneys’ rates, ranging from $355.00 to $550.00, were reasonable. According to Petitioner, who was a resident of Thailand and foreign to the U.S. legal system, she hired counsel from Washington, D.C. because she could not locate a lawyer in New Orleans who specialized in Hague Convention cases. Indeed, based on the Court’s knowledge, Hague Convention cases were rarely filed in the Eastern District of Louisiana. The Court found that Petitioner rationally hired an out-of-state law firm for her high stakes case, and her attorney’s rates were reasonable given their specialized practice, skill, experience and reputation.

          Considering the lodestar method and Johnson factors, the Court concluded that Petitioner’s attorney’s fees of $75,963.50 were reasonable. Moreover, this figure was comparable to Respondent’s own litigation fees and costs, which he declared as $52,943.40.4  Adding Petitioner’s attorney’s fees of $75,963.50 to her court costs of $1,098.50 and travel costs of $10,253.81, the Court found that Petitioner should receive $89,310.08.

The Court noted it had discretion to reduce or eliminate Respondent’s obligation to pay an award for Petitioner’s attorney’s fees and costs if such award “would be clearly inappropriate.” Distler, 26 F. Supp. 2d at 729 (quoting 42 U.S.C. § 11607(b)(3)). “A review of the cases applying ICARA’s “clearly inappropriate” caveat reveals that the analysis is highly fact specific and involves an equitable balancing of several factors including financial circumstances.” Among other factors, courts have considered “straitened financial circumstances,” see Rydder, 49 F.3d at 373–74, and a respondent’s responsibility to support his or her children, see Berendsen, 938 F. Supp. at 739, as reasons for reduction of an award for attorney’s fees and costs. The burden is on Respondent to show that an award of attorney’s fees and costs would be clearly inappropriate. See Saldivar, 879 F. Supp. 2d at 632.

The  court found that Respondent’s current financial situation was unclear and indications of financial hardship was partially self-inflicted. In August 2017, Respondent secured a teaching position that paid $35,014.30. Recently,  Respondent quit this job and returned to Thailand with his children. Although Respondent argued that he had no promise of future income, the record indicated that he wass highly educated and had excellent communication and teaching skills. Respondent was capable of attaining employment based on his recent position as a teacher and his university studies in Thailand. The record was not clear about Respondent’s financial income. The Court considered the fact that Respondent was the wrongdoer in this case: he inappropriately retained the children from their Mother without her consent; later, he launched an unfounded smear attack on Petitioner and accused her of child abuse. His actions amassed hefty litigation expenses on both parties.

     

     The Court concluded that Petitioner’s attorney’s fees and costs of $89,310.08 was reasonable. Nonetheless, considering the financial status of both parties and the facts in the case, the Court apportioned this amount between Petitioner and Respondent. It directed that Petitioner should bear two-thirds of her attorney’s fees and costs, for a total of $59,540.05 and  Respondent should bear one-third of Petitioner’s attorney’s fees and costs, for a grand total of $29,770.03.

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.