Kovacic v Harris, 2018 WL 3388333 (D. Maryland, 2018)[Croatia] [Age and Maturity defense] [Petition denied]

In Kovacic v Harris, 2018 WL 3388333 (D. Maryland, 2018) the district court denied the application of Plaintiff Ivica Kovačić for the Return of his Child to Croatia, The Court concluded that while Mrs. Harris was wrongfully retaining N.K. in the United States under the Hague Convention, N.K. had reached an age and degree of maturity that the Court took into account her objections to returning to Croatia and did not order her return.

Plaintiff Ivica Kovačić and Defendant Danijela Harris were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. She was currently fifteen-years-old. Two years after the couple separated, on February 9, 2009, the parties formally dissolved their marriage in the Municipal Court in Sisak. The Municipal Court Judgment entered that day ordered that N.K. “will live with the mother Danijela Kovačić in Sisak...[and] parental care remains shared.”  The Judgment further set a specified schedule for Mr. Kovačić’s visitation with N.K., including every other weekend while N.K. was in school, “the first half of all winter, spring and summer school holidays, other holidays alternately, and according to the agreement of parents.”  

In 2015, Mrs. Harris and N.K. decided to travel to the United States to visit Mrs. Harris’ family. Mrs. Harris testified that she had relatives who have been living in the United States for a long time. N.K. was twelve-years-old at the time and needed to obtain a tourist visa. In order to do so, Mr. Kovačić notarized a statement declaring that he gave Mrs. Harris permission to request a tourist visa for their daughter. He further stated that “I also agree that once her visa is issued, my daughter has my permission to spend her winter school vacation, 2015-2016, in the United States of America, in the company of Danijela Kovačić.” On January 7, 2016, Mrs. Harris told Mr. Kovačić that she and N.K. would not be returning to Croatia. Mrs. Harris and N.K. testified that they decided to stay so that N.K. could enroll in school and take English classes. Fourteen days later, on January 21, 2016, Mr. Kovačić filed a Request for Return in Croatia under Article 3 of the Hague Convention.

          

          During the bench trial, N.K., testified that she did not want to return to Croatia with her father. She lived with her mother and stepfather in Elkton, Maryland. She objected to returning to Croatia because most of her family and friends were here in the United States; the friends she had in Croatia have moved to a different city. She also objected to living with her father in Croatia, testifying that he had never been there for her when she needed him, and she was afraid of what he might do after the court proceedings. She did testify that although she was not open to having a relationship with her father right now, she may in the future “if things changed, and he shows that he cares about me and about my decisions.”

          N.K. impressed this Court as an extremely mature fifteen-year-old. She was able to testify in great depth about her relationship with her father. N.K. seemed more mature and measured in her testimony than did her father. She did not attempt to embellish her testimony with respect to any physical reactions of her father. However, she was quite clear in referencing that even in past years “he was never there for me when I needed him.”

          Prior to trial, the Court held a hearing on Plaintiff’s motion for partial summary judgment on his affirmative Hague Convention claim. Plaintiff Kovačić established a prima facie case of wrongful retention. The Court also found Mr. Kovačić had joint custody rights over N.K.

          The Court observed, inter alia, that there is the “age and maturity” exception. This exception provides that a court is not required to order the return of a wrongfully removed or retained child if the court finds that “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, Art. 13. The party objecting to the child’s return must prove that this exception applies by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). A court must exercise discretion when evaluating this exception “because of the potential for undue influence by the person who allegedly wrongfully retained the child.” Trudrung v. Trudrung, 686 F. Supp. 2d 570, 576 (M.D.N.C. Feb. 10, 2010) (quoting Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603, 615 (E.D. Va. 2002)). The Hague Convention does not set an age at which a child is mature enough for the court to take into account his or her objection to being returned. Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339 (D. Md. 2017) Therefore, the inquiry is necessarily a factual determination to be made on a case-by-case basis. See Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016)

          Based on the testimony presented and the Court’s observations of N.K., N.K. attained an age and degree of maturity at which it is appropriate to take account of her objections to returning to Croatia. N.K. was over fifteen-years-old, and less than a year away from the age at which the Hague Convention would no longer apply to her. This Court observed her testify. She displayed a maturity for her age and demonstrated an understanding of the significance of the proceedings. She also spoke articulately considering English was not her first language and presented herself as well-mannered and intelligent. Mrs. Harris testified that since being in the United States, N.K. has made honor roll every grading period. The Court concluded that she had reached an age and degree of maturity for this Court to take account of her views. See Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010)

          The court next pointed out that the district court’s finding that a child has or has not objected is a fact-intensive determination that is based in part on the court’s personal observations of the child. Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016). The Court began by evaluating whether N.K.’s objections to returning to Croatia appeared to be the product of Mrs. Harris’ undue influence. See de Silva, 481 F.3d at 1286 (explaining that a “child’s wishes” should not be considered if the court finds that the child’s desires are the “product of undue influence”). Mr. Kovačić testified that N.K. had been “brain washed” by Mrs. Harris. N.K. testified that Mrs. Harris never spoke poorly or otherwise criticized Mr. Kovačić’s role as her father. N.K. testified that she would be open to having a relationship with her father in the future “if things changed, and he showed that he cared about [her] and [her] decisions.” On the other hand, N.K. testified that her father openly spoke poorly about her mother and the United States. Mr. Kovačić acknowledged in September of 2017 that Mrs. Harris encouraged N.K.’s relationship with her father.

The reasons behind N.K.’s objection to returning to Croatia demonstrated that she was not objecting merely because she had been in the United States with her mother since December of 2015. N.K.’s reasons for not wanting to return were similar to those in Vasconcelos v. Batista, 512 F. App’x 403, 408 (5th Cir. 2013), where the Fifth Circuit affirmed the district court’s application of the age and maturity exception when the child (1) expressed she did not want to visit her father when he was in the United States, (2) had particularized ties to the United States including that she had done well in school, was involved in extracurricular activities, and had been receiving treatment for epilepsy, and (3) had virtually no ties to Brazil and “barely any knowledge” of her father who had not communicated with her since she left Brazil.

          The Court found that N.K. was not objecting to returning to Croatia merely because of the length of time she had spent with her mother in the United States. She was objecting because she has had a difficult relationship with her father and had very few connections left in Croatia. The Court concluded that N.K. was of the “age and degree of maturity at which it is appropriate to take account of [her] views” and she “objects to being returned.” Hague Convention, Art. 13. Therefore, under the Hague Convention, although Mrs. Harris was wrongfully retaining N.K. in the United States, this Court was not bound to order her return to Croatia.

         

         The Court acknowledged its discretion to order the return of N.K. despite finding that the age and maturity exception applies and declined to do so.

Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018)[Israel] [Now settled defense] [Petition denied]

In Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018) the district court denied the Petition of Adis Marsha Amdamaskal (“Adis”) who sought the return of his children, M. and L., to Israel.

.         Adis immigrated to Israel from Ethiopia in 1991.  They were married in Ethiopia in 2002. After the marriage, Selamawit immigrated to Israel.  M. was born in 2006 while Adis and Selamawit were traveling in the United States. The family returned to Israel when M. was six months old. L. was born in Israel in 2011.  In March 2013, Adis was convicted of assaulting Selamawit and one of the children. Adis was sentenced to a conditional sentence of six months, with the condition being that he not be convicted of additional assaults.  Selamawit alleged that Adis regularly verbally and physically abused her during their marriage. Selamawit testified that she brought her children to the United States to protect them from Adis.  With Adis’s knowledge and permission, Selamawit and the children left Israel in January 2016 to visit family in Ethiopia. They were supposed to return to Israel on February 4, 2016, but instead Selamawit brought the children to the United States without the knowledge or permission of Adis. A few days after Selamawit traveled to the United States, Adis’s sister contacted one of Selamawit’s sisters in Ethiopia. Selamawit’s sister informed Adis’s sister that Selamawit had left for the United States.  Adis testified that Selamawit’s family thought that Selamawit had returned to Israel and that they did not tell him that she had departed for the United States. Documents in the record made it clear that Adis knew almost immediately that Selamawit and the children were in the United States. The Court therefore credited the written statement of Selamawit’s sister, that she told Adis’s sister that Selamawit went to the United States. On February 4, 2016—the same day that Selamawit and the children were supposed to return to Israel—Adis filed a complaint with the Israeli police concerning his missing wife and children. Ten days later, on February 14, 2016, Adis, through counsel, sent a letter and supporting materials to the Israeli Ministry of Justice entitled “Re: Application to Institute Proceedings Under The Hague Convention—Abduction of Minors.”  On February 29, 2016, Adis obtained an ex parte order from an Israeli court prohibiting the removal of the children from Israel. Adis also obtained a stay of leave order from the court dated March 1, 2016, apparently also prohibiting the children’s removal. Adis knew almost immediately that Selamawit and the children were in the United States. At least as early as March 2016, Adis knew that they were in Minnesota. And as of May 30, 2016, Adis knew that the children were probably living in St. Paul, where Selamawit’s sister and brother lived. Adis testified that he did not learn of his children’s whereabouts until sometime after March 2017. The Court did not credit this testimony. On March 7, 2017, Selamawit initiated divorce proceedings in Ramsey County District Court by serving Adis with a summons and petition for dissolution of marriage.  Adis initially filed what appeared to be a pro se response asking that the case be dismissed and citing, among other things, his Hague Convention application. In the meantime, the State Department formally notified the court that Adis had applied for the children’s return under the Hague Convention. The State Department explained that, as a result, the state court should refrain from making any custody determinations until the Hague Convention issue was resolved.. The state court eventually gave Adis until September 18, 2017 to initiate court proceedings under the Hague Convention.  Adis did not meet the September 18 deadline. But on or about October 17, 2017, Adis commenced this action in state court by serving Selamawit with a verified petition. Selamawit removed the proceeding to the district Court on October 31, 2017.

There was no dispute that Adis met his burden of proving that the children habitually resided in Israel, that their removal to the United States on or about February 4, 2016, was in breach of his custody rights, and that he was exercising those rights at the time of removal. Accordingly, the burden shifted to Selamawit to establish an affirmative defense to the children’s return. Custodio, 842 F.3d at 1089; 22 U.S.C. § 9003(e)(2).  Slamawit first raised the “well settled” defense—that is, she asserted that Adis commenced these proceedings more than one year after the wrongful removal and the children are now settled in their new environment. Lozano, 134 S. Ct. at 1229. The district court found that she had proven the elements of the well-settled defense. The Hague Convention permits a court to deny a petition for a child’s return if the petition was filed more than one year after the wrongful removal and the child is settled in her new environment. The one-year period is not a statute of limitations; instead, its expiration “opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement.” Lozano, 134 S. Ct. at 1234–35. For that reason, it is not subject to equitable tolling. Id. at 1236. Adis did not dispute that he did not commence these proceedings until more than one year had passed from February 4, 2016, the date of the wrongful removal. See Wojcik v. Wojcik, 959 F. Supp. 413, 418–20 (E.D. Mich. 1997) (submitting a Hague Convention application to the State Department does not stop the one-year clock). The only question, then, was whether the children are settled in the United States. In this context, “settled” means that “the child has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014). In determining whether a child is settled, courts consider such factors as: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.

All of these factors indicated that M. and L. were settled in their new environment. At the time Adis filed the petition, the children were 11 and 6 years old, which is old enough to form relationships and emotional ties to the community. They had also been here for over 20 months—over a fourth of L.’s life—and had lived with extended family in the same housing complex since their arrival. Selamawit took immediate steps to enroll the children in school—and it was clear, from the specific and affectionate testimony of the school official, that they were fully integrated into and thriving in their classrooms. They were fluent in English. Through their school and after-school programming, the children had connection to their local religious community. The older child, M., was involved in age-appropriate extracurricular activities. The children were also surrounded by extended family; they not only lived with their uncle and his wife, but they had an aunt and cousins nearby with whom they were close. Finally, Selamawit was legally authorized to work in the United States, had a full-time job, and had applied for asylum; M. was a citizen of the United States. The Court found that Selamawit met her burden of showing that the children were settled in their new environment.

The Court observed that even when a court has found a child to be settled in her new environment, the court retains the equitable discretion to order the child’s return if other factors—including “the need to discourage inequitable conduct”—outweigh the child’s need for stability. Lozano, 134 S. Ct. at 1237 (Alito, J., concurring); see also Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007) (even if the respondent establishes an affirmative defense, the court retains the discretion to return the child if necessary to effectuate the goals of the Hague Convention).  In this case, returning the children to Israel despite their settled status in the United States was not necessary to serve the purposes of the Hague Convention. Although Selamawit did not inform Adis of the children’s location, she did not hide their presence in Minnesota. Instead, she lived openly with relatives—relatives whose identities and whose presence in the United States were known to Adis. She also enrolled the children in school, obtained medical care for them, and applied for asylum.

Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) [Croatia] [Well-settled exception]

In Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) Plaintiff Ivica Kovačić (“Plaintiff” or “Kovačić”) sought the return of his daughter, “N.K.,” to Croatia. Plaintiff Ivica Kovačić and Defendant Danijela Harris (formerly Kovačić) were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. Six years later, on February 9, 2009, the parties dissolved their marriage. In a Judgment dated that same day, the Municipal Court of Sisak, Croatia ordered that N.K. would “live with the mother Danijela Kovačić in Sisak...[and that p]arental care remain[ed] shared.”  The Croatian Court further ordered that Kovačić would have specified visitation time with N.K., pursuant to a schedule set out in paragraph III of the Judgment. Harris testified that after the divorce, Kovačić saw N.K. almost every other weekend. Two years later, Plaintiff moved to amend the Croatian Court’s Judgment, asserting that due to a change in circumstances N.K. should be entrusted to his care. The court declined to do so, noting a “problem of communication” between the parties “about their shared care of the minor child,” but finding that there was not a sufficient change in circumstances warranting an amended judgment.  In December of 2015, Harris departed Croatia and brought N.K. to the United States to see Harris’ sick aunt and grandmother. Kovačić had given Harris permission to apply for a tourist visa for N.K. and also agreed that N.K. could spend her winter school vacation from December of 2015 to January of 2016 in the United States. On January 7, 2016, however, Harris made the decision to stay in the United States. On January 6, 2017, Plaintiff filed suit under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking the return of his daughter, “N.K.,” to her “habitual residence” in Croatia, On September 7, 2017, this Court approved the parties’ voluntary stipulation of dismissal on the ground that they had “agreed to settle this matter and ha[d] fully executed a settlement agreement.” Six months later, however, Plaintiff Kovačić filed a Motion for Relief from Judgment, asserting that Defendant had not honored commitments to intermittently send N.K. to Croatia. The Court granted Plaintiff’s Motion, and this case was scheduled for a two-day bench trial.

Plaintiff filed, among other things, a Motion in Limine to Admit Official Croatian Government Declarations, and a Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense.

The Court granted Plaintiff’s Motion in Limine to admit two declarations of Suncica Loncar, Senior Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy of the Republic of Croatia. He asserted that the declarations were instructive on the issue of whether Plaintiff had “rights of custody. The district court pointed out that it had  previously noted that “[i]t is well-established that the Hague Convention envisions that proof of foreign law may be established via ‘certificates or affidavits,’ Central Authority opinions, letters, and expert testimony.” Kovacic, 2017 WL 2719362, at *4 (citing Pérez-Vera Report, note 19; Whallon v. Lynn, 230 F.3d 450, 458 (1st Cir. 2000); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004)). Further, Federal Rule of Evidence 44.1 provides that “[i]n determining foreign law, the court may consider any relevant material or source, including testimony.” Fed. R. Civ. P. 44.1.

Plaintiff Kovačić also moved for partial summary judgment on Defendant Harris’ third affirmative defense which invoked the “well-settled” exception in Article 12 of the Hague Convention, asserting that it was undisputed that he filed suit less than one year after he learned of the wrongful retention. He asserted that Defendant stated in a Response to an Interrogatory that she did not make the decision to stay in the United States until January 7, 2016, and he filed this action on January 6, 2017. Defendant did not dispute that Plaintiff filed the action within one year of the wrongful retention. Rather, she argued that “it has been an additional year and a half since the filing, and N.K. is settled and has built a life in the United States.” The district court held that the only relevant time period for considering whether the well-settled exception applies, is the time between the alleged wrongful removal and retention and the filing of the action. Because Plaintiff filed this action within one year of learning that Harris intended to keep N.K. in the United States, the well-settled exception did not apply. Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense was granted.

Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018)[Mexico][Habitual Residence][Petition denied]

In Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018) the district court denied Plaintiff Gloria Medina’s petition for return of child to Mexico. The district court found that bBeginning around 2007, Medina and Brandon Villasanti dated and lived together in Dallas, Texas, United States. In September 2009, Medina gave birth to a child (“SBV”) fathered by Villasanti. Eventually, Medina and Villasanti’s relationship ended. Medina and SBV moved to San Luis Potosi, Mexico while Villasanti remained in Dallas. For several years, Villasanti would annually visit Medina and SBV in San Luis Potosi. During the summer of 2015, Medina’s and Villasanti’s stories diverged. Medina alleged that Villasanti requested Medina’s permission to take SBV to the United States merely for a limited vacation. To memorialize this agreement, Villasanti sought Medina’s signature on a contract written in English. But because Medina only understood Spanish, Villasanti orally translated the agreement to Spanish for her. Medina maintained that Villasanti’s translation of the agreement matched his initial request: to take SBV to the United States for a brief vacation. Thus, Medina signed the agreement. Villasanti claimed instead that he clearly requested and received Medina’s permission to take SBV to the United States indefinitely. In support, Villasanti produced the agreement at issue. Signed by Villasanti on July 31, 2015, notarized on the same day, and signed by Medina a day later, the agreement indicated that Medina granted permission for SBV to travel and live with Villasanti and that Medina trusts Villasanti to take care of SBV while she is living with him. Villasanti further claimed that his translation of the agreement to Spanish accurately reflected its terms, including that it would allow him to retain SBV without any temporal limit. Based on the agreement, Villasanti took SBV to Dallas. According to Medina, Villasanti began wrongfully retaining SBV in late August of 2015 when he did not return the child to Mexico. As a result, Medina filed the petition for return of SBV. The Court found Villasanti to be the more credible witness and, in all cases where Medina’s testimony conflicted with Villasanti’s testimony, the Court accepted Villasanti’s account.


The district court noted that Medina’s petition was  one for wrongful retention. The threshold inquiry in any wrongful retention case is determining which country is the child’s habitual residence. The Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie, 690 F.3d at 310. The inquiry balances the interests of the child with the intentions of the parents.  A court’s “inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” When determining a child’s country of habitual residence, analysis focuses on the “parents’ shared intent or settled purpose regarding their child’s residence.. The inquiry balances the interest of the child with the parents’ intentions, but gives greater weight to the parents’ subjective intentions when the child is relatively young and incapable of deciding residency. Absent shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” Mozes, 239 F.3d at 1082. “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,]...most courts will find no change in habitual residence.’ 

The Court determined that SBV’s habitual residence at all times relevant to Medina’s petition had been the United States. Prior to August 2015, SBV’s habitual residence was Mexico: the fact that SBV resided there with Medina for several years with Villasanti making annual visits exhibits the parents’ shared intent for the child to remain in Mexico. But, when Villasanti took SBV to the United States in August 2015, that changed. Although the parties disputed the length of time that Medina allowed Villasanti to take SBV to the United States, the Court credited Villasanti’s testimony on this matter. Villasanti produced the written agreement at issue, which did not include any temporal limit. Where a written agreement between the parents determines the child’s habitual residence it controls. As a result, the parties evinced a shared intent in August 2015 to change SBV’s habitual residence to United States. Thus, because SBV habitually resided in the United States at the time Medina filed the  petition and Medina consented to SBV’s residing there indefinitely, Villasanti had not wrongfully retained SBV.

The district court also determined first, that even assuming that Medina has made a prima facie case for wrongful retention, Villasanti  met his burden under ICARA to prevent SBV’s return to Mexico. Villasanti established by clear and convincing evidence that there was a grave risk that SBV’s return to San Luis Potosi would expose her to physical harm. In support, Villasanti produced photographs of SBV’s arms taken mere months after her arrival in the United States in August 2015. The images demonstrated that SBV was ravaged by bugs while residing in Mexico over the previous several years.  Villasanti testified that pickup trucks full of civilians armed with automatic weapons openly drive on the public streets of Medina’s village. Villasanti also testified that SBV was malnourished when he picked her up in Mexico. The Court credited Villasanti’s photographs and testimony as sufficiently establishing a grave risk of physical harm to SBV if returned to Mexico.

It also found that Villasanti also established by a preponderance of the evidence that Medina consented to Villasanti’s retention of SBV in the United States. 

Even if Medina did not consent to the retention, it found that SBV was settled in her new environment. Longer than a year elapsed from the date of the alleged wrongful retention and the filing of the and Villasanti testified at trial that SBV (1) had been enrolled in school since her arrival in the United States, (2) lived in a home with Villasanti and her grandparents, and (3) repeatedly said she did not want to return to Mexico when asked. Collectively, this testimony established by a preponderance of the evidence that SBV was settled in her new environment.
Signed June 19, 2018.

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.