Quinn v. Quin, 2019 WL 1460928, (W.D. Missouri, 2019) [Japan] [Federal & State Judicial Remedies] [Bifurcation of trial] [Discovery]

          In Quinn v. Quin, 2019 WL 1460928, (W.D. Missouri, 2019) on February 2, 2019, Petitioner filed her Verified Complaint for the return of her son L.R.Q. Petitioner and Respondent were the biological parents of the Child, who was born in Japan in April 2014. Petitioner resided in Tokyo, Japan. Respondent resided in Mount Vernon, Missouri. Petitioner and the Child came to the United States to visit Respondent in August 2018. On October 15, 2018, Petitioner returned to Japan without the Child for a medical procedure. At that time, Respondent agreed to send the Child back to Japan on November 6, 2018; however, Respondent failed to return the Child to Petitioner in Japan on November 6, 2018, and at any point thereafter.

          On February 28, 2019, Respondent filed his Answer and Affirmative Defenses to the Verified Complaint.  Respondent alleged in his Answer and Affirmative Defenses that if the Child were sent back to Japan at this time, it would “create a grave risk that would expose [the Child] to physical or psychological harm or otherwise place the child in an intolerable situation due to Petitioner’s history of abuse and instability” and “Petitioner’s extensive history and frequency of mental illness, and her need for ongoing treatment.”

          Petitioner presented evidence through Petitioner’s medical records, Petitioner’s testimony, and Respondent’s testimony that Petitioner and Respondent were married in Japan on September 5, 2014. Respondent had recently indicated to Petitioner that he intended to file for divorce. Petitioner and Respondent lived together in Japan from September 2013 through May 2018; thereafter, Respondent returned to the United States. Petitioner and Respondent were the biological parents of the Child, who was born in Japan in April 2014. Petitioner currently resided in Tokyo, Japan. Respondent currently resided in Mount Vernon, Missouri. Petitioner and the Child came to the United States to visit Respondent in August 2018. On October 15, 2018, Petitioner returned to Japan without the Child to seek medical treatment. At that time, Respondent agreed to send the Child back to Japan; however, Respondent failed to return the Child to Petitioner in Japan. As to Respondent’s Affirmative Defenses, evidence was presented through Petitioner’s medical records, Petitioner’s testimony, and Respondent’s testimony that  beginning in April of 2015, and to as recently as November 24, 2017, Petitioner was hospitalized voluntarily and involuntarily to inpatient psychiatric facilities during the following dates: April 6, 2015 to April 13, 2015,  April 24, 2015 to June 11, 2015,  July 24, 2015 to August 6, 2015, August 20, 2015 to September 4, 2015, October 23, 2015 to October 26, 2015, July 18, 2016 to August 4, 2016, August 12, 2016 to August 31, 2016, September 12, 2016 to November 4, 2016, and from October 21, 2017 to November 24, 2017 she was involuntarily admitted for 34 days after Petitioner “was talking to herself,” and during an argument with her husband, Petitioner threw “food and backpacks, etc. at her husband and started banging on her own chest...and called the police.” Petitioner’s mother advised police to “admit her to the hospital...I am afraid of her.” Upon hospitalization, Petitioner was kept in isolation for the first 16 days, kept in waist restraints for the first 9 days, and kept in both waist and arm restraints for the first 4 days.

          In response to Respondent’s Affirmative Defenses, Petitioner testified that her current treating physician was Dr. Nakanishi. Dr. Nakanishi was aware of Petitioner’s bipolar disorder and history of hospitalizations. Petitioner began seeing Dr. Nakanishi in January 2018, and she had appointments with Dr. Nakanishi every three weeks. Dr. Nakanishi provided a note, dated February 27, 2019, that Petitioner can care for her child despite her bipolar diagnosis.

          The Court Pointed out that to succeed on a “grave risk” defense, Respondent must prove by clear and convincing evidence that “there is a grave risk that [the Child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, art. 13(b). “The gravity of a risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes.” Acosta v. Acosta, 725 F.3d 868, 876 (8th Cir. 2013). Article 13(b) recognizes two types of grave risk: (1) cases where a child is sent to a war zone or zone of famine or disease; or (2) cases involving serious abuse or neglect. Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 2011). The party seeking to invoke the exception must show that the grave risk of harm is more than what would normally be expected when taking a child away from a parent and giving the child to another parent. Nunez v. Escudero v. Tice-Menely, 58 F.3d 374, 377 (8th Cir. 1995). To ensure that the child is adequately protected, the Article 13b inquiry must encompass some evaluation of the people and circumstances awaiting that child in the country of his habitual residence. See also Currier v. Currier, 845 F. Supp. 916, 923 (D.N.H. Mar. 16, 1994) (to determine grave risk, the court must evaluate the surroundings of the habitual residence and basic personal qualities of those located there).

          The Court indicated that it had minimal medical records concerning Petitioner’s visits with Dr. Nakanishi or any medical records after Petitioner’s discharge from the NTT Medical Center in November 2017. The Court was missing the crucial medical records of Petitioner for the most recent eighteen months. Before the Court can determine whether Petitioner presented a grave risk of danger to the Child, the Court had to review Petitioner’s medical records after her discharge from the NTT Medical Center to present date. The Hague Convention contemplates resolution of Hague Convention petitions within six weeks of their filing. See Convention art. 11). Here, while the Court understood the expeditious nature of Hague Convention petitions, the Court had to review Petitioner’s recent medical history to determine if the grave risk exception applied.

          The Court found that good cause existed to extend the determination on the merits of this matter. After careful consideration of the evidence, the Court required Petitioner’s mental health records beginning January 2018 through present date before the Court could determine whether the grave risk exception would apply to prevent the Child’s return to his habitual residence. Accordingly, Respondent’s request to bifurcate the trial and produce additional evidence was granted and Petitioner was ordered to provide the Court and Respondent with her medical records, or a sufficient summary, from November 2017 to present date;

Capalungan v Lee, 2019 WL 1330711(S.D. Ohio, 2019)[Australia] [Federal & State Judicial Remedies] [Summary Judgment] [Motion denied]

          In Capalungan v Lee, 2019 WL 1330711(S.D. Ohio, 2019) Petitioner and Respondent were the biological parents of EZL who was born on August 31, 2012 in the Philippines where he resided with Petitioner until January 22, 2016, when they moved to Australia. From January 22, 2016 to February 22, 2017, EZL lived with Petitioner in Australia. Since prior to EZL’s birth, Respondent has resided in the United States. During his time in Australia, EZL attended 3 Apple’s Childcare and Kindergarten five days per week from 7:30 a.m. until 5:00 p.m. EZL also attended church and Sunday school, visited museums and amusements parks, went to the movies, and enrolled in swimming classes. Petitioner and EZL lived with Petitioner’s younger sister and niece in Melbourne, Australia. In early 2017, the parties began discussing Petitioner’s career plans. Petitioner was working to complete her training for a job as a nurse care manager.). The parties discussed Petitioner and EZL traveling to the United States so that Respondent could care for EZL and apply for his permanent residency while Petitioner returned to Australia to complete her training. Petitioner and EZL traveled to the United States on or around February 22, 2017. Shortly thereafter, the Petitioner returned to Australia to complete her training program. The parties’ relationship then deteriorated. In December 2017, Petitioner traveled to the United States to take custody of EZL and return to Australia. She requested that Respondent provide her with EZL’s passport so that she could return to Australia with him. Respondent refused, and Petitioner returned to Australia without EZL. (Id.). The parties’ relationship deteriorated even further leading to the filing of this action.

          Respondent moved for summary judgment on three different grounds: (1) there was no wrongful retention because the minor child’s habitual residence was and is the United States; (2) the Petition was filed more than one year after the alleged wrongful retention, and EZL was now settled in his new environment; and (3) Petitioner consented to EZL living in the United States with Respondent.

          The Court observed that habitual residence marks the place where a person customarily lives.” Taglieri, 907 F.3d at 407. This is a question of fact. Id. at 408 (collecting cases). When determining a child’s habitual residence, the Sixth Circuit applies one of two standards depending on the facts of the case. “The primary approach looks to the place in which the child has become ‘acclimatized.’ (quoting Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017)). “The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to ‘shared parental intent.’” Taglieri, 907 F.3d at 407. *3 When applying the acclimatization standard: the question is whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective. District courts ask these sorts of questions in determining a child’s acclimatization: whether the child participated in academic activities, social engagements, sports programs and excursions, and whether the child formed meaningful connections with the country’s people and places. Taglieri, 907 F.3d at 408 (internal citations, alterations, and quotation marks omitted). This analysis is guided by five principles: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s past experience. Any future plans that the parents may have are irrelevant to our inquiry. Fourth, a person can have only one habitual residence. Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007).

          To determine EZL’s habitual residence, the Court must first determine when the alleged wrongful retention began. See McKie v. Jude, No. CIV.A. 10-103-DLB, 2011 WL 53058, at *6 (E.D. Ky. Jan. 7, 2011) When determining the date the alleged wrongful retention began, “courts look to the last date upon which it is undisputed that the child was in the new country with both parents’ consent.” Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 1046893, at *3 (S.D. Ohio Mar. 5, 2019). “Specifically, courts look to the date when the non-abducting parent was truly on notice that the abducting parent was not going to return the child.” The parties disputed when the alleged wrongful retention occurred. There was a genuine issue of material fact as to when the wrongful retention began. The Court therefore had to determine EZL’s habitual residence in the time period prior to the alleged wrongful retention. Petitioner has presented evidence that EZL resided in Australia for more than a year prior to arriving in the United States, from January 2016 to February 2017. During that time, EZL attended daycare and kindergarten five days per week, attended church, visited museums and amusements parks, went to the movies, enrolled in swimming classes, and visited extended family. Further, Petitioner and EZL lived with Petitioner’s younger sister and niece in Melbourne, Australia, and EZL developed a close relationship with his aunt and cousin with whom he participated in a variety of extracurricular activities. From a child’s perspective, these are hallmarks of a habitual residence. See Taglieri, 907 F.3d at 408. The question was whether EZL’s habitual residence changed when he resided in the United States from February 2017 to the date of the alleged wrongful retention in January 2018.² See Robert, 507 F.3d at 989 (“Only a change in geography and the passage of time may combine to establish a new habitual residence.” Petitioner offered evidence that EZL developed strong ties to Australia in 2016 and 2017 prior to his arrival in the United States. In Petitioner’s view, Australia was EZL’s habitual residence, and his temporary visit to the United States did nothing to alter this fact. In response, Respondent offered evidence that, after EZL arrived in the United States in February 2017, he attended school and participated in extracurricular activities prior to the alleged wrongful retention. According to Respondent this demonstrated that EZL was acclimatized to the United States at the time of the alleged wrongful retention, and the United States was, therefore, EZL’s habitual residence. Based on the available evidence, there was a genuine issue of material fact as to whether EZL’s habitual residence was Australia or the United States prior to the alleged wrongful retention in January 2018. The Court, therefore, denied summary judgment as to this issue.

          Respondent argued that Petitioner did not commence these proceedings until more than a year after the alleged wrongful retention and that EZL is now well-settled in the United States.

“Article 12 establishes a one-year limitations period circumscribing the power of a petitioned court. If the petitioner initiated proceedings within a year of the child being wrongfully removed or retained, the court must order the child’s return in the absence of some other exception or defense.” Blanc v. Morgan, 721 F. Supp. 2d 749, 762 (W.D. Tenn. 2010). “If a year or more elapsed between the wrongful removal or retention and petitioner’s initiation of proceedings, the court need not order the child’s return if the respondent establishes by a preponderance of the evidence that the child is ‘now settled in its new environment.’” Id. (quoting Hague Convention, art. 12). Because there was a genuine issue of material fact as to the date of the alleged wrongful retention, there was a genuine issue of material fact as to whether the well-settled defense was potentially applicable. Petitioner commenced these proceedings on October 23, 2018. If, as Petitioner argued, the wrongful retention occurred on January 5, 2018, the Petition was filed well within Article 12’s one-year time frame, and the well-settled defense would not apply. See Hague Convention, art. 12. If, as Respondent argued, the wrongful retention occurred in July 2017, the Petition was not filed within Article 12’s one-year time frame, and the well-settled defense could potentially apply. The Court therefore denied summary judgment as to this issue.

          Respondent also contended that Petitioner consented or acquiesced to EZL remaining in the United States. He emphasized that Petitioner voluntarily brought EZL to the United States and executed legal documents allowing the child to stay in the United States.  “Article 13(a) of the Hague Convention provides a statutory defense against the child being returned to the country of habitual residence if defendant proves by a preponderance of the evidence that plaintiff consented to or subsequently acquiesced in the child’s removal or retention.” Guevara v. Soto, 180 F. Supp. 3d 517, 528 (E.D. Tenn. 2016). “‘Consent’ and ‘acquiescence’ are not defined in the Hague Convention,” id. (citing Friedrich, 78 F.3d at 1069 n.11), and courts treat them as distinct concepts,. “The consent defense involves the petitioner’s conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005) (citing Gonzalez-Caballero v. Mena, 251 F.3d 789, 794 (9th Cir. 2001)). “[A]acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich, 78 F.3d at 1070. “Unlike acquiescence, a petitioner’s informal statements or conduct can manifest consent.” Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659, at *8 (E.D. Mich. Sept. 14, 2018) (citing Baxter, 423 F.3d at 371).

          Respondent was not entitled to summary judgment on either defense. As an initial matter, the Court noted that consent and acquiescence are affirmative defenses on which Respondent bears the burden of proof. Respondent cited no authority or evidence in support of his consent or acquiescence defenses. The Court reviewed the record and concluded that there is a genuine issue of material fact as to Respondent’s consent and acquiescence defenses. Similarly, there was a genuine issue of material fact as to whether Petitioner acquiesced to Respondent’s alleged wrongful retention of EZL. The Court denied summary judgment as to this issue accordingly.

Quintero v de Loera Barba, 2019 WL 1386556 (W.D. Texas, 2019)[Mexico] [Habitual Residence] [Petition granted]

          In Quintero v de Loera Barba, 2019 WL 1386556 (W.D. Texas, 2019) the court granted the petition of David Pinto Quintero for the return of his four children to Mexico.  

          A few months after getting married in Mexico City, Pinto and de Loera moved to Colorado so Pinto could pursue post-graduate education. While in Colorado, de Loera bore two children, M.A.P.D.L.-1 (now thirteen years old) and A.M.P.D.L. (now ten). Six years later, the family moved to Guadalajara, Mexico, where they had Z.D.P.D.L. (now eight). After fifteen months in Guadalajara, the family moved back to Mexico City. The couple had their fourth child, M.A.P.D.L.-2 (now seven) a year later.

          For the next four years, the family lived alongside Pinto’s parents and other relatives in Mexico City. Though Pinto and de Loera briefly considered relocating to the Pintos’ house in Florida—even using its address to apply for credit cards and to obtain a driver’s license, , and exploring potential schools for their children, see—they ultimately decided not to move, partly due to their children’s relationship with their grandparents, who saw the children multiple times each week and paid for their education.  In October 2015, Pinto and de Loera separated. At the time, they informally agreed to share custody: Pinto would take the kids to school three days a week and would further spend every other weekend with them. Six months later, Pinto filed for divorce. After retaining counsel, consenting to jurisdiction, and agreeing the family would be based in Mexico City, Pinto and de Loera entered into a provisional decree giving primary custody to de Loera, awarding visitation rights to Pinto, and prohibiting either parent from removing the children from Mexico City without the other’s permission. A year into that provisional decree, de Loera decamped with the children to live eleven hours away in Nuevo Vallarta. Pinto went to court to defend his parental rights. When de Loera responded with allegations of abuse, the Mexican judge interviewed each child in camera to test her claims. But none corroborated de Loera’s account, instead describing their father as “nice, good, [and] caring,” noting “they [we]re happy to see him and they would love to stay and sleep at his home,” and adding “that they love him very much and that they do want to see him.” They expressly denied ever being “beaten or told rude words.” In part based on these representations, in November 2017 the Mexican trial court ordered de Loera to return the children to Mexico City. But de Loera refused to comply, and continued to frustrate Pinto’s attempts to visit his children in Nuevo Vallarta. Both Pinto and de Loera appealed.

          While that case was pending, de Loera brought a separate action against Pinto and his parents that accused them of domestic and “economic” violence. A second judge interviewed the children in camera to assess these new allegations. And he found their testimony wholly noncredible: it was based solely on what “their mother told them,” and the youngest child admitted de Loera coached her testimony. The judge rejected all of de Loera’s claims.

          On May 21, 2018, a three-judge panel reversed the November 2017 child custody order. Concluding de Loera caused the children “serious psycho-emotional harm,” the Mexican appellate court awarded Pinto primary custody, limited de Loera to visitation rights, and threatened de Loera with arrest if she did not return the children to Mexico City within twenty days after their school term ended. The appellate court required de Loera to allow Pinto to visit and communicate with his children, and prohibited either parent from removing the children from Mexico without the other’s consent. Despite de Loera’s repeated—and unsuccessful—collateral attacks, that order became final. The next week, armed with the Mexican appellate court’s final order, Pinto traveled to Nuevo Vallarta to visit his children. But he couldn’t find them. School administrators reported they had been missing all week, and the house where they lived had been abandoned. Pinto searched for his children to no avail. On January 30, 2019—eight months after the Mexican appellate court order—Pinto’s cousin thought he spotted de Loera picking up the children at a San Antonio Montessori school. Subsequent investigation confirmed de Loera secreted the children to San Antonio, where they lived in a house held by a corporation controlled by her mother. On February 19, 2019, considering the “substantial risk that upon being notified of this proceeding, [de Loera] may remove the Children from the Court’s Jurisdiction,” Chief Judge Garcia granted Pinto’s ex parte application for a temporary restraining order (TRO) and for a writ of execution to take physical custody of the children. The next day—510 days since he last saw them—Pinto was reunited with his four children.

          The Court denied de Loera’s successive requests to appoint an attorney or a guardian ad litem for the children. Children do not generally participate in Hague Convention proceedings, and this case lacked the exceptional circumstances where a guardian ad litem would assist the court, particularly given this case’s expedited posture—a posture further accelerated by de Loera’s refusal to extend the TRO. See Chafin v. Chafin, 568 U.S. 165, 179 (2013) (“[C]ourts can and should take steps to decide these [Hague Convention] cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation.”); cf. Sanchez v. R.G.L., 761 F.3d 495, 507-08 (5th Cir. 2014). And the Court denied de Loera’s request for the Court to individually interview each child in camera to consider whether equity compelled modifying the TRO, though the Court agreed to interview the thirteen-year-old in camera to ascertain the applicability of the Hague Convention’s mature-child-objection exception.

          The Court rejected de Loera’s argument that the children’s country of habitual residence should be the United States, based on the family’s short-lived plan to relocate to Florida. Determining a child’s country of habitual residence turns on “the parents’ shared intent or settled purpose regarding their child’s residence.” Larbie, 690 F.3d at 310. In cases like this one, where “the child is too young to decide residency on the child’s own,” the last place “ ‘both parents intended for the child’ ” to live controls absent “ ‘objective facts point[ing] unequivocally to [an alternative] conclusion.’ ” Cartes v. Phillips, 865 F.3d 277, 282-83 (5th Cir. 2017) (quoting Delgado v. Osuna, 837 F.3d 571, 578 (5th Cir. 2016)). Under this test, the children habitually resided in Mexico. A preponderance of evidence showed Pinto and de Loera most recently agreed to locate their family in Mexico City. For starters, it was the last place they lived as husband and wife, raising their family and giving birth to their fourth child over a five-year period. Because the children habitually resided in Mexico, and because de Loera admitted removing and retaining her children in the United States, Pinto proved the first prong of wrongful removal. Pinto had custody rights under the Mexican trial court’s November 2017 order, or even under the basic patria potestad authority de Loera concedes he would have under Mexican law. Pinto showed his children’s wrongful removal contravened his custody rights. Pinto cleared the final and “relatively easy” determination that he would have exercised his parental rights. Larbie, 690 F.3d at 307.  After all, “courts ‘liberally find’ that rights of custody have been exercised unless evidence demonstrates ‘acts that constitute clear and unequivocal abandonment of the child.’” The record supported Pinto’s claim that he exercised his rights under the provisional agreement, and that de Loera repeatedly thwarted his efforts to exercise his rights under the November 2017 and May 2018 orders. 

          De Loera tried to invoke the Convention’s mature-child-objection and grave-risk exceptions. The Fifth Circuit instructs both should “be applied narrowly,” and only where return does not further the Convention’s twin aims: “restor[ing] the pre-abduction status quo” and “deter[ring] parents from crossing borders in search of a more sympathetic court.” England v. England, 234 F.3d 268, 270-72 (5th Cir. 2000) . Since de Loera failed to carry the applicable burdens, the Court need not even consider their applicability. De Loera had to prove each element of the mature-child-objection exception by a preponderance of the evidence. See § 9003(e)(2)(B). Specifically, de Loera had to show that the children had “attained an age and degree of maturity at which it is appropriate to take account of [their] views,” and that they “object[ ] to being returned.” Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016). The Fifth Circuit requires their objection be more than “a mere preference” not to return—the child must affirmatively claim “living in that country would be unacceptable.” Rodriguez, 817 F.3d at 477. What’s more, “[a] child’s objection to being returned may be accorded little if any weight if the court believes that the child’s preference is the product of the abductor parent’s undue influence over the child.” The Convention sets no explicit threshold age for determining a child’s maturity, leaving courts to undertake a fact-intensive, case-by-case inquiry. Some Fifth Circuit courts have considered a thirteen-year-old sufficiently mature, see, e.g., Vasconcelos, 512 Fed. App’x at 407, but others have not, see, e.g., England, 234 F.3d at 272.

          Here, a preponderance of evidence suggested that no child had attained enough maturity to persuade the Court their views should control. The Court reaches this conclusion after interviewing the thirteen-year-old in camera, hearing testimony from each child’s teacher, and reviewing various writings by each child. Because de Loera failed to prove her children are mature enough for the Court to account for their views, the Court did not consider the mature-child-objection exception.

          De Loera's own testimony undermined the grave risk of harm exception. De Loera described the Pinto family’s Mexico City neighborhood as one of the grandest and most exclusive in the world. And two Mexican courts—to which this Court owed comity—already rejected any suggestion that either Pinto or his family abused the children. 

Rivero v Godoy, 2019 WL 1178472 (S.D. Florida, 2019)[Venezuela] [Necessary Costs]

In Rivero v Godoy, 2019 WL 1178472 (S.D. Florida, 2019) Plaintiff Camilo Ernesto Crespo Rivero requested an award of $47,306 in attorney’s fees and $2,810.63 in taxable costs after prevailing in this action. Defendant Angie Carolina Godoy did not file an opposition. The Magistrate Judge recommended that the District Court grant in part and deny in part Crespo’s motion and award him $47,306 in attorney’s fees and $2,122.75 in taxable costs ($687.88 less than requested).

In July 2018, Crespo filed a verified petition under ICARA against Godoy. Crespo, who lived in Venezuela, alleged that Godoy had wrongly kept their four-year-old son within the Southern District of Florida. 

In his fee motion, Crespo detailed the out-of-court preparation and work his counsel undertook in this case. In the same vein, Crespo added that his counsel: prepared for and participated in a four-day evidentiary hearing before the Court; prepared Mr. Crespo for his live testimony; prepared extensively for an evidentiary hearing including preparing for direct and cross examinations; coordinated with the Marshal’s Service regarding execution of the summons and ex parte order, and compliance with the Court’s Order Granting Petition; coordinated Respondent’s visitations with the child; and participated in numerous meetings and discussions with the U.S. Department of State and the Venezuelan Central Authority.

Crespo moved for attorney’s fees and costs under ICARA. That statute provides for fees and costs shifting from losing respondents to prevailing petitioners: Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.22 U.S.C. § 9007(b)(3).
The Eleventh Circuit has “read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs and expenses would be clearly inappropriate.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). Here, Godoy, who lost this ICARA case, did not respond to the fees and costs motion. So, she obviously made no showing that a fee-shifting award would be “clearly inappropriate.” As such, Crespo was entitled to a fees award for prevailing in this case.

The Court noted that the amount of recoverable fees in ICARA cases (like many others) turns on an application of the “lodestar” method. See, e.g., Ovalle v. Perez, No. 16-CV-62134, 2017 WL 7792719, at *1 (S.D. Fla. Nov. 9, 2017). Florida has adopted the federal “lodestar” approach to calculating attorney’s fees awards. Fla. Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). The lodestar figure is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party’s attorney. The court must separately consider the reasonableness of the hourly rate and the number of hours expended. A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by attorneys with reasonably comparable skills, experience, and reputation. Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). In determining the prevailing market rate, the Court should consider several factors, including “the attorney’s customary fee, the skill required to perform the legal services, the attorney’s experience, reputation and ability, the time constraints involved, preclusion of other employment, contingency, the undesirability of the case, the attorney’s relationship to the client, and awards in similar cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996).

Here, the hourly rates of Crespo’s attorneys, Ronald H. Kauffman and Raquel Lacayo-Valle, were $495 and $350, respectively. Kauffman had been practicing law in Florida since 1993; was board certified in family law; and, according to the motion, “is a frequent speaker on Hague and interstate family jurisdiction issues and is a published author on family law issues in the Florida Bar Journal and Florida Bar Family Law Section Commentator.” Lacayo-Valle had been practicing law in Florida since 2014 but was barred in California in 2001. Given that Godoy did not respond to the fees motion, she did not object to the hourly rates. Moreover, the Court using its knowledge and experience as an attorney and federal magistrate judge in South Florida since 1983, found the rates to be reasonable. See Norman, 836 F.2d at 1303 (“The court ... is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees[.]”).


The Court must exclude compensation for hours that are “excessive, redundant or otherwise unnecessary.” Norman, 836 F.2d at 1301.  Crespo seeks $47,306 in attorney’s fees, which is comprised of 77 hours of work by Kauffman and 26.26 hours of work by Lacayo-Valle. Crespo explains that this requested amount already deducts “one half of Ms. Lacayo-Valle’s time spent preparing for and in trial, (10 hours with a value of $3,500.00). The Court found the requested number of compensable hours is reasonable.


Crespo sought to tax the following costs: (1) $400 for fees of the clerk; (2) $419.10 for fees and disbursements for printing; (3) $101.88 in fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (4) $1,957.50 for compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828; and (5) $166.90 for PACER fees. The Court allowed taxation for categories (1) and (4) but disallowed taxation for categories (2), (3), and (5).

The Court recommended awarding $400 for the filing fee. This filing fee was reimbursable because it falls within the scope of taxable costs under § 1920(1). It did not recommend awarding $419.10 for fees and disbursements for printing. Crespo did not explain how these printing costs were necessarily incurred in the case. The motion to tax costs contains only a one-page summary of the printing costs, without any detail. Likewise, the Court did not recommend awarding $101.88 in fees for exemplification and the costs of making copies. Copying costs are recoverable if the copies were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). The party requesting taxation of costs must present evidence “regarding the documents copied including their use or intended use.” Cullens v. Georgia Dept. of Trans., 29 F.3d 1489, 1494 (11th Cir. 1994). General copying costs without any accompanying description are not recoverable. Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) . Crespo includes in his motion to tax costs only two invoices for color copies. The invoices did not say what the copies are for, and Crespo did not provide any detail about the copies in his motion. Therefore, $101.88 in fees for exemplification and the costs of making copies should not be taxed. The Court recommended awarding $1,957.50 for compensation of interpreters. The date of the invoice showed that these interpretation services were done for multiple days of trial. These costs are recoverable. See, e.g., Dimingo v. Midnight Xpress, Inc., No. 17-23010-CV, 2018 WL 7047958, at *3 (S.D. Fla. Oct. 25, 2018), report and recommendation adopted, No. 17-23010-CIV, 2019 WL 201717 (S.D. Fla. Jan. 15, 2019) (finding “award for costs for interpreter fees is appropriate, as such costs may be recovered under 28 U.S.C. § 1920(6)”).  The Court did not recommend awarding $166.90 for PACER fees. PACER costs are not taxable under § 1920. See MB Reo-FL Church-2, LLC v. Tampa for Christ Church, Inc., No. 8:16-CV-276-T-33AEP, 2018 WL 3008896, at *3 (M.D. Fla. June 15, 2018); Panico v. Ygsl Holdings LLC, No. 12-61269-CIV, 2013 WL 12092116, at *1 n.2 (S.D. Fla. Apr. 5, 2013); Parrot, Inc. v. Nicestuff Distrib. Int’l, Inc., No. 06-61231-CIV, 2010 WL 680948, at *15 (S.D. Fla. Feb. 24, 2010).

Castro v Hernandez Renteria, 2018 WL 7680608 (D. Nevada, 2018)[Mexico] [Report & Recommendation that Petition be granted]

In Castro v Hernandez Renteria, 2018 WL 7680608 (D. Nevada, 2018) the Magistrate Judge recommended that the petition of Carmen Castro Flores’ for the return of the minor child filed on September 7, 2018 be granted.

Petitioner and Z.M.F.Z. were both dual citizens of the United States and Mexico. Respondent was a citizen of Mexico, and she was the maternal grandmother of Z.M.F.Z. Z.M.F.Z. was born in Clark County, Nevada, on November 23, 2009 to Raul Flores Hernandez, her father, and C. Rusia Michel, her mother. Following Z.M.F.Z.’s birth, the family returned to Mexico. Z.M.F.Z.’s primary caregivers were her mother and respondent, until Z.M.F.Z.’s mother disappeared in April of 2014.  Following the disappearance, respondent became Z.M.F.Z.’s primary caregiver, and occasionally Z.M.F.Z. would see petitioner. In 2016, Raul and respondent established an informal custody agreement, permitting respondent custody on weekdays and Raul custody on the weekends. The informal arrangement continued for 10 months. According to respondent’s son, Jose Rufo Corona, Raul provided respondent with financial support to care for Z.M.F.Z. 

Raul and petitioner initiated custody proceedings against respondent before a family judge in the Sixth Judicial Court of the State of Jalisco in May of 2017. The Jalisco family court awarded custody to Raul on May 8, 2017. Following the custody order, Z.M.F.Z. resided with Raul and his wife until he was later arrested. Petitioner testified that following Raul’s arrest, Raul informally gave petitioner custody of Z.M.F.Z. In petitioner’s verified complaint, petitioner attests under the penalty of perjury that Z.M.F.Z. then resided with her beginning in July of 2017. In 2017, Raul was arrested in Mexico in relation to the United States’ Office of Foreign Assets Control’s (“OFAC”) allegations of drug trafficking.  In August of 2017, petitioner first learned that her husband, Oscar Armando Jimenez Hernandez, also appeared on OFAC’s drug trafficking designation list, alongside her father, Raul. However, petitioner testified that her husband was not involved in drug trafficking, or her father’s business. Petitioner also testified that she and her husband had never been arrested, and that there are no pending criminal charges against them. 

During the pendency of the custody proceedings, the Jalisco family court awarded respondent provisional custody rights from August 11, 2017 until August 18, 2017, to allow Z.M.F.Z. to be interviewed by a psychologist. Respondent was ordered to return with Z.M.F.Z. and the psychological report at the hearing scheduled for August 18, 2017. The Jalisco family court ordered respondent not to leave the State of Jalisco or Mexico with Z.F.M.Z during the pendency of the proceedings. On August 30, 2017, petitioner informed the court that respondent had left the country with Z.M.F.Z. Respondent failed to appear with Z.M.F.Z. at the September 8th hearing, but the Jalisco family court proceeded with the hearing and the taking of evidence. The Jalisco family court directed the Mexican Central Authority to begin the process of returning Z.M.F.Z. to Mexico under the Hague Convention. The Jalisco family court received a letter from respondent on September 13, 2017, stating that respondent had initially taken Z.M.F.Z. to the United States for a week, but that the two would now remain in the United States indefinitely. The Jalisco family court issued an official written notice to the Mexican Office of Foreign Relations that respondent had left the country with Z.M.F.Z. and ordered the initiation of Hague Convention proceedings for the return of the child. In this official notice, the court noted that respondent had removed Z.M.F.Z. from the country “notwithstanding the fact that the legal custody of [Z.M.F.Z.] is under legal dispute.” On May 8, 2018, the Jalisco family court revoked respondent’s provisional custody and awarded petitioner custody of Z.M.F.Z.  Petitioner testified that she first learned that Z.M.F.Z. left Mexico for Las Vegas in September of 2017. Based on the provisional custody order, petitioner assumed that Z.M.F.Z. was with respondent, and that it was not until Z.M.F.Z. did not return for the hearing that she knew respondent “had taken her.” Rufo testified that respondent is seeking asylum in the United States because she fears for her life in Mexico. 

Petitioner initiated an application for the return of Z.M.F.Z., under the Hague Convention, on July 4, 2018, with the Jalisco family court judge named as the petitioner. The petition was filed on September 7, 2018. 

Meanwhile, once in Las Vegas, respondent enrolled Z.M.F.Z. in the Ruben P. Diaz Elementary School on August 31, 2017, where Z.M.F.Z. continued to attend. 
The court heard testimony from Dr. Roitman, who the parties stipulated is an expert in child psychiatry. Dr. Roitman opined that Z.M.F.Z. has attained an age where it would be appropriate to consider her wishes to remain in the country. Dr. Roitman testified Z.M.F.Z. is “strongly attached to her grandmother” and that she views respondent as her primary caregiver, like a mother. Z.M.F.Z. has experienced two traumatic injuries caused by the separation of her primary caregivers, her mother who disappeared, and respondent. Dr. Roitman testified that Z.M.F.Z. has no ongoing psychiatric disorder, but exhibits avoidant anxiety resulting from being removed from respondent. Dr. Roitman attributed the cause of these symptoms to the three-month separation between respondent and Z.M.F.Z., when Z.M.F.Z. lived with Raul and then with petitioner in 2017. Dr. Roitman testified that Z.M.F.Z. lives in constant fear that the separation may occur again, and that the fear has manifested into the physical symptoms of stomach pain, nausea, and vomiting. Dr. Roitman further testified that Z.M.F.Z. experiences nightmares when she anticipates visits with petitioner. When asked whether he “believe[s] with a reasonable degree of medical certainty that there is a grave risk that [Z.M.F.Z.] will suffer psychological harm if she’s separated again from her primary caregiver, her grandmother,” Dr. Roitman responded with “yes.” Dr. Roitman continued, stating that the bond between respondent and Z.M.F.Z. must continue and that the bond itself is “more important than the location.” 

The parties did not dispute that Mexico was Z.M.F.Z.’s place of habitual residence until respondent removed Z.M.F.Z. to Las Vegas in August of 2017. Z.M.F.Z.’s habitual residence at the time of retention was Mexico. Respondent did not dispute that petitioner had custody rights and was exercising those rights at the time of wrongful retention. Petitioner and her father, Raul, initiated custody proceedings in May of 2017 against respondent. The court then awarded custody to Raul, who then informally passed on his custody of Z.M.F.Z. to petitioner upon his arrest. Petitioner established by a preponderance of the evidence a claim for return of Z.M.F.Z. to Mexico under the Hague Convention.

Respondent argued these proceedings were initiated more than a year after Z.M.F.Z. was removed from Mexico, and that Z.M.F.Z. is now well-settled in her new environment. Respondent argued that Z.M.F.Z. is of sufficient age and maturity and objects to a return. Finally, respondent argued a return to Mexico exposes Z.M.F.Z. to a grave risk of harm. The court found that respondent had not established a defense to return under the Hague Convention. 

A defense of delay requires a showing by the preponderance of the evidence that a) the petitioner has delayed more than one year in the filing of an application for return and b) that the child has become settled in her new environment. Hague Convention, art. 12, 19 I.L.M. at 1502. The one-year limitation is calculated from the date of the wrongful removal or wrongful retention to the commencement of the proceedings. In cases of wrongful retention, the clock begins to run either from the date the child remains with the abductor or when the acts of the abductor are so unequivocal that the other party knew, or should have known, that the child would not be returned. Based on the evidence presented, the court found that Z.M.F.Z. was well-settled. Although she had only been in Las Vegas for a little over a year, Z.M.F.Z. had established significant connections to Las Vegas, as she had developed friends, attended school regularly, and had family that resides in the area. Though respondent demonstrated by preponderance of the evidence that Z.M.F.Z. was well-settled in her new environment, petitioner’s Hague Convention petition was timely filed. Therefore, the court found that respondent had not established her untimely petition and well-settled defense by a preponderance of the evidence.

Respondent also argued Z.M.F.Z. had reached sufficient age and maturity, allowing her to object to return. Hague Convention, art. 13, 19 I.L.M. at 1502.  Z.M.F.Z. was called as a witness during the evidentiary hearing and testified to her age of eight, and her objections to returning to Mexico. When asked by respondent’s counsel why she did not want to return to Mexico, Z.M.F.Z. stated that she wished to remain in the Las Vegas because of her school, her friends, and to learn English. Further, Dr. Roitman testified to Z.M.F.Z.’s maturity level, concluding that she exhibited the maturity of at least an eight-year-old child. Based on the evidence, the court did  not find respondent had demonstrated by a preponderance of the evidence that Z.M.F.Z. had “exhibit[ed] an unusual degree of maturity and situational awareness” to accord her wishes “significant weight.” Blackledge, 866 F.3d at 187. While Z.M.F.Z. readily answered respondent’s counsel’s questions, Z.M.F.Z. had difficulty communicating and recalling events when questioned by petitioner’s counsel. Further, when petitioner’s counsel questioned Z.M.F.Z. as to why she changed her mind on participating in visitation, Z.M.F.Z. emotionally expressed concern that respondent would be harmed. Given Z.M.F.Z.’s emotional response, the court was not convinced that Z.M.F.Z.’s views were her own and not a result of influence from respondent. The court found that respondent had not demonstrated a mature-child defense by a preponderance of the evidence.

Respondent argued that returning Z.M.F.Z. to Mexico will expose her to physical or psychological harm. Respondent presented argument of counsel that returning Z.M.F.Z. would expose the child to contact with Raul’s family, who are allegedly “members of one of the largest drug cartels in Mexico.” According to respondent, petitioner’s immediate family members were designated by the United States Government as narcotics traffickers under the Drug Kingpin Act. Lastly, respondent argued that Raul, the alleged leader of the cartel, is still actively seeking custody, and thus exposes Z.M.F.Z. to harm.

The Court explained that a determination of grave risk is a question of fact and law. See Cuellar, 596 F.3d at 505. The grave-risk exception requires the court to consider “whether the child would suffer serious abuse that is a great deal more than minimal.” Gaudin, 415 F.3d at 1035. The grave-risk exception applies “only in extreme cases”. A grave risk of harm exists “when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease” or when there is “serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Friedrich, 78 F.3d at 1069 (indicating that sexual abuse of a child would constitute an intolerable situation). Proof of grave risk of harm requires “specific evidence of potential harm” to children. Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995). Other district courts and circuits have found a grave risk of harm in cases where the harm is a result of separation or disrupting the bond between the abductor and the child. See Rydder, 49 F.3d at 373; Steffen F. v. Severina P., 966 F. Supp. 922, 927-28 (D. Ariz. 1997). The Ninth Circuit, however, has not squarely addressed the issue, but has held that allowing an exception to return based on the trauma inflicted on a young child contravenes the Hague Convention’s rule of return. Asvesta, 580 F.3d at 1020-1021. The court in Asvesta recognized that a grave risk of harm must be more than what is expected when separating the child from a caregiver and passing her to another. 580 F.3d at 1021. Grave risk of harm is where “the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation.” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).

Here, respondent’s expert, Dr. Roitman, testified that Z.M.F.Z. exhibits anxiety and avoidant symptoms that were exacerbated by separation from Z.M.F.Z.’s primary caregiver, respondent. Dr. Roitman testified that the grave risk of psychological harm would only occur if Z.M.F.Z. is separated from respondent. Dr. Roitman cautioned that the bond between respondent and Z.M.F.Z. must continue, even if that meant that the bond was to continue in Mexico. Lastly, petitioner testified that neither her nor her husband have a criminal record and have no ties to the allegations against her father, Raul. Petitioner also did not express any concern that Z.M.F.Z. would be exposed to danger. The Court concluded that Respondent had not established by clear and convincing evidence that Z.M.F.Z. would be subject to a grave risk of serious harm from returning her to Mexico. Respondent only demonstrated that the possible grave risk of harm is attributed to the separation of Z.M.F.Z. from respondent. Given that respondent had not established a grave-risk defense by clear and convincing evidence, the court stated it would recommend that Z.M.F.Z. be returned to Mexico.