Griffiths v Weeks, 2018 WL 7824477 (S.D. Florida, 2018)[Australia] [ Habitual residence] [Petition denied]

          In Griffiths v Weeks, 2018 WL 7824477 (S.D. Florida, 2018) the district court denied the Petition of Jema Griffiths, a citizen and resident of Australia for the return of her minor child M.W., on the ground that at the time of the wrongful retention the child’s habitual residence was Florida.

          Griffiths and Weeks met via Facebook in early 2013 and initiated a relationship in April 2013. At the time, Griffiths was 16 and Weeks was 20 years old. For approximately two years, Griffiths and Weeks maintained a romantic relationship via Facebook. In March 2015, Weeks traveled to Griffiths’ family home in Australia to meet Griffiths in person for the first time.  During this trip, Griffiths became pregnant with M.W. At the conclusion of the trip, Griffiths and Weeks ended their relationship. In April 2015, Griffiths learned she was pregnant and informed Weeks of the pregnancy. Griffiths gave birth to M.W. in Australia on December 19, 2015.

          After the child’s birth, Griffiths brought M.W. to her family home where she cared for the child with the help of her mother. On February 14, 2016 when M.W. was approximately two months old, Weeks traveled on a round-trip airline ticket to Australia to meet his daughter. While there, Griffiths’ mother gave Weeks an opal ring which he used to propose to Griffiths on February 20, 2016. By March 2016, Griffiths and Weeks began discussing their plans to travel to the United States. Griffiths expressed some concerns about her ability to afford and access necessities for M.W. in Australia, and Weeks reassured Griffiths that once she arrived in the United States, they would be able to provide completely for M.W. During these conversations, Weeks encouraged Griffiths to get a six-month tourist visa for travel to the United States so that they could get married. On May 11, 2016, Griffiths, Weeks, and M.W. traveled to the United States. Weeks traveled on the return leg of his round-trip ticket and Griffiths and M.W. traveled separately on a different plane. Griffiths testified that she and M.W. traveled to the United States to meet Weeks’s family, while Weeks testified that the parties intended to marry while in the United States. When Griffiths and M.W. arrived at in Los Angeles, Griffiths was denied entry. According to Griffiths, during questioning at the airport, Griffiths—who was traveling on a tourist visa—told customs and border officials that she was engaged to be married to Weeks but that she was not planning to stay in the United States. Griffiths and M.W. returned to Australia without admission to the United States. Griffiths testified that after she returned to Australia with M.W., Weeks told her that he was working with lawyers and his family to get her to Florida so that she, Weeks, and M.W. could be together as a family. In June, Weeks returned to Australia for the second time, and Weeks, Griffiths, and M.W. traveled together to Mexico. According to Weeks, after Griffiths had been denied entry to the United States in May, Griffiths and Weeks decided they would get married in Mexico and then travel together as a family to the United States where they would ultimately settle. Griffiths, on the other hand, testified that she was only traveling to Mexico with plans to continue on to the United States temporarily and intended to return to Australia.

          On August 17, 2016, Weeks and M.W. traveled to Florida on one-way plane tickets, and on August 18, 2016, Griffiths traveled back to Australia. Weeks brought both M.W.’s and Griffiths’s belongings to Florida. Griffiths testified that the purpose of her trip to Australia was to complete the fiancé visa process and to attend to complications from a medical procedure she had while in Mexico. In late August of 2016, Griffiths demanded that Weeks bring M.W. to Australia. Weeks refused. In November, Griffiths and Weeks began the K-1 visa application process. Although Griffiths initially testified that she did not sign the K-1 visa, upon questioning from the Court she stated that she intended to apply for the K-1 visa and that she electronically signed it. Griffiths also testified that she sent Weeks a portion of the fees required for the K-1 visa. In November 2016, the parties received notification that the K-1 visa had been processed and that Griffiths was scheduled for an interview. Griffiths testified that she never received notification for the K-1 visa interview and that she never attended the interview. Facebook messages between Griffiths and Weeks demonstrated that she was at least aware the interview was scheduled. 

          The district court observed that the Hague Convention does not define the term “habitual residence.” The Eleventh Circuit, however, has determined that “[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” The analysis of the settled intent of the parents is far from formulaic; rather, the Court must examine the specific circumstances and actions of the parties to establish a shared intent to establish a particular residence. Such mutual shared intention need not be established over a long period of time. Under the second step, the Court looks to how settled and acclimatized the child is in the country of alleged wrongful retention. However, this factor carries less weight when the child is very young and “the customary considerations in analyzing habitual residence from the point of view of the child are not easily applicable.” Specifically, “acclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.”). Accordingly, in determining habitual residence of a young child such as M.W. here, the Court must give greater weight to the subjective intentions of the parents, as opposed to the settled intent of the child herself. Berezowsky v. Ojeda, 765 F.3d 456, 466 (5th Cir. 2014); Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006)); Holder v. Holder, 392 F.3d 1009, 1020–21 (9th Cir. 2004).

          The record before the Court demonstrated that Griffiths and Weeks had a mutual shared intent to establish M.W.’s habitual residence in the United States. In May 2016 after their engagement, Griffiths and Weeks developed plans to move the family to the United States. Their first attempt to relocate failed when Griffiths was detained by customs and border officials at the Los Angeles airport. During their second attempt, Griffiths and Weeks traveled first to Mexico with the intent to first marry in Mexico and then to travel together as a family to the United States. Griffiths packed the items that she and M.W. would need in the United States, including her travel documents, necessities, jewelry, and other valuables including Griffiths’s stone collection and her mermaid tail. While in Mexico, Griffiths and Weeks met with attorneys to determine how Griffiths could legally relocate to the United States with Weeks and M.W. who are both U.S. citizens. They determined that the most efficient way to relocate was by applying for a K-1 visa. In furtherance of that plan, Griffiths signed the Travel Authorization which gave permission for M.W. to travel with Weeks to the U.S. while she returned to Australia so that she could apply for the visa. Griffiths paid a portion of the K-1 visa fee and signed the K-1 visa application. She and Weeks discussed possible places to live together in South Florida and Griffiths identified a bar in Fort Lauderdale where she planned to apply to work as a mermaid entertainer. Despite the couples’ tight finances, she invested in a mermaid tail so that she could secure that position. Griffiths and Weeks also decided that they would stay with Espinosa Weeks for no more than one year while they became settled before securing their own home. Griffiths and Weeks discussed with family members that they planned to relocate Florida, including with Griffiths’s stepmother and Espinosa Weeks who prepared for M.W.’s arrival by purchasing a crib and other age-appropriate necessities that included diapers, bottles, and formula.

          The court found that beginning in May 2016, Griffiths and Weeks shared a mutual intent to relocate to the U.S. and took concrete steps to achieve that intent. Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). This was sufficient to establish M.W.’s habitual residence in the United States. See Falls v. Downie, 871 F. Supp. 100 (D. Mass. 1994) (finding habitual residence established in the United States after parents decided to relocate and mother later decided not to join the child and father in the United States). After this shared mutual intent to relocate to the United States was formed, Griffiths could  not unilaterally change M.W.’s place of habitual residence simply because she changed her mind about moving to the U.S. Mozes, 239 F.3d at 1077. As such, the record evidence that Griffiths later vacillated about relocating to the U.S. and that the parties maintained a complicated and rocky relationship since that shared mutual intent was formed did not disturb the Court’s finding. Moreover, while Griffiths testified that she never intended to move permanently to the United States, the Court found that testimony not credible nor supported by the record.

          As to acclimatization, while this factor held less weight given the young age of the child, it supported a finding of habitual residence in the United States. M.W. had resided in Australia for six months, Mexico for two months, and the United States for nineteen months as of the filing of the Petition. Respondents Weeks and Espinosa Weeks, as well as Victor Espinosa Weeks, testified that M.W. was well adjusted in the United States and regularly attended age-appropriate activities with family and through the local church. She was cared for in Florida by Espinosa Weeks while Weeks attended law school in New York, was developing normally for her age, attended required doctor’s appointments, and by all accounts was thriving in Florida. This testimony regarding her acclimation in the United States was uncontroverted. There was little testimony to support M.W.’s acclimation in any other country besides the United States.

Saada v Golan, 2019 WL 1317868 (E.D. New York, 2019)[Italy] [Grave risk of harm] [Undertakings] [Petition granted]

In Saada v Golan, 2019 WL 1317868 (E.D. New York, 2019) the district court granted the petition of Isacco Jacky Saada, against Narkis Aliza Golan, for the return of his two-and-a-half-year-old son, B.A.S., to Italy. 

The 31-year-old petitioner, an Italian citizen, was born and resided in Milan, Italy. The 28-year-old respondent, an American citizen, was born in Brooklyn, New York, and resided in New York. They were married on August 18, 2015, in Tel Aviv, Israel. The parties lived in Italy after the marriage. B.A.S. was born in Milan in June of 2016 and had dual Italian and American citizenship. Mr. Saada and Ms. Golan filled out and signed various documents for B.A.S.; they got him an Italian passport, medical coverage, identification cards, and a certificate of residence. They continued to live in the same apartment, and B.A.S. received all of his medical care in Italy. On July 28, 2017, while she and Mr. Saada were in the United States, Ms. Golan applied for a Social Security card for B.A.S., but did not tell Mr. Saada. Ms. Golan returned to Italy, because Mr. Saada promised to change, “work on” their marriage and go to counseling. On July 18, 2018, Ms. Golan and B.A.S. flew to the United States, with Mr. Saada’s consent, to attend Eldar Golan’s wedding. Although they were scheduled to return to Italy on August 15, 2018, Ms. Golan stayed in New York, and moved to a confidential domestic violence shelter. Ms. Golan claimed that she never agreed to live permanently in Italy or to have B.A.S. live there. But Mr. Saada never agreed to move to the United States. On September 19, 2018, Mr. Saada filed a criminal complaint in Milan, accusing Ms. Golan of kidnapping B.A.S. He initiated this action the next day. He also commenced civil proceedings in Italy. (Mr. Saada subsequently filed for sole custody of B.A.S. in Italy. 

The evidence established that Mr. Saada and Ms. Golan fought frequently, and that Mr. Saada physically, psychologically, emotionally and verbally abused Ms. Golan. He admitted that he slapped, pushed, and grabbed Ms. Golan. He estimated that he slapped Ms. Golan five or six times, pulled her hair three or four times, pushed her four or five times, threw a glass bottle during an argument, yelled, swore, and called her names. He also told Ms. Golan’s family that he would kill her, although he said he made the threat only out of anger. Mr. Saada admitted that he tried to restrain Ms. Golan, got “violent,” was “impulsive,” “los[t] control” when he got “angry,” and hit Ms. Golan “to shut her up.” Mr. Saada and Ms. Golan fought “on a daily basis.” Mr. Saada was “sure” that B.A.S. heard “screaming and fighting and yelling.” Although Mr. Saada was far and away the more violent, there were times when Ms. Golan fought with and yelled at him. She conceded that she scratched and kicked Mr. Saada, and verbally abused him. According to Mr. Saada, Ms. Golan slapped him a few times, scratched him about ten times, bit him about five or six times, spit in his face, kicked him, and often yelled at him. She called him names, insulted his family, and at one point said that she wished his family would die. There was no significant evidence that Mr. Saada was intentionally violent to B.A.S. Ms. Golan frequently left B.A.S. with Mr. Saada while she ran errands, or went out with friends. She also testified that she wants B.A.S. and Mr. Saada to have a relationship. 

The parties called four experts in the area of domestic abuse and its effects on children.
They agreed that domestic violence can have a significant effect on a child, even if the child is not the target of the violence. The experts also agreed that exposure to Mr. Saada’s undisputed violence toward Ms. Golan, including verbal, emotional, psychological, and physical abuse, posed a significant risk of harm to B.A.S. Two experts testified about the Italian legal system’s approach and capacity to handle cases of domestic violence.

          The parties agreed that Ms. Golan removed B.A.S. from Italy with Mr. Saada’s consent, that she retained him in the United States without Mr. Saada’s consent, in breach of Mr. Saada’s “rights of custody,” as defined in Article 5(a) of the Hague Convention, under Italian law, and that Mr. Saada was exercising those rights when Ms. Golan kept B.A.S. in the United States. Mr. Saada proved that Italy was the child’s habitual residence at the time Ms. Golan kept him in the United States. 

The district court noted that the Convention does not define “habitually resident,” but the Second Circuit instructs courts to make the following inquiries: 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. Gitter, 396 F.3d at 134. “In the easy case,” the parents agree on the child’s habitual residence; in most Hague Convention cases, the parents do not agree on the issue. Id. at 133. “It then becomes the court’s task to determine the intentions of the parents as of the last time that their intentions were shared,” which “is a question of fact in which the findings of the district court are entitled to deference.” Id. The habitual residence inquiry requires consideration of “the unique circumstances of each case.” Holder v. Holder, 392 F.3d 1009, 1016 (9th Cir. 2004).

The Court concluded that Italy was B.A.S.’s habitual residence at the time Ms. Golan kept him in the United States. B.A.S. was born in Italy and lived there until the summer of 2018 when Ms. Golan brought him to the United States. The parties’ only shared residence was in Italy, where they lived for more than a year before B.A.S. was born, and it became B.A.S.’s home as well. He went to pre-school in Italy, his doctors were there, as was his extended family. Before Ms. Golan brought him to the United States, B.A.S. had left Italy only three times, for short trips. See Holder, 392 F.3d at 1020 (“[I]f a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country.”).

The Court rejected Ms. Golan’s argument  that she and Mr. Saada never shared a settled intent that Italy would be B.A.S.’s habitual residence, that she conditioned her own residence in Milan on Mr. Saada’s promise to change, a promise he did not keep, and that she and B.A.S. lived in Italy only because Mr. Saada exercised coercive control over her. Ms. Golan’s actions showed that she intended that Italy be B.A.S.’s habitual residence. She established a home with Mr. Saada in Milan, and continued to live there with him after B.A.S. was born. Ms. Golan participated in decisions about B.A.S.’s life in Milan. She and Mr. Saada enrolled him in school, got him a pediatrician, and secured various forms of Italian identification for him. Cf. Guzzo, 719 F.3d at 104-05 (parents agreed mother would have custody of child and child would attend school in New York, mother home-schooled the child in English, and child was insured through Medicaid and received primary medical treatment in the United States). While Ms. Golan might have hoped to move to the United States, her actions established B.A.S. as a habitual resident of Italy. the parties’ last shared intent was to have B.A.S. live in Italy. Thus, Italy was the child’s habitual residence at the time Ms. Golan kept him in the United States.

The court found that Ms. Golan has met her burden of proving one affirmative defense— “grave risk of harm.” The Court pointed out that Article 13(b) of the Convention provides that “a grave risk of harm” from repatriating the child to the country of habitual residence arises “in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar, 720 F.3d at 103 According to the Second Circuit, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” The grave risk determination includes both “the magnitude of the potential harm” and “the probability that the harm will materialize.” Id. The grave risk exception “is to be interpreted narrowly, lest it swallow the rule.”. The respondent must prove grave risk of harm “by clear and convincing evidence.” 22 U.S.C. § 9003(e)(2)(A).
The Second Circuit instructs courts considering this question to take care to differentiate between “those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences,” and “situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation.” Blondin v. Dubois (“Blondin II”), 238 F.3d 153, 162 (2d Cir. 2001). The former situations are not considered grave risks of harm; the latter are. The grave risk of harm need not take the form of direct physical abuse to the child. A history of spousal abuse “though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.”); see also Ermini, 758 F.3d at 164–65 (spousal abuse can establish a grave risk of harm to the child in certain circumstances). “[A] sustained pattern of physical abuse and/or a propensity for violent abuse” that poses “an intolerably grave risk to the child” can establish the exception to the preference for repatriation. Souratgar, 720 F.3d at 104 
 However, the history of domestic violence is relevant only “if it seriously endangers the child.” Souratgar, 720 F.3d at 103-104. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. “Sporadic or isolated incidents” of physically disciplining the child, “or some limited incidents aimed at persons other than the child, even if witnessed by the child” are generally not grave risks of harm. 

There was no dispute that Mr. Saada was violent—physically, psychologically, emotionally, and verbally—to Ms. Golan, or that B.A.S. was present for much of it. Nor was there any dispute that a child who is exposed to domestic violence, even though not the target of abuse, could face a grave risk of harm. Accordingly, Ms. Golan established by clear and convincing evidence that returning the child to Italy would subject the child to a grave risk of harm.

Having found that repatriation posed a grave risk of harm to B.A.S., the court had to  consider whether there are “any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with the child’s repatriation.” Blondin I, 189 F.3d at 248. “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin II, 238 F.3d at 163, n.11. It directed the parties to propose ameliorative measures that could achieve this goal.

Ms. Golan took the position that there were no steps that would protect B.A.S., and no way to ensure that Mr. Saada would comply with them.  Mr. Saada  agreed to the following undertakings:” (1) he will give Ms. Golan $30,000 before B.A.S. is returned to Italy for housing accommodations without restriction on location in Italy, financial support, and legal fees; (2) he will stay away from Ms. Golan until the Italian courts address this issue; (3) he will pursue dismissal of criminal charges against Ms. Golan relating to her abduction of B.A.S.; (4) he will begin cognitive behavioral therapy in Italy; and (5) he waives any and all rights to legal fees or expenses under the Hague Convention and ICARA for the prosecution of this action. In addition, Mr. Saada is to provide the full record of these proceedings, including trial transcripts, court filings, exhibits, undertakings, expert reports, and decisions of this Court to the Italian court presiding over the custody proceeding. Mr. Saada is to provide a sworn statement with the measures he will take to assist Ms. Golan in obtaining legal status and working papers in Italy. Mr. Saada must also drop any current civil actions against Ms. Golan in Italy based on the abduction of B.A.S., and must not pursue any future criminal or civil actions against her in Italy based on the abduction.” 

Based on these undertakings and conditions, which the Court concluded sufficiently ameliorated the risk of harm to B.A.S. upon repatriation, the petition was granted. 

Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019)[Poland] [habitual residence] [petition granted]

In Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019) Petitioner Nikodem Wtulich (“Wtulich”) sought the return of his daughter AW to Poland. With the parties’ consent, the magistrate judge presided at a bench trial of the matter. He found that AW habitually resided in Poland, that Wtulich was exercising parental control until Filipkowska wrongfully retained AW in this country, and that AW was not settled in this country in the pertinent legal sense. Wtulich was therefore entitled to have AW returned to him.

The court found that AW was born in 2008 in Warsaw, Poland. Her parents were never married to one another. AW lived mostly with Filipkowska in Pisz, Poland, but Wtulich regularly spent time with her, playing soccer and celebrating holidays together. Wtulich also made decisions regarding AW’s travel outside of Poland. He twice granted the requisite permission for AW to obtain a passport, allowing Filipkowska to travel with AW to the United States several times between 2008 and 2013 to visit family in New York. In June 2013, Wtulich again gave his consent to Filipkowska to travel to the United States with AW, this time to attend her brother’s wedding. On this occasion Wtulich believed only that he was consenting to have AW spend about three months in New York before returning to Poland; he and Filipkowska discussed choosing a school in Poland for AW to attend upon her return in the fall. In September 2013, after taking AW to the United States based on Wtulich’s consent for her to be there for about three months, Filipkowska informed Wtulich via Skype that she wanted to stay in the United States longer and enroll AW in kindergarten in New York. Wtulich expressed his disagreement with the plan, but eventually agreed. Thereafter, Filipkowska stopped communicating with Wtulich except through emails.  Notwithstanding Filipkowska’s decision to extend AW’s stay in the United States, Wtulich expected AW would have to return to Poland shortly because she was traveling on a tourist visa that permitted her to stay in this country only for six months. In December 2013, however, Filipkowska informed Wtulich that she intended to retain AW in the United States so that she could attend kindergarten in New York. Fearing that he would risk losing contact with AW forever if he objected, Wtulich sent an email to Filipkowska stating that he was “happy to hear that [she] made this decision,” and that this was “also good for [AW] because [he would] rather she went to kindergarten there. That same month, however, concerned that Filipkowska intended to keep AW in the United States indefinitely, Wtulich spoke with an attorney. Wtulich maintained contact with AW through regular Skype calls, and in April 2014, he traveled to the United States for two weeks to spend time with AW. He also planned to discuss her return to Poland. Instead, sometime around May 2014, Filipkowska informed Wtulich of her intent not to return to Poland with AW. Wtulich again spoke with an attorney and, on June 12, 2014, filed an ICARA Application with the Department of State. AW’s passport expired in 2015, and Filipkowska requested Wtulich’s permission to renew it. Wtulich refused. Instead, he filed the Petition in this case on June 7, 2016. 

Filipkowska, her new husband, and AW now resided in New Jersey. AW attends school there; she excels in her education and was enrolled in several activities, including swimming and tennis. She had several friends in the United States, as well as a dog and a cat. While she spoke basic Polish, she did not read or write in that language. She preferred to remain in the United States but lacked the legal status that allows her to do so. 


The parties agreed that until Filipkowska brought AW to the United States on June 24, 2013, AW’s habitual residence was Poland. The Court credited Wtulich’s testimony in general, and in particular his assertion that he did not consent to AW remaining in the United States indefinitely. The court found that the parties’ last shared intent was for AW to return from her summer 2013 vacation in the United States and reside in Poland.  The court had to consider whether, notwithstanding the parents’ intent, “the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted.” Gitter, 396 F.3d at 133. A fair reading of the record compelled the conclusion that AW’s attachments were all in the United States. The latter finding, however, was in tension with the Convention’s objective “to dissuade parents ... from engaging in gamesmanship with a child’s upbringing in order to secure an advantage in an anticipated custody battle.” Gitter, 396 F.3d at 134. Indeed, “courts should be ‘slow to infer’ that the child’s acclimatization trumps the parents’ shared intent” because “[p]ermitting evidence of acclimatization to trump evidence of earlier parental agreement could ‘open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit.’” Id. (quoting Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001)); see also Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) (“It would frustrate the objectives of the Convention if a parent or guardian could secure an advantage in an anticipated custody dispute merely by whisking the child away to a foreign land, and retaining her there long enough to amass evidence of the child’s acclimatization to the new location.”) (citing Gitter, 396 F.3d at 134). While considering evidence of acclimatization makes sense where it occurred during a period of shared parental intent about a child’s residence, doing so where the acclimatization occurs only as a result of one parent’s unilateral decision frustrates the Convention’s purpose. See Mohácsi v. Rippa, 346 F. Supp. 3d 295, 313 (E.D.N.Y. 2018) (collecting cases); Ordonez v. Tacuri, 2009 WL 2928903, at *6 n. 8 (E.D.N.Y. Sept. 10, 2009) (“[I]t would be inappropriate to consider the period of time after the alleged wrongful removal in the acclimatization analysis, as this could reward the [allegedly] abducting parent for the time during which the child was [allegedly] wrongfully retained or removed.”). Accordingly, the court considered evidence of AW’s acclimatization only to the extent it occurred between her arrival in the United States in June 2013 and May 2014, when Filipkowska told Wtulich that she intended to retain AW in the United states. AW began that period accustomed to living in Poland, where she had habitually resided for her entire life. Over the course of the next eleven months, she attended kindergarten for an entire school year. There was no additional cognizable evidence of her acclimatization. Thus, considering both parental intent and acclimatization, it concluded that AW’s habitual residence was in Poland.

There were no judicial or administrative decisions or legally binding agreements defining Wtulich’s or Filipkowska’s rights of custody. However, they agreed that each has parental authority and that Wtulich’s permission was necessary for AW to obtain a passport. Wtulich exercised his rights at the time of the alleged wrongful retention. Prior to AW’s vacation to the United States, He exercised his parental authority by granting permission for her to obtain a passport. Indeed, Filipkowska does not dispute that Wtulich exercised his rights of custody over AW. Thus, Filipkowska’s retention of AW in the United States, absent Wtulich’s consent, constituted a breach of Wtulich’s custody rights. See In re Skrodzki, 642 F. Supp. 2d 108, 114-115 (E.D.N.Y. 2007). The court found that Wtulich established a prima facie case of wrongful retention under the Convention.

Filipkowska argued that the court should dismiss the Petition because Wtulich filed it more than a year after she removed AW to the United States, and because AW was now settled in her new environment. The court held that although Wtulich did not file the Petition within one year of the wrongful retention, AW was not sufficiently settled in the United States to defeat his right under the Convention to her repatriation to her habitual place of residence in Poland. 

Wtulich filed the petition in June 2016. He knew that Filipkowska had decided to retain AW permanently in the United States, in violation of his parental rights, no later than May 2014 when Filipkowska sent him an email announcing her decision. Therefore, the court had to consider whether AW had become settled in her new environment.  Neither the Convention nor ICARA defines what it means for a child to be “settled” or prescribes a method for establishing it, but courts in this circuit understand that a child is settled if she “has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano, 697 F.3d at 56. Relevant factors include the following: (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. The court noted that the weight afforded a child’s immigration status “will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child’s age, and the extent to which the child will be harmed by her inability to receive certain government benefits.” Weighing all of the circumstances, the court found that Filipkowska had not established that AW was settled in this country.


Filipkowska next asserted that Wtulich consented to AW’s retention in the United States. She also contended that Wtulich’s application for access to AW demonstrated further evidence of his acquiescence. The court did not infer from the emails Filipkowska cited that Wtulich was willing to allow AW to remain in the United States. It credited his testimony that be wrote those emails to placate Filipkowska rather than risk having her hide AW from him. Similarly, Wtulich’s initial attempt, in filing the ICARA Application, to secure access to AW rather than her repatriation did not establish his acquiescence within the Convention’s meaning. See Friedrich, 78 F.3d at 1070 (“Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.”).  To establish her acquiescence defense, Filipkowska had to show “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.” In re Koc, 181 F. Supp. at 151 (quoting Friedrich, 78 F.3d at 1070). Although Wtulich wrote in his Application that he would “respect [Filipkowska’s] decision to stay in the [United States], subject ... to [his] rights ... to maintain meaningful contacts with [his] daughter,” he started by noting his desire for AW “to continue to live in Poland.” Wtulich also testified that he did not draft the Application’s text himself or check the box on the form’s front page selecting a remedy, but that his counsel did so. After counsel filed the Application, Wtulich asked him to file a petition for return instead, to no avail. The court found Wtulich’s testimony credible and concluded that the record does not establish that he ever intended to allow Filipkowska to retain AW in this country permanently. The Application was not “a convincing written renunciation of rights” and the record did not otherwise reveal that Wtulich demonstrated “a consistent attitude of acquiescence over a significant period of time.” In re Koc, 181 F. Supp. 2d at 151 (quoting Friedrich, 78 F.3d at 1070). The court found that Filipkowska failed to establish the defense of acquiescence.

Filipkowska raised a third defense that AW preferred to remain in the United States. The Convention “permits a court to ‘refuse to order the return of the child if it 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 [her] views.’ ” Blondin IV, 238 F.3d at 166 (quoting Convention art. 13). The Court interviewed AW at the end of the trial, at which time she was nine years old. Her English was excellent. When I asked if she understood the nature of what was going on, she responded, “[Wtulich] wants to take me to Poland and I don’t want to go there. And my Mom doesn’t want me to go there either.”. She further indicated that she did not remember much about her life in Poland. She also stated that the she would rather the visits be in the United States, because “it’s more fun here. I like it better here than Poland.”  The court found
 that while AW was articulate, she was not sufficiently mature to give thoughtful consideration to its questions. It found that AW has not yet attained an age and a degree of maturity that requires the court to accede to her objection. It also found that while her view can and does weigh in the balance, it did not outweigh Wtulich’s right to her return. See Poliero v. Centenaro, 2009 WL 2947193, at *21 (E.D.N.Y. Sept. 11, 2009) (declining to give weight to the considered objections of thirteen- and nine-year-old children). 

Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) [Canada] [Article 18] [petition granted]

In Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) the district court ordered that the parties’ son, K.A.A., be returned to Mr. Asumadu in Canada, while allowing their daughter, A.K.A., to remain in the United States with Ms. Baffoe. Reviewing the district court’s factual findings for clear error, the Ninth Circuit affirmed. It found that the district court did not clearly err in finding that the parties had no “shared, settled intent” for Canada to become A.K.A.’s habitual residence. The district court, crediting Ms. Baffoe’s testimony that her move to Canada with A.K.A. was intended as a trial period to determine whether Mr. Asumadu would continue to abuse her, found that “there was never a shared intent for A.K.A. to live anywhere other than with [Ms.] Baffoe.” It also found that the district court did not clearly err in finding that the parties did have a “shared, settled intent” for Canada to become K.A.A.’s habitual residence. Murphy, 764 F.3d at 1150. It did not decide whether the district court erred in not excusing—due to Ghanaian cultural norms—Ms. Baffoe’s failure to use legal processes to ensure K.A.A.’s return to the United States, because it relied on other evidence too in reaching its determination about the parties’ intent.  The Court declined to decide whether or under what circumstances abuse of a spouse may create a grave risk of harm to the spouse’s child because A.K.A. was to remain in the United States with Ms. Baffoe while K.A.A. would return to Canada with Mr. Asumadu. Ms. Baffoe indicated that she did not otherwise plan to return to Canada—given the parties will not be living together, there was no risk of spousal abuse or resulting harm to the children. Lastly, it held that the district court did not abuse its discretion by not implementing Article 18 of the Hague Convention to order A.K.A.’s return to Canada. Such a decision is discretionary, and the record did not show that equitable considerations required such a return. See In re B. Del C.S.B., 559 F.3d 999, 1015 (9th Cir. 2009) (“We decline to remand the case to the District Court for a discretionary determination under Article 18 as to whether Brianna should be returned to Mexico.”).

Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) [Canada] [necessary expenses] [clearly inappropriate]

         In Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) the district court denied Petitioner Akwasi Damoah Asumadu’s motion for necessary expenses and granted Respondent Hannah Boahemaa Baffoe’s motion for review of the Clerk of Court’s judgment on taxation of costs as modified. Asumadu sought recovery of “necessary transportation expenses” pursuant to 22 U.S.C. § 9007(b)(3):  (1) $1,201.73 for transportation and lodging related to the July 31, 2018 bench trial, and (2) $674.31 for transportation and lodging related to K.A.A.’s return to Canada. The Court noted that in relevant part, ICARA provides that: Any court ordering the return of a child...shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including...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). ICARA “contemplates the use of such awards to restore a petitioner to the financial position he or she would have been in had there been no removal or retention, as well as to deter violations of the Hague Convention.” Aguilera v. DeLara, No. 14-01209-PHX-DGC, 2014 WL 4204947, *1 (D. Ariz. Aug. 25, 2014). As the respondent, Baffoe had the burden of establishing that an award of fees and costs would be clearly inappropriate under the circumstances. Baffoe asserted that an assessment of the sought-after expenses against her was clearly inappropriate because her actions were a result of Asumadu’s physical abuse, and that any assessment of expenses would cause her financial hardship. Baffoe also argued that some of the sought-after expenses were unnecessary or excessive.  The Court pointed out that generally, in determining whether expenses are ‘clearly inappropriate,’ courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition. Souratgar (citing cases). For example, awarding expenses is clearly inappropriate where the prevailing petitioner physically abused the respondent, see, e.g., Aguilera, 2014 WL 4204947, at *1-2, because “a [parent] should not be required under the threat of monetary sanctions to choose between continued abuse (mental as well as physical) and separation from a young child[.]” Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at *3 (N.D. Tex. Oct. 19, 2010), adopted by 2011 WL 108946 (N.D. Tex. Jan. 11, 2011). The Court previously found that “the description of events provided by Baffoe is consistent with her having been the victim of some form of domestic violence,” and that “Asumadu likely struck Baffoe on more than one occasion.” Under the circumstances, the Court found that Baffoe “was faced with a cruel dilemma, whether to continue to receive the physical abuse...from [Asumadu], or retreat and suffer from the separation of the child.” Guaragno, 2010 WL 5564628, at *3. Accordingly, it held that an award of expenses would be clearly inappropriate in this case.

Calixto v Lesmes, 2019 WL 501068 (M.D. Florida, 2019)[Colombia] [Report and Recommendation on Remand] [Habitual Residence]

          In Calixto v Lesmes, 2019 WL 501068 (M.D. Florida, 2019) after an evidentiary hearing, the Magistrate Judge issued a Report and Recommendation (R&R) recommending that Mr. Calixto’s petition be denied because both parties shared the intent for the United States to be M.A.Y.’s habitual residence. Subsequently, the Court adopted the R&R and denied Mr. Calixto’s petition. On appeal, the Eleventh Circuit found unresolved factual issues, which prevented proper determination of M.A.Y.’s habitual residence. The Eleventh Circuit retained jurisdiction but remanded the case for further factual findings. On remand, the Court referred the case for a supplemental R&R. In remanding the case, the Eleventh Circuit identified specific factual issues for this Court to resolve: (1) the status of the relationship between Mr. Calixto and Ms. Lesmes in 2015; (2) the circumstances surrounding the travel consent form executed by Mr. Calixto and M.A.Y.’s departure from Colombia; and (3) ultimately “whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States.” Additionally, the Eleventh Circuit stated that the Court should address “whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence,” which are set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). The Magistrate Judge noted that under the Hague Convention, Mr. Calixto must establish the facts in support of his petition by a preponderance of the evidence. 22 U.S.C. § 9003(e)(1). He found that Mr. Calixto had not established the facts supporting his petition by the preponderance of the evidence.

The first question the Court had to resolve is the status of the relationship between Mr. Calixto and Ms. Lesmes in 2015. The Court, finding the testimony of Ms. Lesmes to be honest and credible, found that the relationship ended in August 2015 and did not resume. The next factual issue for consideration concerned the circumstances surrounding the travel consent form executed by Mr. Calixto in November 2015 and M.A.Y.’s departure from Colombia. The court found that the travel consent form indicated Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he could not gain entry into the United States. The above findings laid the foundation for the ultimate question on remand: whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States. In accordance with the above findings, the court found that Mr. Calixto shared an unconditional intent to change M.A.Y.’s habitual residence to the United States, regardless of his ability to enter the United States. Because the Court found that Mr. Calixto expressed an unconditional consent for M.A.Y. to move to the United States, and because the Eleventh Circuit did not disturb this Court’s previous findings regarding acclimatization, M.A.Y.’s habitual residence changed to the United States.

          The Eleventh Circuit also asked the Court to consider “whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence.” In Mozes v. Mozes, the Ninth Circuit addressed the difficult question of “when evidence of acclimatization should suffice to establish a child’s habitual residence, despite uncertain or contrary parental intent.” 239 F.3d at 1078. After thorough discussion of the goals of the Hague Convention and the flexibility of children, the court acknowledged that “a child can lose its habitual attachment to a place even without a parent’s consent.” Adopting the reasoning of the Ninth Circuit, the Eleventh Circuit noted in Ruiz v. Tenorio that when there is no shared settled intent on the part of the parents to abandon the child’s prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence, or if the court could “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring a return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed. “Ruiz (quoting Mozes, 239 F.3d at 1081). Thus, to answer the final question on remand, the Court had to consider—if Ms. Lesmes and Mr. Calixto did not share intent to change M.A.Y.’s habitual residence—whether the facts unequivocally pointed to a new habitual residence, or if the Court could say with confidence that sending M.A.Y. back to Colombia would be tantamount to taking her out of the family and social environment in which her life had developed. The parties agreed that the relevant time period to assess the M.A.Y.’s habitual residence wass “‘immediately before the removal or retention.’” See Fuentes-Rangel v. Woodman, 617 F. App’x 920, 921 (11th Cir. 2015).

          The critical question was whether M.A.Y.’s habitual residence had changed to the United States by November 2016. To answer that question, the Court, as instructed by the Eleventh Circuit, considered “whether the evidence presented at the hearing” established a change in habitual residence. As discussed in the prior R&R, a change in habitual residence, even with the shared intent of the parents, requires some acclimatization to the new residence. Ruiz, 392 F.3d at 1253 (citing Mozes, 239 F.3d at 1078). To that end, the Court found sufficient evidence of acclimatization to effect a change in habitual residence with the shared intent of M.A.Y.’s parents. But without shared intent of the parents, the Court must be confident in a high level of acclimatization. “Despite the superficial appeal of focusing primarily on the child’s contacts in the new country ... courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. “The Convention is designed to prevent child abduction by reducing the incentive of the would-be abductor to seek unilateral custody over a child in another country. The greater the ease with which habitual residence may be shifted without the consent of both parents, the greater the incentive to try.” Additionally, “[c]hildren can be remarkably adaptable and form intense attachments even in short periods of time.”  In considering the evidence presented at the evidentiary hearing, the Court could not say that the facts unequivocally pointed to a new habitual residence. The Court previously identified numerous factors showing M.A.Y.’s acclimatization in the United States, including religious services, friends and family, and the beginning of M.A.Y.’s formal education.  However, M.A.Y. also participated in many similar activities in Colombia, the country where she was born and spent the early years of her life, including family functions, religious events, and early schooling. M.A.Y. also had numerous family members in Colombia.  M.A.Y.’s contacts in the United States were the type of routine contacts from which a court should be “slow to infer” a change in habitual residence. See Mozes, 239 F.3d at 1067. Mozes made clear that a great weight should be attributed to the intent of the parents over evidence of acclimatization. Although M.A.Y. developed strong ties to the United States, the evidence showed ties to Colombia as well. The evidence did not establish that M.A.Y.’s acclimatization to the United States was so complete that serious harm could be contemplated by a return to Colombia. Thus, although M.A.Y. had acclimatized to the United States sufficient to change her habitual residence with her parents’ intent, the record did establish the high level of acclimatization necessary to overcome a lack of shared intent. Therefore, it was recommended that the Court find that M.A.Y.’s habitual residence changed to the United States based on her parents shared, unconditional intent. If the Court finds that M.A.Y.’s parents did not share an unconditional intent, it was recommended that the Court not find a change in M.A.Y.’s habitual residence.

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.