Gil- Leyva, v. Leslie, 2019 WL 2651093 (Tenth Cir., 2019) [Canada] [Federal & State Judicial Remedies] [Remote Testimony] [Grave risk of harm] [Petition granted](unpublished)

         In Gil- Leyva, v. Leslie, 2019 WL 2651093 (Tenth Cir., 2019) (unpublished) the Court affirmed the district court determination which granted the petition for return.

          Ms. Leslie, a U.S. citizen, and Mr. Gil-Leyva, a Canadian citizen, met in Colorado in late 2007 and began cohabiting there in March 2008. Ms. Leslie and Mr. Gil-Leyva never formally married. About September 2009, they relocated to Alberta, Canada, where their children, H.M.G. and H.F.G., were born. Ms. Leslie testified that she lived in Canada like a “human trafficking victim.”. She testified that she endured physical abuse, occasionally in front of the children, and that she witnessed Mr. Gil-Leyva abuse alcohol, marijuana, and prescription narcotics. Regarding the children, she testified that Mr. Gil-Leyva spanked them, got angry and threw objects in their vicinity, and neglected their basic needs when left alone with them. She further testified that Mr. Gil-Leyva allowed unsafe living conditions, with non-child-resistant bottles of prescription narcotics, power tools, deconstructed machine parts, solvents, and other hazardous items lying in the home, some of which the children played with. And, she testified about noxious fumes in the home from Mr. Gil-Leyva cooking solvents, pennies, and vehicle parts in the kitchen. Mr. Gil-Leyva disputes many of these allegations.

          In May 2016, Ms. Leslie convinced Mr. Gil-Leyva to give his consent for the children’s passports so they could visit her ailing mother for a week and a half. About a week after arriving in Colorado, however, Ms. Leslie informed Mr. Gil-Leyva that she intended to stay beyond the agreed-upon date. Then, in October 2016, Ms. Leslie told Mr. Gil-Leyva that she would not return to Canada with the children. Mr. Gil-Leyva booked a flight to Colorado, hoping to discuss the parties’ relationship in person. Ms. Leslie, in turn, obtained a protection order against Mr. Gil-Leyva which restricted him to supervised visitation with the children. She then initiated state-court proceedings seeking full custody of the children. On June 9, 2017, Mr. Gil-Leyva filed this pro se action in federal district court, seeking an order returning H.M.G. and H.F.G. to Canada under the Hague Convention and the ICARA.

          With the parties’ agreement, a magistrate judge presided over the entire case. On April 17, 2018, the magistrate judge issued a written order granting Mr. Gil-Leyva’s request to return H.M.G. and H.F.G. to Canada. Ms. Leslie timely appealed and requested a stay of the order under Rule 62(c) of the Federal Rules of Civil Procedure. The judge granted the motion and stayed the order pending resolution of the appeal.

          Leslie and Gil-Leyva agreed that Ms. Leslie had since May 2016 wrongfully retained their two minor children, H.M.G. and H.F.G., in the United States and outside Canada, the children’s country of habitual residence.  Ms. Leslie raised two issues on appeal. First, she argued that the magistrate judge abused her discretion in permitting Mr. Gil-Leyva to appear telephonically at the January 10, 2018, evidentiary hearing after denying his Rule 43(a) motion to testify in that fashion. Second, she contended the magistrate judge erred in determining that H.M.G. and H.F.G. do not face a “grave risk” of harm if returned to Canada. 

      The Tenth Circuit observed that under Rule 43(a), a district court may allow remote testimony only “[f]or good cause in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). Mere inconvenience doesn’t satisfy this standard. In general, the rule contemplates situations where a witness cannot appear in person “for unexpected reasons, such as accident or illness[.]” Other reasons “must be approached cautiously.”  In this case, Mr. Gil-Leyva requested permission to testify remotely because he “resides in British Columbia, Canada, and currently lacks the financial means to travel to Colorado for the hearing.” The magistrate judge denied this request, explaining that, as a pro se litigant, “the logistics of an evidentiary hearing mandate that he appears in person ... to litigate his case. There was no error in this result, given that financial hardship isn’t the type of “unexpected reason []” that is “typically required in a showing of good cause for telephonic testimony.” See Eller, 739 F.3d at 478. Nevertheless, at the hearing, the judge permitted Mr. Gil-Leyva to appear telephonically, overruling Ms. Leslie’s objection to the testimony’s reliability. The judge made no express finding that good cause justified departing from her prior ruling; she stated only that “[t]he hearing is set for today, and it will go forward.” The Court rejected Ms. Leslie contention that this unexplained departure constituted an abuse of discretion. The broader legal context in which this case arose reinforced this conclusion. The Hague Convention provides that “[t]he judicial ... authorities of Contracting States shall act expeditiously in proceedings for the return of children.” (T.I.A.S. No. 11,670, Art. 11) This means “a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA.” West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). In this context, nothing requires a court even to hold an evidentiary hearing. A court that does hold a hearing has some latitude to deviate from ordinary rules of procedure that might delay a final resolution. The Court also rejected the argument that the magistrate judge committed reversible error in failing to implement “appropriate safeguards” to ensure the reliability of Mr. Gil-Leyva’s remote testimony.

                 

          The sole issue on appeal was whether Ms. Leslie had established an affirmative defense (or “exception”) to the children’s repatriation to Canada. Ms. Leslie pressed a single defense on appeal: that she demonstrated by clear and convincing evidence a “grave risk” that the children’s return to Canada would expose them to “physical or psychological harm or otherwise place the[m] ... in an intolerable situation.” See T.I.A.S. No. 11,670, Art. 13(b); 22 U.S.C. § 9001(e)(2)(A). As the term implies, a “grave risk” means the “potential harm to the child must be severe, and the level of risk and danger ... very high.” West, 735 F.3d at 931 (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)). To satisfy her burden, Ms. Leslie testified that Mr. Gil-Leyva physically abused her and the children when they lived with him and that he negligently cared for the children and allowed unsafe living conditions in the home. The magistrate judge recited these allegations and found them insufficient to establish by clear and convincing evidence a grave risk of harm to the children. The Tenth Circuit agreed.

         The magistrate judge recited Ms. Leslie’s testimony that Mr. Gil-Leyva “slapped” and “shoved” her several times and once “choked her with his hands,” causing her to break a blood vessel in her eye and bruise on her neck. Though this testimony was deeply concerning, and undeniably would figure in any Canadian custody proceedings, spousal abuse is relevant for Article 13(b) purposes only if it “seriously endangers” the child. See Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). Evidence of a “clear and long history of spousal abuse” may suffice to show a propensity for child abuse, see Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000), but isolated incidents of abuse generally demonstrate a risk of harm only to the spouse. At a minimum, the spouse must “draw a connection” showing that the risk such abuse poses to her “constitute[s] a grave risk to the children.” See Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010). Ms. Leslie failed to do so in this case.

          Addressing physical abuse of the children, the magistrate judge recited Ms. Leslie’s testimony that Mr. Gil-Leyva spanked H.F.G. “only once” and H.M.G. six times “with an open hand,” leaving “marks” on their “bare bottoms.” Certainly, a parent who is “in the habit of striking the children,” even for disciplinary purposes, might pose a grave risk of harm to them. See Ermini v. Vittori, 758 F.3d 153, 165 (2d Cir. 2014). But the described spankings, though again perhaps a subject for any Canadian custody proceedings, did not suffice to show a grave risk of harm. Cf. Simcox v. Simcox, 511 F.3d 594, 608–09 (6th Cir. 2007) (considering it a “close question” that even “repeated beatings, hair pulling, ear pulling, and belt-whipping” established a grave risk of harm). Likewise, though Ms. Leslie testified that Mr. Gil-Leyva would occasionally “get angry and throw things around,” she allowed that he “never hit the children with those items.” And she proffered no evidence that Mr. Gil-Leyva’s erratic behavior would constitute a credible threat to the children’s safety upon their return.

       On appeal, Ms. Leslie argued that the children were at grave risk of psychological damage from Mr. Gil-Leyva’s violent behavior, even if that behavior posed no grave risk of physical harm to them. Though she may develop this theory in Canadian court, the record in this case provided no support for it. Ms. Leslie alleged that the children will suffer from “[w]itnessing a pattern of violence between” her and Mr. Gil-Leyva. But she simultaneously claimed that she either cannot or will not return to Canada. Presumably, that “removes any risk of the children witnessing any future abusive acts” against her. See Charalambous, 627 F.3d at 469. Moreover, though repatriation may cause “unavoidable psychological harm” to children exposed to spousal abuse in the past, see Souratgar, 720 F.3d at 104, Ms. Leslie testified that the only abuse the children ever witnessed was Mr. Gil-Leyva occasionally slapping her on her “back side very hard,” Though it was debatable that such contact would trigger grave psychological harm upon the children’s return to Canada, any such argument rests on speculation. See Souratgar, 720 F.3d at 104. Notably, neither party requested a psychological evaluation of the children to assess the effects of any of Mr. Gil-Leyva’s past abuse. The same issue arose with Ms. Leslie’s argument that the children would suffer psychological harm from Mr. Gil-Leyva spanking them or throwing things at them. Ms. Leslie adduced no expert testimony or evidence that the children suffered emotionally in the past or that they would unavoidably suffer from spanking or thrown objects in the future.

          The magistrate judge recited Ms. Leslie’s testimony regarding Mr. Gil-Leyva’s negligence in caring for the children and allowing unsafe living conditions in the home. This included testimony that Mr. Gil-Leyva left non-child-resistant bottles of prescription medications “within reach of the children”; that his prescription usage made his behavior “pretty manic”; that, on the “less than five” occasions Ms. Leslie left him alone with the children, he neglected to change their diapers; that once, he fell into a “narcotic induced sleep” during which he was “completely unaware” of the children’s needs; that he sometimes “put a child in the front seat” of his work van and once “used a tie-down strap in the back of the van for a child seat”; that he made soap and shoes and disassembled sewing machines, leaving their parts “all over the house” along with other dangerous items, including “[p]ower tools, solvents, screws, nails, glues, [and] choking hazards,” some of which the children occasionally played with; and that “it was not abnormal” for him to “leave power tools plugged in.” Ms. Leslie further testified—though the judge didn’t expressly address—that Mr. Gil-Leyva cooked solvents, pennies, and vehicle parts, producing fumes that made the home “noxious” and “uninhabitable.” Though the judge considered Ms. Leslie’s description of the home as being an “environment which may not be safe or healthy for children,” she found significant the absence of evidence that the children had suffered any harm when they lived with Mr. Gil-Leyva. (finding this “indicative that the conditions may not have been as terrible as alleged”). The Tenth Circuit agreed. If the children suffered no harm from Mr. Gil-Leyva’s alleged negligence when they were younger and more vulnerable, it could not see how they face a grave risk of harm now. And while past harm is not required to establish a grave risk of future harm, it is probative of whether the children will suffer upon returning to the same circumstances. See Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir. 2008).

          Ms. Leslie countered that a greater risk of harm now existed because she would not be in the home to “safeguard the Children,” for example, from playing with plugged-in power tools or open bottles of medications. Ms. Leslie did not demonstrate by clear and convincing evidence that these dangers present so grave and credible a threat that the children cannot safely return to Canada without her protection. See Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996) (“The person opposing the child’s return must show that the risk to the child is grave, not merely serious.”) The circumstances in which Mr. Gil-Leyva lives are not ideal for children, but the grave-risk defense “may not be used as a vehicle to litigate (or relitigate) the child’s best interests.” Danaipour v. McLarey, 286 F.3d 1, 14 (1st Cir. 2002). These are matters for child-custody proceedings in the proper forum—here, Canada.

          Because Ms. Leslie failed to clearly and convincingly establish an Article 13(b) defense to repatriation, H.F.G. and H.M.G. had to be “promptly returned” to Canada. See 22 U.S.C. § 9001(a)(4). The magistrate judge entered an order accordingly but clarified in dicta that she was only ordering the children’s return to Canada, not to Mr. Gil-Leyva’s home. She added that, as Canadian law permits, Ms. Leslie may take certain actions to oppose the children’s return to Mr. Gil-Leyva’s home; for example, Ms. Leslie may accompany the children back to Canada and reside with them, separate from Mr. Gil-Leyva, while litigating their custody in the appropriate Canadian court. Ms. Leslie argued that these suggestions amounted to unworkable “undertakings” which fail to guarantee the children’s safety. This argument was misguided. Absent a predicate finding that the children faced a grave risk of harm in Mr. Gil-Leyva’s home, the judge had no obligation to craft workable undertakings to “ameliorate the ... harm.” See Baran, 526 F.3d at 1352. Instead, the judge was required to order the children’s unconditional return to Canada, which she did.

Farr v Kendrick, 2019 WL 2568843 (D. Arizona, 2019)[Mexico] [Federal & State Judicial Remedies] [Grave risk of harm] [Petition denied]

In Farr v Kendrick, 2019 WL 2568843 (D. Arizona, 2019) the district court denied the fathers petition for return.

At the outset the court noted that ICARA proceedings must be conducted on an expedited basis and should, at least as an aspirational matter, be completed within six weeks of when the petition was filed. See, e.g., Lops v. Lops, 140 F.3d 927, 944 (11th Cir. 1998). In recognition of these challenges, the Ninth Circuit has stated that district courts should “‘use the speediest procedures’” available when adjudicating ICARA claims. Holder, 392 F.3d at 1023 . Given this backdrop, the Court concluded it was not required to strictly comply with the Federal Rules of Civil Procedure or the Federal Rules of Evidence when conducting the proceedings in this case. The Court utilized procedures that were, in its view, best suited to achieve a fair, expeditious, and just outcome.

 In 2007, Father and Mother met in Texas. At the time, Mother had a five-year-old child (Z.A.K.) from a previous relationship. In 2009, Mother became pregnant with Father’s child. However, by the time the child (a boy named K.M.K.F.) was born in December 2009, the couple had separated, with Father living in Mexico and Mother living in the United States. In 2011, Father was hospitalized in Texas due to drug-induced “psychosis,” which was caused, at least in part, by Father’s recurrent use of illegal hallucinogenic drugs.  Following this incident, Father became more religious. Father’s increasing religious devotion resulted in tension between Father and certain members of his family all of whom came to view Father’s methods for disciplining the Children (which were e rooted, in part, in Father’s religious beliefs) as abusive and inappropriate. At some point in 2012, Mother and Father began living together in Texas with K.M.K.F. In May 2014, Father and Mother got married in Texas. In February 2015, the Children were born in Texas. In August 2015, Mother, Father, Z.A.K., K.M.K.F, and the Children moved to Mexico so Father could pursue a job opportunity with a company owned by his sister. In October 2016, Mother took a trip to Texas to visit family members. During this trip, Father had a second “psychosis” episode that required medical care.  In January 2017, Mother and Father separated and began living in different residences in Mexico. Following the separation, Mother and Father shared joint custody of the Children. In July 2017, Father filed for divorce from Mother in Mexico. In April 2018, Mother filed a criminal complaint (Exhibit 94) against Father with Mexican law enforcement authorities, which resulted in the entry of a protective order against Father. Among other things, Mother asserted in this complaint that “violence physical, emotional and economic [had been] exerted on me by” Father. In June 2018, the protective order was dissolved and Father was allowed to continue exercising custody of K.M.K.F.  On August 11, 2018, Mother left Mexico with the Children and began living with the Children in Lake Havasu City, Arizona. K.M.K.F remained in Mexico living with Father. In September 2018, a Mexican court entered a divorce decree that dissolved Father’s and Mother’s marriage. In October 2018, Father married a new wife, Alejandra Rodriguez, in Mexico.

The district court found that the United States was the children’s habitual residence. The first step in the analysis is to assess whether Mother and Father “had a settled intention to abandon the United States as the children’s habitual residence in favor of [Mexico].” Holder, 392 F.3d at 1016. “Mother and Father did not have a shared, settled intent to abandon the United States as their habitual residence. The evidence pointed overwhelmingly toward the conclusion that the move to Mexico was temporary and provisional., The Ninth Circuit’s decision in Murphy supports the conclusion that there was no settled intent to abandon the United States as a habitual residence under these circumstances. 764 F.3d at 1147-48. Because Father and Mother lacked a shared, settled intent to abandon the United States as their habitual residence, the Court proceeded to the second step of the analysis, which is to “ask[ ] whether there has been sufficient acclimatization of the child to trump this intent.” Murphy, 764 F.3d at 1150. In general, the concept of acclimatization reflects the principle that, “given enough time and positive experience, a child’s life may become so firmly embedded in the new country as to make it habitually resident even though there [may] be lingering parental intentions to the contrary.” Mozes, 239 F.3d at 1078. The Ninth Circuit has cautioned, however, that “ ‘courts should be slow to infer [acclimatization],’ both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention.” Murphy, 764 F.3d at 1152-53 . Here, the question of acclimatization wasn't close. The Children were less than a year old at the time they moved to Mexico and were only three years old when they returned to the United States. They did not speak Spanish and were not enrolled in school when in Mexico. The Ninth Circuit has emphasized that it would be “practically impossible” for “a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment of the parents.” Holder, 392 F.3d at 1020-21. This rule precludes any suggestion that the Children somehow acclimatized to life in Mexico as toddlers. 

The Court noted that Article 13(b) of the Convention provides that a wrongfully-removed child need not be returned to his or her country of habitual residence if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The Ninth Circuit has emphasized that the grave-risk exception must be “drawn very narrowly” and “is not a license for a court in the abducted-to country to speculate on where the child would be happiest.” Gaudin, 415 F.3d at 1035, 1036  “Rather, the question is whether the child would suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.”  The Court concluded that mother met her burden of clearly and convincingly proving its applicability. In reaching this conclusion, the Court acknowledged there are multiple pieces of evidence that suggested Father was a loving and committed parent who did not resort to violence when angry and , Father’s past “psychosis” incidents were not terribly concerning, he’s was drug-free since 2016 and his commitment to his sobriety and children appeared to be sincere.

Nevertheless, the evidence concerning Father’s administration of corporal punishment was deeply troubling and led the Court to conclude the grave-risk exception was been satisfied. As for frequency, Mother testified that Father would spank the Children (who were between 0-3 years old during their time in Mexico) on a daily basis and would spank K.M.K.F. (who was under 10 years old) up to three times per day. Although Father gave slightly lower estimates, he still acknowledged that he was administering physical punishment many times each week. As for the manner of administration, Father initially used sections of PVC pipe and wooden dowels and later began using color-coded plastic rulers (whose colors correspond with different “sins”). The punishment was usually administered behind closed doors, with the child’s pants pulled down. During one episode, Father spanked K.M.K.F. more than 20 times. Finally, as for the risk of injury, the Children were spanked so hard that, on at least five occasions, they sustained bruises and visible raised, red marks. Father admitted that he administered an average of more than one set of spankings each day over a period of three years, which suggested he wasn't reserving punishment for major transgressions, and Mother provided testimony (which Father didn't dispute) that Father would punish the Children for bathroom “accidents,” which hardly constitutes misbehavior. The Children were very young at the time these punishments were being administered. In one of the photos depicting visible bruising, Mother estimated the child was only 20 months old. The Court questioned whether a child of this tender age can comprehend why he is being punished. Finally, although Father’s use of a ruler wasnot per se unlawful  the repeated infliction of bruises and other visible marks suggested Father exceeded the scope of reasonable discipline , causing bruising, although he denied intending to leave bruises).

Here, it was unlikely the Children would suffer grievous bodily injury if returned to Father’s care, although the multiple past instances of bruising were re troubling and unacceptable, there is a difference between bruises and more serious injuries. Additionally, although it seemed intuitively correct that exposing a child to excessive corporal punishment that is (or borders on) child abuse can't be good for the child’s psychological health, there was no expert testimony presented in this case that touched upon how the Children’s psychological health would be affected if they were returned to Father’s custody for a short period of time necessary to complete Mexican custodial proceedings (which, under Gaudin, appeared to be the only relevant timeframe). Nevertheless, the bottom line was that returning the Children to Father would create a virtual certainty the Children would be exposed to conduct that likely constituted child abuse under the law of most states. In the Court’s view, and in the absence of any case specifically holding otherwise, that simply had to constitute “a grave risk that ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Cf. Simcox v. Simcox, 511 F.3d 594, 605 (6th Cir. 2007) (although “there is no clear answer” to the “difficult question [of] precisely what level [of abuse] will expose the child to a ‘grave risk’ of harm,” most “courts that have confronted abusive situations tend to refuse to order the return of the children, at least where the abuse could be characterized as very serious”).

Quinn v Quinn, 2019 WL 2518147 (W.D. Missouri, 2019)[Japan][Habitual residence][Petition granted]

               In Quinn v Quinn, 2019 WL 2518147 (W.D. Missouri, 2019) the Court found that Respondent  wrongfully retained custody of the Child since August 2018; the Child currently resided with Respondent in Mount Vernon, Missouri; and granted the petition for return of the Child to Japan.

               Petitioner and Respondent were married in Japan on September 5, 2014. 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 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.

               The district court noted that the Hague  Convention went into effect between the United States and Japan on April 1, 2014, upon Japan’s accession to the Convention. The Hague Convention applies only if the child is abducted from one signatory nation to another. 22 U.S.C. § 9001(a)(4); Hague Convention, Art. 1(b). Here, Petitioner alleged the Child was wrongfully kept from his regular residence in Japan.

               The Court observed that in order to prevail on a petition to return a child under the Hague Convention, a petitioner has the burden to prove, by preponderance of the evidence, that the child has been “wrongfully removed or retained” from the child’s “habitual residence.” Although the term “habitual residence” is not defined in the Convention, the Eighth Circuit has found that “there is no real distinction between habitual and ordinary residence.”. A child’s “habitual residence” is determined at the time immediately prior to the incident alleged to constitute a wrongful removal or retention - the country from which the child came, not the country to which he was wrongfully removed. Silverman v. Silverman, 338 F.3d 886, 897 (8th Cir. 2003). A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995). The determination of habitual residence is primarily a fact-based determination and not one which is encumbered by legal technicalities; therefore, a court must look at the facts, the shared intentions of the parties, the history of the child’s location and the settled nature of the family prior to the facts giving rise to the request for return..

               The Court found that Petitioner had established by a preponderance of the evidence that the Child was a habitual resident of Japan. Petitioner’s Complaint provided the Child’s birth certificate showing the Child was born in Japan. The Complaint also provided the Child’s daycare records which demonstrated the Child attended daycare on a regular basis in Japan. Accordingly, the Court found that the Child’s residence immediately prior to Respondent’s wrongful retention was Japan. Petitioner proved by a preponderance of the evidence that the Child was wrongfully retained in violation of Petitioner’s custody rights under Japanese law. Both Petitioner and Respondent testified that Petitioner’s travel from Japan to the United States was intended to be a temporary visit, and at the conclusion of the visit, Petitioner and the Child would return to Japan. The Child would resume living in Japan with Petitioner after the visit concluded. Petitioner showed by a preponderance of the evidence that she was exercising her custody rights over the Child at the time of the wrongful retention.

               Respondent argued the Child would be subjected to a grave risk of harm if the Child were returned to Japan with Petitioner. However, the Court found that Respondent had not shown by clear and convincing evidence that the Child would  be subjected to a grave risk of harm if he was returned to Japan. Hague Convention, art. 13(b). Petitioner provided all mental health records for the Court’s consideration. The Court reviewed these medical records. Further, both parties presented expert testimony and lodged oral arguments as to Petitioner’s ability to manager her diagnosis as well as care for the Child. After reviewing the medical records, reviewing the filings submitted by the parties, and considering the expert’s testimony, the Court concluded that the Child would not be subject to a grave risk of harm if the Child returned to Japan with Petitioner.

x

Sundberg v Bailey, 765 Fed.Appx. 910 (4th Cir. 2019) [Sweden] [Habitual residence] [Necessary expenses] [Petition granted]

          In Sundberg v Bailey, 765 Fed.Appx. 910 (4th Cir. 2019) the district court granted the petition for return of the child to Sweden. The Fourth Circuit affirmed in an unpublished opinion.

          Lisa Bailey and Karl Sundberg married in Sweden shortly after the birth of their daughter in 2013. They divorced two years later but continued to share custody of their daughter. After the divorce, Ms. Bailey had trouble finding a suitable job and lived off child-support payments and Swedish-government aid. As a result, she sought to move back to the United States with their daughter. Mr. Sundberg opposed this move because he was unable to get a permanent U.S. visa and did not want to be separated from his child. Despite his opposition, Mr. Sundberg ultimately agreed to permit Ms. Bailey to take their daughter to America on a temporary trial basis. They memorialized this agreement in writing, providing that Ms. Bailey could take their child to the United States for “several months” beginning in August 2016.  The agreement also provided that in May 2017 they would “determine a future agreement about Lisa and [the child’s] residence and a plan for continuing shared custody of [the child].” Based on this agreement, Ms. Bailey and the child moved to Asheville, North Carolina. After the move, Mr. Sundberg maintained a relationship with his daughter over Skype and visited her in North Carolina for five weeks in December 2016. One month after Mr. Sundberg’s visit, Ms. Bailey informed him that the temporary stay would be permanent as she did not intend to move back to Sweden. In response, Mr. Sundberg demanded that Ms. Bailey return to Sweden with their child. Ms. Bailey refused. She instead went to a North Carolina state court and sought emergency custody. To prevent this, Mr. Sundberg petitioned a federal district court in North Carolina for the return of the child to Sweden so that Swedish courts could conclusively determine custody.

          The district court agreed with Mr. Sundberg. Finding that the child’s habitual residence remained in Sweden, the court ordered that she be returned there. The Fourth Circuit reviewed the court’s habitual residence finding for clear error and affirm. See Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009).

          The parties agreed that Mr. Sundberg had joint custodial rights and that he had been exercising those rights. Ms. Bailey’s only claim is that the child was not a habitual resident of Sweden at the time of retention in 2017. In this framework, the district court only had to determine whether this child was habitually resident in Sweden or the United States. The Fourth Circuit noted that from birth, the child’s “habitual residence” was Sweden. That habitual residence can change under either of two circumstances. Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005). First, habitual residence changes when parents “[share] a settled intention to abandon the former country of residence. Alternatively, it changes when there is a change in geography coupled with the passage of time “sufficient for acclimatization by the [child] to the new environment.” The first option, a shared settled intent, requires a mutual agreement to move the child permanently to the new country. This settled intent may not be shown by an agreement to move temporarily, conditionally, or on a trial basis. The district court’s conclusion that these parents lacked a shared settled intent for the child to move permanently to America was strongly supported by their written agreement. The signed agreement allowed Ms. Bailey to take the child to Asheville for “several months.” Under the agreement, the parties would re-evaluate in May 2017 to determine “a future agreement” and “plan” for the future. This agreement provided for a temporary move until the parties discussed the future in May 2017. While the agreement did not expressly state that Ms. Bailey and the child would return to Sweden, it is apparent from the agreement that the move to Asheville was not meant to be permanent.

          In addition, other circumstances reinforced the district court’s finding. While Ms. Bailey may live permanently in Sweden, Mr. Sundberg could not spend more than three months in the United States. This made it unlikely that he would allow the child’s permanent relocation. The district court’s conclusion that the agreement was temporary also found support in a welfare application Ms. Bailey submitted to the Swedish government. Before leaving Sweden, Ms. Bailey applied for Swedish welfare payments for the child. In reviewing this evidence, the district court reasonably relied on the application as reflecting the parents’ joint intent for their daughter to return to Sweden. By contrast, Ms. Bailey contended that the application merely ensured the continued payment of Swedish welfare while the child lived in America. In other words, Ms. Bailey asked the Court to find that she and Mr. Sundberg were trying to defraud the Swedish government. We hesitate to rely on her claim that the parties acted illegally. At a minimum, the district court did not err in interpreting the arrangement as supporting the temporary nature of the move. The record as a whole supported the district court’s conclusion that the parents planned to discuss in May 2017 whether the move would be permanent—a discussion that never took place, because it was short-circuited by Ms. Bailey’s unilateral decision to keep their daughter in the United States. Thus, it discerned no clear error in the district court’s finding that the parents lacked a shared settled intent to abandon Sweden as the child’s habitual residence.^*

          Turning to the second option for showing a change of habitual residence, did the child acclimatize to the United States, the Court noted that a change in habitual residence based on acclimatization requires finding that the child formed such a strong attachment that ordering her return would “be tantamount to taking the child out of the family and social environment in which its life has developed.” Maxwell, 588 F.3d at 253–54 (citing Mozes, 239 F.3d at 1081). When trying to establish acclimatization, it is not enough to show that the child’s life has “some minimal degree of settled purpose” in a new location. Maxwell, 588 F.3d at 253. Rather, “for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala, 826 F.3d at 170. This child spent the first three years of her life living in Sweden, visiting the United States for only one or two months a year. Her temporary move to Ashville lasted only nine months before the agreement expired and retention became wrongful. With family and friends in both countries, the child’s familial and social ties do not point to one country over the other. Although her inability to speak Swedish may point toward acclimatization, the district court was correct that her young age made this factor much less meaningful. See Ahmed v. Ahmed, 867 F.3d 682, 689 (6th Cir. 2017). The only other evidence that suggested acclimatization was the time spent in an American school (around nine months). Attending school for one school year did little to show that the child’s life had sufficiently “developed” in her new surroundings to make it her home. Thus, the district court did not clearly err in concluding that the child lacked the high level of attachment to the United States required to find that she had acclimatized.

          The district court’s order that Ms. Bailey pay Mr. Sundberg’s expenses totaling $20,598.98. The Fourth Circuit pointed out that when a court orders the return of a child, the court “shall order the respondent to pay necessary expenses ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3) In determining whether the circumstances of a case overcome the rebuttable presumption in favor of a fee award, the district court has limited discretion. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). An award of expenses may be “clearly inappropriate,” if for example, the respondent acted in good faith or if the award would impair the respondent’s ability to care for the child. Here, Ms. Bailey could not overcome the presumption in favor of shifting expenses. She failed to show that she acted in good faith or that any financial burden would harm the child. The district court thus appropriately awarded expenses.

x

Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019)[Honduras] [Federal & State Judicial Remedies] [Subject Matter Jurisdiction] [Asylum]

          In Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019) the Court denied Respondent’s Motion to Dismiss.

           F.O. was a minor child from Honduras. Benitez-Guillen was his mother; Ordonez was his father. All three were Honduran citizens. Ordonez and Benitez-Guillen never married but lived together in Honduras at the time of F.O.’s birth. They separated in June of 2016 but shared parental authority and custody rights over F.O. In December of 2017, Benitez-Guillen fled from Honduras with F.O. On December 22, 2017, Benitez-Guillen and F.O. reached the United States border in El Paso, Texas. The Department of Homeland Security (“DHS”) determined that Benitez-Guillen and F.O. were inadmissible to the U.S. because they lacked the necessary documents. Nevertheless, the DHS did not immediately remove Benitez-Guillen and F.O., presumably because Benitez-Guillen intended to apply for asylum in the United States. The DHS then issued Benitez-Guillen and F.O. notices to appear, paroled them, and, on December 26, 2017, released Benitez-Guillen and F.O. from custody and into the United States. On October 5, 2018, Ordonez filed a petition for the return of an abducted child under the Hague Convention. On December 3, 2018, Benitez-Guillen applied for asylum under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. Benitez-Guillen and F.O. were scheduled to appear for a preliminary hearing before the Cleveland Immigration Court in June of 2019. On February 12, 2019, Benitez-Guillen filed a Motion to Dismiss under Rule 12(b)(1), arguing that the Court lacked subject matter jurisdiction over this action because the ICARA and the INA irreconcilably conflict.

          The Court observed INA provides the foundation for immigration law in the United States, including asylum. Asylum is a form of discretionary relief under section 208 of the INA, 8 U.S.C. § 1158, that precludes an alien from being subject to removal by the Attorney General, creates a path to lawful permanent resident status and citizenship, and affords a variety of other benefits. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th Cir. 2017). The INA provides the Attorney General and the Secretary of the Homeland Security with discretion to grant asylum, 8 U.S.C. § 1158(b)(1)(A). Because asylum is a discretionary form of relief from removal, the applicant bears the burden of showing both eligibility for asylum and why the Attorney General or Secretary should exercise discretion to grant this relief. 8 U.S.C. § 1158(b)(1). To qualify for asylum under the INA, an applicant must either have suffered past persecution or have a “well-founded fear of persecution on account of race, religion, nationality, membership, in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), incorporated by 8 U.S.C. § 1158(b)(1)(B)(i). A grant of asylum “does not convey a right to remain permanently in the United States....” 8 U.S.C. § 1158(c)(2). The Court indicated that it had not yet analyzed the merits of Ordonez’s petition. Further, neither the Secretary of Homeland Security nor the Attorney General had determined whether Benitez-Guillen and F.O. qualified for asylum under the INA.

          The Court rejected Benítez-Guillen’s argument that the Court had to dismiss Ordonez’s Hague petition because the potential grant of asylum conferred a right to remain in the country regardless of any potential judicial orders under the Hague Convention.  It also rejected her argument that the Court lacked subject matter jurisdiction because the INA and the ICARA irreconcilably conflict. The ICARA, however, grants this Court original jurisdiction over Hague Convention petitions. ICARA, 22 U.S.C. § 9003(a). The INA does not strip this Court of that jurisdiction. While Benitez-Guillen correctly pointed out that the INA drastically limits judicial review of asylum determinations, see 8 U.S.C. § 1252(a)(2)(A), she did not explain how a court presiding over a Hague petition constituted judicial review of one’s asylum status. When reviewing a return of child petition, courts only determine the proper country to review the custody dispute related to an allegedly abducted child. Courts analyzing these petitions do not consider the asylum status of the parties.

          Finally, the court rejected the argument that the Court lacked jurisdiction to order the return of the child based on the pending applications for asylum. Although not ripe in this case, the only federal court to address the issue of whether a grant of asylum (under the INA) bars a district court’s order to return a child (under the ICARA) explicitly held that it does not. See Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (“[t]he asylum grant does not superceded the enforceability of a district court’s order that the children should be returned to their mother, as that order does not affect the responsibilities of either the Attorney General or the Secretary of Homeland Security under the INA.”). In Sanchez, the Fifth Circuit also found that “[n]o authority has been offered to support the argument that the discretionary grant of asylum confers a right to remain in the country despite judicial orders under this Convention.”

          All the case law that the Court  found suggested that courts maintain subject matter jurisdiction over ICARA claims regardless of the asylum status of a respondent and/or minor child. That is because no federal court has found a lack of subject matter jurisdiction when presiding over a Hague petition case that also involved asylum applications. See Sanchez v. R.G.L., 761 F.3d at 510–11; Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 2008); In re Hague Child Abduction Appl., No. 08-2030, 2008 U.S. Dist. LEXIS 97048 (D. Kan. Mar. 17. 2008); Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002); Hernandez v. Pena, No. 15-3235, 2016 WL 8275092 (E.D. La. July 20, 2016). The Court could assume that the courts in those cases had subject matter jurisdiction over the Hague petitions since “federal courts have a continuing obligation to inquire into the basis of subject-matter jurisdiction to satisfy themselves that jurisdiction to entertain an action exists.” Campanella v. Commerce Exchange Bank, 137 F.3d 885, 890 (6th Cir. 1998); see Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 593 (2004) (“by whatever route a case arrives in federal court, it is the obligation of both district court and counsel to be alert to jurisdictional requirements.”); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (“every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.”).

          The Court held that it had original jurisdiction over Ordonez’s return of child petition under 22 U.S.C. § 9003(a). The INA does not strip the Court of that jurisdiction. Therefore, the Court had subject matter jurisdiction over this case.