Nissim v. Kirsh, 2019 WL 3369450 (S.D. N.Y., 2019)[Israel] [Habitual Residence] [Consent] [Petition granted]

          In Nissim v. Kirsh, 2019 WL 3369450 (S.D. N.Y., 2019) the district court granted the petition for return. It found that the Parties’ decision to move to the United States was conditioned on the parties and child living in the same home as a family. Since Respondent eliminated that condition by unilaterally carrying off the Child to another home on the other side of the country, there was no mutual agreement that the Child’s habitual residence would change from Israel to the United States. 

          In 2008, Orna Kirsh, a dual United States and Israeli citizen, married Dror Nissim, an Israeli citizen. In 2009, their Child, a dual United States and Israeli citizen, was born in Israel and, with the exception of the occasional vacation to the United States, has lived entirely in Israel. In the Spring of 2018, Dror received a promotion that would require him to relocate from Israel to California. Dror and Orna jointly decided to move to California to pursue the promising economic opportunity. The parties agreed to travel separately to California so that Orna could prepare the living arrangements and get settled for the start of the Child’s school. Orna and the Child did, in fact, travel to California on August 1, 2018, and Dror travelled to California on August 13, 2018.On August 6, 2018, while Dror was in Israel, Orna purchased two plane tickets from California to New York for herself and the Child. Orna decided to depart for New York while Dror was in the air, on his way to California. Orna testified that, while in California, she had a “revelation” that she wanted to leave Dror and take the Child with her to New York. At no point, from the booking of the plane tickets to arriving in New York, did Orna disclose this “revelation,” or any relevant facts, to Dror. Upon landing in California, and after brief exchanges via text message and e-mail relating to pick-up at the airport, Dror arrived at the family’s California apartment only to find it empty with a note on the kitchen counter. In the note, received by Dror on August 13, 2018, Orna disclosed her decision to relocate, with the Child, to New York. Dror Nissim (“Petitioner” or “Dror”) initiated this action on December 10, 2018.

  While the Parties disputed the family’s intentions accompanying the move, the district court found that, upon relocating to California, it was the family’s intention to move and live together, and that the Parties intended on returning to Israel after their stay in California. Both Dror and Orna made preparations in accordance with that joint plan. Petitioner never sought any documentation other than a three (3) year work visa. Both Orna and Dror owned property, both jointly and separately, that they were currently renting or constructing in Israel. Both Parties left credit card accounts open in Israel. the family left items in storage that they were not bringing with them to California. They only sought temporary housing. Furthermore, the Parties discussed their intent to remain in California on a temporary basis only. Following Respondent’s arrival to California with the Child, this Court found that Orna’s plan to move the Child to New York was concocted unilaterally without significant pre-meditation. 

          The district court observed that determining a child’s country of habitual residence is a threshold issue in nearly all Hague Convention cases. Guzzo. While the Hague Convention itself does not define “habitual residence,” the Second Circuit has instructed that “courts should begin an analysis of a child’s habitual residence by considering the relevant intentions,” specifically “the intent of the person or persons entitled to fix the place of the child’s residence.” Gitter, 396 F.3d at 131. When those tasked with fixing a child’s place of residence, for instance a child’s parents, disagree on the child’s place of habitual residence, the court must “determine the intentions of the parents as of the last time that their intentions were shared. Without evidence of a “settled mutual intent” to change a child’s habitual residence, courts have been reluctant to fund such a change. Ermini v. Vittori, 2013 WL 1703590, at *12 (S.D.N.Y. July 8, 2014). In addition to shared intent, courts must look to the acclimatization of the child to her new surroundings. See Gitter, 396 F.3d at 133 (“[W]e must consider whether ... the evidence points unequivocally to the conclusion that the child has become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted.”). While a child’s acclimatization may reach a level of completeness such that removal from the new location would cause serious harm, such acclimatization is rarely on display. See Heydt-Benjamin v. Heydt-Benjamin, 404 F.App’x 527, 529 (2d Cir. 2010); Ermini, 2013 WL 1703590, at *12. Further, although the test is two-pronged, analyzing the intention of the persons entitled to fix a child’s place of residence is the most important aspect of the analysis, particularly when a child is young. See Guzzo, 719 F.3d at 110 (2d Cir. 2013).

          The court noted that the Child was born in 2009 in Tel Aviv, Israel. For all intents and purposes, the family’s entire life was in Israel, especially that of the Child. 2In October of 2018, the Parties decided to temporarily relocate, as a family, to California due to a lucrative job opportunity offered to Petitioner by his company. The evidence supported the Court’s finding that the move was intended to be temporary. Dror obtained a temporary visa and demonstrated no intention of obtaining further documentation. Correspondence with the Company indicated that the move was temporary. Thus, the Court found that no settled mutual intent existed to change the Child’s habitual residence from Israel to the United States.

           The Court the had to determine if the Child has acclimated to her new surroundings. See Heydt-Benjamin, 404 F.App’x at 529. At the time Petitioner initiated the proceedings, the Child’s unfortunate reality had taken her from her home in Israel of nine (9) years to Mountain View, California, all just to turn around and trek back to New York, New York. All of this in a matter of twelve (12) days. The Child was enrolled in three different schools in that same time frame, only two of which she actually attended; had no friends, was unfamiliar with the new environment, and was struggling with the fact that her world had been turned upside down. Thus, at the time of filing, the Child had not acclimated to her new surroundings. The district Court found that their last shared intent was for the Child’s habitual residence to be Israel. Furthermore, the evidence did not demonstrate a transition so complete as to “unequivocally point to the conclusion that the child has acclimatized to the new location and has thus acquired a new habitual residence.” Ermini, 2013 WL 1703590, at *12. Petitioner has satisfied his burden of establishing that the Child, who is a habitual resident of Israel, has been removed or retained in the United States.

          The Court found that Petitioner had custody rights under Israeli law. Legal Capacity and Guardianship Law 5728-1962 (stating that both parents are equal guardians of their children). Further, as the Child has spent her entire life with both of her parents, Petitioner was exercising those custody rights and would still be exercising those custody rights if the Child had not been wrongfully retained. 

          The district court held that two Second Circuit cases directly controlled the outcome of this case: Mota and Hofmann. Mota, 692 F.3d at 116; Hofmann, 716 F.3d at 291. In Mota, the Second Circuit considered whether the retention of a child was “wrongful” when the mother consented to the child’s removal to the United States from Mexico on the condition that she would later be able to join her child and the child’s father at a later date. While the child successfully made the journey to the United States, the mother was unable to cross the border. The child’s father then refused to return the child to Mexico and the mother filed a petition pursuant to the Hague Convention. On appeal, the Second Circuit agreed with the district court’s ruling that the mother’s consent to the child’s removal was conditioned on the family living together in the United States. Acknowledging the effect of the unmet condition precedent, the Second Circuit affirmed that the last shared intent of the mother and father was that the child live in Mexico, the state in which she was habitually resident. In Hofmann, a mother and father lived in Canada with their two sons. Hofmann, 716 F.3d at 286. Family difficulties led the couple to explore relocation opportunities to New York. Shortly thereafter, the mother took the two sons on a trip to New York as the first step in their “permanent relocation” to New York. Although the family was in the process of relocating, the district court found that any consent to the children’s removal to New York, on the part of the father, was conditioned on the family living together in New York. Although “this condition may not have been expressly stated, it was understood by the parties,” the mother in particular. Shortly thereafter, the mother decided that she was unhappy in the marriage, sought a divorce, changed her children’s names, and found a home for her and the children. The district court found that at no point did she share any of this with the father of the children. Following their last vacation as a family, the mother told the father to meet her in New York under the guise of sending his children off for the first day of school. When he arrived, however, he was served with divorce papers. On appeal, the Second Circuit agreed with the district court in finding that the mother and father “had a shared intent to relocate to New York, but the extent to which that intent was shared was limited by [the father’s] conditional agreement that the relocation was to be accomplished as a family.” Before the relocation was complete, the mother “developed the unilateral intention to reside in New York with the children but without” the father. The mother’s “decision to retain the children in New York without their father ... precluded satisfaction of the condition on which [the father’s] shared intent was based.” 

          The court found that the facts here mirrored those of both Mota and Hofmann. As in Mota and Hofmann, it was the family’s intent to move and live in California together As in Mota and Hofmann, Petitioner consented to the initial removal of the Child from Israel to the United States. However, although perhaps not expressly stated, that removal was conditioned on the family living together, in California, for a short period of time. At no point was that conditioned satisfied. Thus, the Child continued to be wrongfully retained in New York in violation of Petitioner’s custody rights.

          In 2008, the Parties signed a financial agreement that was approved by court order. In 2009, the Parties entered into an agreement outlining the scope of the custody rights of the Parties in the event of a dispute., Neither agreement operated as a waiver of Petitioner’s custody rights or his rights under the Hague Convention.The 2009 Agreement was entered into prior to the birth of the Child. The third paragraph of the 2009 Agreement states: “If either of the parties decides that they are not interested in continuing their shared life, for any reason whatsoever, it is agreed between the parties that [Respondent] will be the parent with custody, and she may leave Israel and permanently reside abroad together with the daughter who is soon to be born and/or any other child who will be born to the parties in the future in any place that [Respondent] decides at her sole discretion.” Further, the fourth paragraph of the 2009 Agreement reads:“[Petitioner] undertakes not to object to and not to impede in any way the performance of clause 3 above, and he also commits not to undertake any proceedings, legal or otherwise, whether by himself or by someone on his behalf, whether in Israel or abroad, including proceedings under the Hague Convention, and including by means of a departure prohibition order, whether against [Respondent] or against the [Child] who is soon to be born to the parties and/or any other child who will be born to the parties.”
The Court held that while these clauses might be relevant and important in Family Court in Tel Aviv, the 2009 Agreement did not constitute a waiver of any sort in this proceeding. First, although it stated that it supersedes the 2008 Agreement, the 2009 Agreement was not approved by court order. In addition, there was no indication that Dror still consented to the terms of the 2009 Agreement or that the 2009 Agreement was not modified, either orally or otherwise, at some point during the nine (9) years of marriage following its enactment. The Court found that the conduct of the Parties indicated a modification to the 2009 Agreement. From 2009 onward, the family lived together, in Israel. They did so for the entirety of the Child’s life prior to her wrongful retention. She attended school, had friends, and was, by all accounts, doing very well. The Parties provided no evidence indicating the thought of moving the Child or separating as a family. Moreover, the Parties provided no testimony pertaining to discussions or conversations relating to the 2009 Agreement following their initial reconciliation. Furthermore, the validity and relevance of the 2009 Agreement was belied by Petitioner’s surreptitious conduct in this case. According to Respondent, she was acting within the terms of 2009 Agreement when she unilaterally moved to New York with the Child. Yet she still felt the need to move her family to California under the guise of a family relocation, enroll her Child in school, send misleading texts to her husband, and conceal from Dror that her actions were appropriate in accordance with the terms of their previously negotiated 2009 Agreement. The Court was not convinced. If Orna believed the 2009 Agreement to be binding, she would likely have told Dror at some point after she came to the realization that she wanted to leave. Booking plane tickets for the precise time Dror would be in the air, sending texts insinuating her and the Child’s presence in California, and leaving a lone note in an otherwise empty apartment were actions inconsistent with the belief that her actions were protected by the 2009 Agreement. For those reasons, neither the 2009 Agreement constituted a waiver of Petitioner’s rights in the instant case.

           The district court pointed out Article 13(a) of the Hague Convention creates an exception relevant to the case. A respondent may withstand a petition to return a child if:“[T]he person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; ...”To successfully make out a consent defense, a respondent “must establish by a preponderance of the evidence that Petitioner had the subjective intent to permit Respondent to remove and retain the child for an indefinite or permanent time period.” More specifically, the key to the analysis is “the petitioner’s subjective intent” – an inquiry that includes the nature and scope of the alleged consent. Moreno v. Casilio Pena, 2015 WL 4992005, at *11 (S.D.N.Y. Aug. 19, 2015) (quoting In re Kim, 404 F.Supp.2d at 516); see Mota, 692 F.3d at 117  (“[T]he nature and scope of the petitioner’s consent, and any conditions or limitations, should be taken into account.”). In other words, “it is important to consider what the petitioner actually contemplated and agreed to ...”. Chumachenko on Behalf of P.B. v. Belan, 2018 WL 6437062 (S.D.N.Y. Dec. 7, 2018). Here, the only evidence indicating consent was the 2009 Agreement prev. Orna presented no evidence that any consent allegedly bestowed by the 2009 Agreement was still valid in the instant situation. Respondent provided no indication that the Parties discussed the 2009 Agreement at any point following the birth of the Child. Further, even if Dror did consent to the removal of the Child, he did not consent to removal in such a nefarious manner. All of the testimony indicated that the move to California was a family affair, and that Respondent’s “revelation” did not occur until she was in California – long after the decision to move had been made. Validity of the 2009 Agreement aside, it could not be the basis for consent to the particularized and deceitful events that transpired in this case. Thus, Respondent had not satisfied her burden, and consent was not a defense to the Petition. 

Vasquez v Acevedo, 2019 WL 3310334 (6th Circuit, 2019) [Colombia] [ Habitual Residence] [Petition denied]

In Vasquez v Acevedo, 2019 WL 3310334 (6th Circuit, 2019) the Sixth Circuit affirmed an order of the district court which denied the petition of Colombian father Edison Alberto Carvajal Vasquez (“Carvajal”) for the return of his one-year-old son, TCG, to Colombia.

Carvajal and Gamba were the unmarried parents of minor child TCG. All three were Colombian citizens. TCG was born in Medellín, Colombia, on October 6, 2014. Until the summer of 2016, TCG lived with Gamba in an apartment in Colombia owned by Gamba’s parents. Carvajal lived with his own parents, at least during the week. By the summer of 2016, Carvajal and Gamba had developed a plan for the family to travel to the United States. Carvajal and TCG were able to obtain tourist visas, but Gamba’s multiple visa applications were unsuccessful. Gamba then changed tactics, traveling to Mexico in July 2016 and hiring “coyotes” to smuggle her across the United States border. On August 7, she was discovered and detained by immigration authorities. Gamba claimed that Carvajal planned and funded the scheme, including wiring money to the coyotes in Mexico. Carvajal dissembled when asked about the wire transfers to Mexico and whether he knew about Gamba’s plan to cross the border, but he admitted that he at least had “suspicions” about her intentions. When Gamba was detained, Carvajal wired about $3,000 to Gamba’s sister, Kelly Chambers, to hire an immigration attorney for Gamba and to help her post bond. While Gamba was in immigration custody, on August 26, 2016, Carvajal continued on with the plan and flew with TCG to the home of Gamba’s sister and brother-in-law, Kelly and David Chambers, in Tennessee. He then returned to Colombia two days later, leaving TCG in their care. Gamba was released on bond about a month later, on September 30, and flew to Tennessee on October 13. She and TCG lived at the Chambers’ home for the next several months.  Carvajal came to Tennessee again on December 19, 2016, and stayed with Gamba and TCG at the Chambers’ home for a few weeks. On December 11, shortly before Carvajal arrived, Gamba claimed she received a call from a married Colombian woman named Luz Elena stating that Elena and Carvajal were in a relationship. In contrast, Elena testified that she had never been in a relationship with Carvajal and claimed that romantic emails between the two were planted by Gamba. When Carvajal arrived in December, he and Gamba reconciled, and Carvajal proposed marriage, which Gamba accepted. Carvajal left Tennessee on January 9, 2017, and, when he arrived in Colombia, he gave away Gamba and TCG’s possessions, according to Gamba and her mother. Carvajal claimed that TCG’s toys are still stored at his house.  After several months in Tennessee, Gamba traveled with TCG to Houston, Texas, for a February 2 immigration hearing. They stayed in Houston for about five months. TCG’s tourist visa expired sometime in February. Also, during February, Gamba broke off her engagement with Carvajal, apparently because she was again contacted by Luz Elena. On February 24, 2017, Carvajal filed a criminal complaint in Colombia against Gamba for the crime of arbitrary exercise of custody of an underage child. Gamba and TCG returned to Tennessee at the beginning of July, where they rejoined the Chambers’ household. Gamba filed an application for asylum for herself and TCG in the spring of 2018. Carvajal filed a petition under the Hague Convention in Tennessee on February 9, 2018, almost a year after Gamba broke off their engagement, alleging that Gamba had wrongfully retained TCG in the United States. 

The district court denied Carvajal’s petition, finding that TCG had not been wrongfully retained in the United States in February 2017. The court determined that the United States was TCG’s habitual residence on that date because the last shared intent of Carvajal and Gamba was that TCG live in the United States. In the alternative, the court concluded that the United States was TCG’s habitual residence because TCG had acclimatized to the country.

The Sixth Circuit affirmed. It found that the district court determined that the date of retention was February 24, 2017, which was when Carvajal filed a criminal complaint with Colombian authorities. Neither party challenged this date on appeal, so it adopted it as well.

The Court noted that the crux of the case was determining TCG’s habitual residence immediately prior to February 24, 2017. It pointed out that it used two standards to determine habitual residence. “The primary approach looks to the place in which the child has become ‘acclimatized.’” Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018). Under the acclimatization standard, “the court must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich v. Friedrich (“Friedrich I”), 983 F.2d 1396, 1401 (6th Cir. 1995). This approach is “generally preferred” because it preserves the child’s access to “her family and social environment.” Ahmed v. Ahmed, 867 F.3d 682, 688 (6th Cir. 2017). But it had also recently acknowledged the difficulty of applying the acclimatization standard to “especially young children who lack the cognizance to acclimate to any residence. In such cases, it looks to the parental-intent standard, that is, “the parents’ last ‘settled mutual intent’ for where their child would live.” Ahmed, 867 F.3d at 687 (quoting Gitter v. Gitter, 396 F.3d 124, 133, 135 (2d Cir. 2005)). The petitioner bears the burden to show habitual residence by a preponderance of the evidence under both the parental-intent and acclimatization standards. Id. at 692.

In this case, the district court determined that the parental-intent standard was more appropriate for TCG’s case, because TCG was only two years and four months old on the date of the allegedly wrongful retention. The court then concluded that TCG’s habitual residence was the United States, based on Carvajal and Gamba’s last shared intent.

The Court noted that the standard of review to apply to the district court’s choice of habitual-residence standard appeared to be unsettled under its precedent. It held that it did not need not resolve the issue because it found that the district court’s reliance on the parental-intent standard was not erroneous under either de novo review or a more deferential standard.

Under Ahmed, “it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence.” 867 F.3d at 690. How can a district court tell when a child lacks the necessary cognizance? In some cases, a child is so young or so old that no analysis of the child’s cognizance is necessary, by dint of common sense. The oldest age at which a court in this circuit had categorically rejected the acclimatization standard appeared to be fourteen months. On the other side of the equation, the Third Circuit has held that a child who is four years old “certainly has [the] ability” to “form meaningful connections with the people and places he encounters each day.” Whiting v. Krassner, 391 F.3d 540, 550–51 (3d Cir. 2004). Between those ages, however, lies the gray area of a child’s toddler years, during which time a child at some point develops sufficient cognizance to acclimatize to a country. Faced with such a case, a court must determine whether the evidence shows that a child is cognizant enough to acclimatize, which is most naturally proved by evidence that a child was actually acclimatizing, whether to the child’s current residence or to any past residences. Under its precedent, factors that tend to show acclimatization to a country include participation in academic activities, social engagements, and sports programs; appropriate fluency in the local language; and the formation of “meaningful connections with the people and places” of the country. See Robert, 507 F.3d at 996 (citing Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006)). Therefore, children who are cognizant enough to acclimatize to a country will be able to participate in a variety of acclimatizing activities, to form a sense of routine and environmental normalcy in a country, and to form relationships with people and places in that country. C.f. Whiting, 391 F.3d at 550.


In making its decision that the acclimatization standard was “of limited utility” in TCG’s case, the district court considered both TCG’s age and evidence of TCG’s actual acclimatization. TCG was two years and four months old on the date of wrongful retention. The record supported the district court’s determination that the parental-intent standard was more appropriate in TCG’s case. Gamba’s brother-in-law David testified that TCG would not be old enough to attend the “head start program” in their local Tennessee school district until the fall of 2018, about a year and a half after the date of the allegedly wrongful retention. Gamba’s sister Kelly Chambers testified that TCG did not begin to say words until December 2016, just two months before the date of retention. Facts like these show that it was not unreasonable to find that TCG’s youth and corresponding cognitive limitations would prevent him from systematically forming “ ‘meaningful connections with the people and places’ in a country.” Ahmed, 867 F.3d at 689 (quoting Robert, 507 F.3d at 996).  In sum, while TCG’s attendance in school or day care and in infant swim classes may be relevant to TCG’s ability to acclimatize, such attendance alone, without evidence that TCG was actively acclimatizing, did not persuade the Court that the district court was incorrect. Thus, under either de novo review or a more deferential standard, it found the district court correctly determined that the parental-intent standard was more appropriate for TCG’s case.

The district court found that the last shared intent of Carvajal and Gamba was that TCG live in the United States. The standard of review for the district court’s determination of habitual residence under either the parental-intent standard or the acclimatization standard is unambiguous: the court’s findings are reviewed for clear error. Taglieri, 907 F.3d at 405; Ahmed, 867 F.3d at 686; Robert, 507 F.3d at 995. Clear error review is “highly deferential,” and the district court must be affirmed “unless the fact findings ‘strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.’” In reviewing the district court’s conclusion, “[w]e must trust those with a ring-side seat at the trial to decide whose testimony is most credible and what evidence is most relevant.” Id. at 411. Credibility determinations were especially important in this case, where the bulk of the evidence took the form of testimony by Carvajal, Gamba, and their relatives and acquaintances. The district court’s opinion noted that weighing that evidence was “exceptionally difficult” because of “basic inconsistencies” in the testimony and because all but one witness testified by translator, and many by telephone. On the whole, the district court found Gamba’s story to be “inherently more consistent and plausible,” and her and her witnesses to be “more credible.” 

The Court observed that under the parental-intent standard, when the child is not cognizant enough to acclimatize in a particular country, the district court looks to “the parents’ last ‘settled mutual intent’ for where their child would live.” As the Ninth Circuit pointed out in Mozes [v. Mozes], 239 F.3d [1067] [ (9th Cir.2001) ], “[d]ifficulty arises, of course, when the persons entitled to fix the child’s residence no longer agree on where it has been fixed.” 239 F.3d at 1077. In such a case, if “the representations of the parties cannot be accepted at face value, ... courts must determine [habitual residence] from all available evidence.” Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009) (quoting Gitter, 396 F.3d at 135). In other words, the court must look to “external indicia” of the parents’ intent. Taglieri, 907 F.3d at 417 (Moore, J., dissenting). Under the parental-intent standard, Carvajal bore the burden of proving, by a preponderance of the evidence, that Carvajal and Gamba’s last shared intent was that TCG live in Colombia. The district court concluded that the parents’ last shared intent was that TCG live with Gamba in the United States: “Although it is unclear whether Carvajal ever really intended to move permanently to the United States, the court finds that he knew that Gamba intended to do so and that she intended to have her son with her.” The court based its conclusion on its factual findings that Carvajal voluntarily brought TCG to the United States to stay in the country with Gamba, that Gamba had always intended for TCG to live with her in the United States, and that Carvajal agreed with Gamba’s intentions until Gamba broke off their relationship in February 2017. Although Carvajal testified that he had always intended to bring TCG back to Colombia, the court found no evidence of any such plan. The Sixth Circuit held that the district court’s conclusions were not clearly erroneous. Gamba testified that she planned to stay in the United States permanently. Gamba’s desire to move to the United States, whether legally or illegally, was evidenced by her multiple unsuccessful visa applications and ultimate plan to cross the border covertly. Importantly, Carvajal knew about that desire when he brought TCG to the United Sates and left him in Tennessee. Carvajal almost certainly financed Gamba’s trip by paying “coyotes” to smuggle her across the Mexican border. Carvajal’s aunt, Diana Vasquez, testified that Gamba had long been “bedazzled” by the idea of living in the United States, so Gamba’s desire was clear to those around her. Even after Carvajal proposed marriage in December, he testified that Gamba told him she still wanted to remain in the country. Finally, when Carvajal testified that he thought TCG would be returning to Colombia in February 2017, he claimed that it was Gamba’s sister Kelly, and not Gamba herself, who would accompany TCG. Yet despite knowing Gamba intended to remain in the United States with TCG, Carvajal twice left TCG in the United States—first in August 2016 with Gamba’s sister, then in January 2017 with Gamba.

As for Carvajal’s alleged plans to bring TCG back to Colombia in January or for Kelly to bring TCG back in February before the expiration of his visa, the district court concluded that there was no evidence to support the existence of either plan. Viewing the record as a whole, it was clear from Carvajal’s actions that he acquiesced in Gamba’s plans for TCG to grow up in the United States. It did not find clear error in the district court’s determination that Carvajal and Gamba’s last shared intent was that TCG live in the United States with Gamba. Carvajal’s petition was therefore properly denied.

Because the parental-intent standard was the more appropriate standard for TCG’s case, and because the district court’s findings under that standard were not clearly erroneous, the Court did not not address the district court’s alternative findings under the acclimatization standard.

Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) [Italy] [Grave risk of harm] [undertakings]

        In Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) Respondent-Appellant Narkis Aliza Golan (“Ms. Golan”) appealed from an order granting Petitioner-Appellee Isacco Jacky Saada’s (“Mr. Saada”) petition for the return of the parties’ minor child, B.A.S., to Italy. the United States Court of Appeals, agreed with the District Courts habitual residence determination but held that it erred in granting Mr. Saada’s petition because the most important protective measures it imposed were unenforceable and not otherwise accompanied by sufficient guarantees of performance. The District Court’s March 22, 2019 order was v affirmed in part and vacated in part and remanded for further proceedings concerning the availability of alternative ameliorative measures.

  On June 13, 2014, Ms. Golan, a United States citizen then living in New York, and Mr. Saada, an Italian citizen and resident, met at a wedding in Milan, Italy. Approximately two months later, Ms. Golan relocated to Milan and moved in with Mr. Saada. The parties were married on August 18, 2015, and Ms. Golan became pregnant shortly thereafter. The couple’s only child, B.A.S., was born in Milan in June 2016. The couple “fought frequently,” and “Mr. Saada physically, psychologically, emotionally and verbally abused Ms. Golan.” Mr. Saada yelled at Ms. Golan, called her names, slapped her, pushed her, pulled her hair, threw a glass bottle in her direction, and, during a conversation with Ms. Golan’s brother, threatened to kill her. These incidents, many of which occurred in the presence of B.A.S., “were not sporadic or isolated ... but happened repeatedly throughout the course of the parties’ relationship.” Mr. Saada and Ms. Golan continued living together in Milan after B.A.S. was born. They secured for B.A.S. an Italian passport, medical coverage, identification cards, and a certificate of residence, and enrolled B.A.S. in a local daycare. With the exception of several trips abroad, B.A.S. lived continuously in Milan for the first two years of his life. In July 2018, Ms. Golan traveled with B.A.S. to the United States to attend her brother’s wedding. After the wedding, Ms. Golan elected not to return to Italy and moved with B.A.S. to a confidential domestic violence shelter in New York. In Fall 2018, Mr. Saada filed a criminal complaint against Ms. Golan and initiated civil proceedings, including custody proceedings, in Italy. He also commenced this action under the Hague Convention. 

        The District Court first concluded that Italy was B.A.S.’s habitual residence for the purposes of the Hague Convention. The District Court acknowledged that Ms. Golan had repeatedly expressed an intent to return to the United States, and that Mr. Saada was aware of this intent. In the District Court’s view, however, the totality of the circumstances, and, in particular, Ms. Golan’s conduct, “established B.A.S. as a[n] habitual resident of Italy.”  The District Court determined that Ms. Golan had established that repatriating B.A.S. to Italy would expose him to a grave risk of harm. It concluded that exposing B.A.S. to severe and continuing domestic violence of the type documented in this action could have significant adverse effects on his psychological health and development. 

        Nevertheless, the District Court held that a suite of conditions, or “undertakings,” would “sufficiently ameliorate the grave risk of harm to B.A.S.” and granted Mr. Saada’s petition subject to those conditions. The undertakings included, among others, requirements that Mr. Saada (1) give Ms. Golan $30,000 before B.A.S. is returned to Italy, for housing, financial support, and legal fees; (2) stay away from Ms. Golan; and (3) visit B.A.S. only with Ms. Golan’s consent.

The Second Circuit observed that in determining habitual residence, courts in this Circuit “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,” considering both “actions” and “declarations.” It has also cautioned that, at bottom, this inquiry “is designed simply to ascertain where a child usually or customarily lives.” It saw no error in the District Court’s conclusion that Italy was B.A.S.’s country of habitual residence. It agreed with the District Court that the parties’ actions demonstrated that Italy, where B.A.S. spent almost the entirety of the first two years of his life, was the country where he “usually or customarily lives.” Accordingly, it affirmed the District Court’s habitual-residence determination.

        Ms. Golan challenged the District Court’s decision to grant Mr. Saada’s petition notwithstanding its determination that repatriating B.A.S. would expose him to a grave risk of harm. The Second Circuit indicated that even where the abducting parent establishes that repatriating his or her child would expose the child to a grave risk of harm, a district court “is not necessarily bound to allow the child to remain with the abducting parent.” In exercising their discretion in such cases, district courts must “take into account 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 a child’s repatriation.” Insofar as certain of these measures might be undertaken by courts in the country of habitual residence, then “the exercise of comity that is at the heart of the [Hague] Convention” requires us “to place our trust in th[ose] court[s] ... to issue whatever orders may be necessary to safeguard children who come before [them].” However, “reviewing courts are free to enter conditional return orders” but “retain no power to enforce those orders across national borders.” In those instances, in which our courts lack jurisdiction to redress non-compliance, “even the most carefully crafted conditions of return may prove ineffective in protecting a child from risk of harm.” It concluded that  in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other “sufficient guarantees of performance.” The Court found that many of the undertakings the District Court imposed were unenforceable because they need not—or cannot—be executed until after B.A.S. was returned to Italy. This included several conditions that, under the circumstances, were essential to mitigating the grave risk of harm B.A.S. faced, namely, promises by Mr. Saada to stay away from Ms. Golan after she and B.A.S. returned to Italy and to visit B.A.S. only with Ms. Golan’s consent. The District Court’s factual findings provided ample reason to doubt that Mr. Saada would comply with these conditions. Under the circumstances, it was not convinced that these particular undertakings were sufficient to mitigate the undisputed grave risk of harm that B.A.S. faced if returned to Italy. It vacated the District Court’s order insofar as it granted Mr. Saada’s petition subject to the conditions enumerated therein.

        The Court found it appropriate to remand for further proceedings concerning the availability of alternative measures. It directed that on remand, the District Court must determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance. In doing so, the District Court may consider, among other things, whether Italian courts will enforce key conditions such as Mr. Saada’s promises to stay away from Ms. Golan and to visit B.A.S. only with Ms. Golan’s consent. It did not think that international comity precluded district courts from ordering, where practicable, that one or both of the parties apply to courts in the country of habitual residence for any available relief that might ameliorate the grave risk of harm to the child. So long as the purpose of such an order is to ascertain the types of protections actually available, and the district court does not condition a child’s return on any particular action by the foreign court, there is little risk that this “practice would smack of coercion of the foreign court.” Here, the District Court has already found that Italian courts are authorized by Italian law to enter “criminal and civil court orders of protection” and “orders of supervised visitation during the pendency of custody proceedings.” Although the Italian courts had not entered any such orders to date, this might be attributable in part to the parties’ failure to apply for relief, in the ongoing custody proceedings or otherwise. It directed that on remand, the District Court may consider whether it is practicable at this stage of the proceedings to require one or both of the parties to do so. The District Court may then take into account any corresponding decision by the Italian courts in determining whether there are sufficient guarantees of performance of protective measures that will mitigate the grave risk of harm B.A.S. faces if repatriated. As an initial matter, the District Court can attempt to revise certain of the undertakings it imposed in a manner that would render them directly enforceable, for example, by requiring Mr. Saada to comply with the condition before B.A.S. is repatriated. In addition, the District Court can use its “broad equitable discretion” to “request [] the aid of the United States Department of State, which can communicate directly with” the government of Italy to ascertain whether it is willing and able to enforce certain protective measures. Finally, the District Court can solicit from the party’s additional evidence concerning whether, and, if so, to what extent, Mr. Saada had undertaken to abide by any of the currently unenforceable conditions. 
 
The Second Circuit summarized its holdings with regard to undertakings as follows: (1) In cases in which a court has determined that repatriating a child will expose him or her to “a grave risk of harm,” unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other sufficient guarantees of performance. (2) Because the record before the District Court did not support the conclusion that there exist no protective measures sufficient to ameliorate the grave risk of harm B.A.S. faces if repatriated, remand for further proceedings is appropriate. 32) Where, as here, the safety of a minor is at risk, the District Court, if it deems practicable, may direct one or both of the parties to petition Italian courts for the imposition of any appropriate protective measures. The District Court may take into account any corresponding decision by the Italian courts in determining whether to issue an order of return.

Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019)[Mexico] [Age & Maturity Defense] [Petition denied]

In Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019) Petitioner Gabriel Alfaro Gutierrez requested that this Court enter an Order directing that the Parties’ minor child, G.A.A.Q., be returned to Mexico. He alleges that the child’s mother, Brenda Janeth Quintino Sandoval, wrongfully removed the child from Mexico sometime between October 27, 2017 and early November 2017. During the course of the trial, the Court took testimony from G.A.A.Q. in chambers, out of the presence of his parents and their attorneys. 

Mr. Gutierrez and Ms. Sandoval married in 2003, and lived in Monterrey, Mexico. Their son, G.A.A.Q., was born in November 2003, and would be sixteen in November 2019. The Parties separated in 2004 and never lived together again. They divorced in 2012. G.A.A.Q.  always lived with Ms. Sandoval. Following the Parties’ separation, by agreement, Mr. Gutierrez had visitation with G.A.A.Q; however, Mr. Gutierrez spent more time with G.A.A.Q. than was actually set forth in the Parties’ agreement. In August 2017, G.A.A.Q. told his father that he did not want to have any more visitation with him. G.A.A.Q. did not like the way that his father asked him questions about Ms. Sandoval’s personal life. Mr. Gutierrez and Mr. Gutierrez’s mother (G.A.A.Q.’s grandmother) also made G.A.A.Q. feel uncomfortable with comments about his weight and the food that he was eating. Ms. Sandoval brought G.A.A.Q. to the United States in November 2017, to live with her, her new husband, and G.A.A.Q.’s half-sibling. After consulting with her Mexican lawyer, Ms. Sandoval was under the impression that she could legally bring G.A.A.Q. to the United States. She did not make any effort to contact Mr. Gutierrez to let him know that she was moving G.A.A.Q. out of the country or to seek his input on the decision. Mr. Gutierrez had no idea where his child was, and went through an extended period, lasting until December 2018, of trying to find G.A.A.Q. Mr. Gutierrez was notified by G.A.A.Q.’s school that his son had been withdrawn from the school. A letter from the school shows the date of withdrawal as October 27, 2017. Mr. Gutierrez desperately searched for G.A.A.Q., and eventually concluded that G.A.A.Q. was in Nashville, Tennessee. He filed his Petition for Return of Minor Child to Petitioner on October 10, 2018. 

The district court found that G.A.A.Q. would be sixteen in November 2019. He attended a local Nashville high school, and recently completed ninth grade with all A’s. He had many friends at school. He got along well with his mother, stepfather, and half-brother, with whom he lived. He did not keep in touch with anyone in Mexico and did not want to return to Mexico.

The Court found that petitioner met his burden to prove a prima facie case of wrongful removal under the Hague Convention and ICARA. The Court found that Ms. Sandoval had not met her burden of proof to establish the well-settled defense or the grave risk of harm defense. 

The Court observed that Article 13 of the Convention gives the Court the discretionary power to refuse return of the child where the child objects and is of sufficient age and maturity that the objection should be taken into account by the Court. The Court must first determine whether the child has sufficient age and maturity, and then evaluate the child’s objection and determine that it is not the result of “brainwashing of the child by the alleged abductor.” 51 FR 10494-01, Hague Int’l Child Abduction Convention, Text and Legal Analysis, III(I)(2)(d); see also Neumann v. Neumann, 310 F. Supp. 3d 823, 838-39 (E.D. Mich. 2018). The explanatory report on the Convention states that “it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.’” Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law ¶ 30, in 3 Acts and Documents of the Fourteenth Session 426, 433 (1980); see also Neumann, 310 F. Supp. 3d at 839. The Court found that such was the case here. G.A.A.Q. would be 16 in just over four months. The Court spoke with him and took his testimony in camera, out of the presence of either parent or their attorneys. During its interview with G.A.A.Q., the Court found him to be alert, respectful, and intelligent. He exhibited an understanding of the witness oath, which he took, and then testified forthrightly and freely, answering the Court’s questions thoughtfully. Given that G.A.A.Q. was almost 16, and that he exhibited appropriate maturity in his interview and testimony, the Court found that he had the age and maturity required to have his views on the subject of return taken into account. G.A.A.Q. was very clear that he objected to returning to Mexico. He testified specifically as to aspects of return to Mexico that he objected to. He testified that he was no longer in touch with anyone in Mexico and that he would have to start a whole new life there. He further expressed that the thought of going with his father was very stressful, as he has come to dislike spending time with Mr. Gutierrez for specific reasons, including perceived criticisms of his appearance and Mr. Gutierrez’s practice of asking him questions about Ms. Sandoval’s personal life. He also felt that life was Mexico was dangerous. 
The Court also found that G.A.A.Q.’s testimony was not unduly influenced by Ms. Sandoval. The Court found that this defense has been established by a preponderance of the evidence. The establishment of the child maturity or child objection defense did not end the Court’s inquiry. A court retains the discretion to return a child, despite the establishment of an affirmative defense, if return would further the aims of the Convention. Friedrich II, 78 F.3d at 1067. In this case, the further required review did not alter the result. 

Capalungan v Lee, 2019 WL 3072139 (S.D. Ohio, 2019)[Australia] [Habitual Residence] [Petition denied]

In Capalungan v Lee, 2019 WL 3072139 (S.D. Ohio, 2019) on April 26, 2019, the United States Magistrate Judge issued a Report and Recommendation recommending that Petitioner’s Petition for the Return of Child to Australia be denied. The matter was before the Court on Petitioner’s Objections to the Report and Recommendation. The Court considered the matter de novo and denied the petition for return. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

Petitioner, Goldi Y. Capalungan, and Respondent, Emmanuel R. Lee, were the biological parents of EZL who was born on August 31, 2012 in the Philippines. At that time, Respondent was living in the United States. Respondent had limited contact with EZL in the years immediately following EZL’s birth. The parties were never married and did not have any custody agreement. In January 2016, Petitioner and EZL moved to Australia. Respondent had no contact with EZL when he lived in Australia. In January 2017, Petitioner obtained new employment in Australia and she would have to participate in an extended training program. The parties agreed that EZL could visit Respondent in the United States during Petitioner’s training period. The parties expected the training to last about six months, the same length of time as EZL’s tourist visa. Petitioner and EZL traveled to the United States in late February 2017. Petitioner stayed with Respondent for approximately two weeks, but then returned to Australia for her training. After Petitioner’s departure in March 2017, EZL adjusted well to life in the United States by spending time with family, attending church and school. Shortly after Petitioner returned to Australia, her relationship with Respondent began to deteriorate. Petitioner testified that the parties’ original plan was for EZL to stay in the United States while she completed her training in Australia. Petitioner further testified that the agreement changed in that EZL would be returned after Petitioner’s training was complete and after EZL was granted permanent residency in the United States, which she believed would be completed before she was done with her six-month training. Although Respondent conceded that “initially” EZL “was to be returned to Australia” in August 2017, at another point; he insisted that the agreement had always been that EZL would reside in the United States until he received citizenship here. Despite EZL obtaining his United States citizenship, Respondent never returned him to Australia as agreed. 

To enroll EZL in school, the parties executed a Shared Parenting Plan that provided that both parties were “residential parents and legal custodians” of EZL and that Respondent was “designated the residential parent” of EZL “for school purposes.” In December 2017, Petitioner traveled to the United States to take EZL back to Australia. Respondent refused to give her EZL’s passport, and she was unable to bring EZL home with her. Before Petitioner returned to Australia, Respondent agreed to return EZL when his U.S. passport was issued. On January 8, 2018, shortly after Petitioner returned to Australia, EZL received his permanent resident card. Towards the end of January, Respondent informed Petitioner that he would not return EZL to Australia when EZL’s passport was issued. Petitioner contacted the State Department’s Office of Children’s Issues to enroll in the Children’s Passport Issuance Alert Program (“CPIAP”) and put a hold on EZL’s United States passport. In response, Respondent burned EZL’s expired Filipino passport and sent Petitioner photos of the burnt passport. Petitioner subsequently withdrew EZL from CPIAP, which allowed his application for a passport to be processed.  

EZL’s United States passport was issued on February 16, 2018. Respondent repeatedly refused to return EZL to Australia. Although Respondent had previously represented that the parties’ Shared Parenting Plan would only be used to enroll EZL in school, to justify his refusal to return EZL, he insisted that it gave him custody of EZL and therefore he was under no obligation to return EZL to Petitioner as the parties had agreed. On July 13, 2018, the United States government issued EZL’s certificate of citizenship, which indicated that EZL became a citizen of the United States on January 6, 2018. Respondent did not return EZL to Australia.  
Petitioner filed the Petition before the Court on October 23, 2018. 


The District Court observed that there was no objection regarding the Magistrate Judge’s findings that Respondent refused to return EZL to Australia based on the agreement of the parties. Nor was there any objection to the finding that the alleged wrongful retention began in late December 2017. The date of the wrongful retention is important because it “is used to fix the time period available for assessing what country is properly the child’s habitual residence.” McKie v. Jude, No. CIV.A. 10-103-DLB, 2011 WL 53058, at *6 (E.D. Ky. Jan. 7, 2011); see also Panteleris v. Panteleris, 601 F. App’x 345, 349 (6th Cir. 2015) The Magistrate Judge then determined based on the fact that EZL was five years old in December 2017, that the Sixth Circuit instructs courts to apply the acclimatization standard. Petitioner objected to this decision and argued that the Magistrate Judge should have applied the shared parenting intent standard to determine EZL’s habitual residence at the time of the wrongful removal.

The district court noted that the Sixth Circuit in Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017), offers two approaches to identify a child’s habitual residence. The primary approach looks to the place in which the child has become “acclimatized.” The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to “shared parental intent.” Id. at 689; see also Robert v. Tesson, 507 F.3d 981, 992 n.4 (6th Cir. 2007).

Petitioner asserted in her objections that the acclimatization standard should not be the only standard applied, rather the Court should also apply the shared parental intent standard. In Ahmed, the Sixth Circuit emphasized the importance of applying the shared parental intent of the parties in cases involving young children who lack the cognizance to acclimate to any residence. The Court stated that “[t]his is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case.” Ahmed, 867 F.3d at 690. The Court was sympathetic to Petitioner in that the record showed that the intent of the parties was to return EZL to Australia. However, the Court agreed with the analysis set forth in detail in the Report and Recommendation that courts in the Sixth Circuit generally apply the shared parental intent standard to children who are two years old or younger at the time of the wrongful retention. 

The record was replete with instances in which Respondent was evasive and misleading.2 By February 2018, Respondent no longer hiding the fact that he had no intention of returning EZL to Australia stated, “[y]ou should have realized [sic] [EZL] is here and I have the edge...” The Magistrate Judge aptly acknowledged the consequences of Respondent’s behavior: “[b]y refusing to return EZL to Australia consistent with the parties’ agreement, Respondent manufactured a favorable status quo that he would undoubtedly rely on in any future custody proceedings between the parties. But that status quo was contrary to the parties’ shared intent, which the acclimatization standard does not permit courts to consider in resolving the habitual residence question in cases like the one before the Court here.”  The Court found that the Sixth Circuit law instructs this Court to apply the acclimatization standard and therefore the Court agreed with the Magistrate Judge’s conclusion that the acclimatization standard had to be applied in this case.

Petitioner objected to the Magistrate Judge’s recommendation that EZL’s habitual residence had changed from Australia to the United States. Petitioner’s primary argument was that Respondent failed to comply with the parties’ agreement to return EZL to Australia. The evidence supported Petitioner’s contention that EZL’s stay was only intended to be temporary in nature and the parties agreed he would be returned to Australia. However, the appropriate question as set forth in the Report and Recommendation was “whether in late December 2017, EZL had been physically present in the United States for an amount of time sufficient for acclimatization and whether the United States had a degree of settled purpose from his perspective.” In the ten months that EZL had been in the United States, he attended school, church, played on a basketball team, and participated in activities with family and friends. The court pointed out that ten months is a considerable amount of time to form bonds with family and friends considering he was only five years old. Relying on the testimony and Sixth Circuit precedent, the Magistrate Judge correctly determined that the United States was EZL’s habitual residence in late-December 2017. (citing Jenkins, 569 F.3d at 556-57 (holding that a six-month stay in a new country sufficed to create a new habitual residence, in light of continued schooling and other regular activities in the new country); Robert, 507 F.3d at 997 (holding that a ten-month stay in one country with sustained schooling and family excursions sufficed to create a new habitual residence, but that a three-week stay in another country did not)). Accordingly, the Court agreed with the findings set forth in the Magistrate Judge’s Report and Recommendation that Petitioner had not met her burden to demonstrate by a preponderance of the evidence that Australia was EZL’s habitual residence in late December 2017.

Grau v. Grau, 2019 WL 3063994 (11th Cir., 2019)[Germany] [Habitual residence] [Petition denied]

In Grau v. Grau, 2019 WL 3063994 (11^th Cir., 2019) the Eleventh Circuit affirmed an order of the district court which denied Petitioner Roberto Grau’s petition for the return of his four-year-old twin sons to Germany from Florida. 

Roberto and Helen, citizens of Germany, were married there in 2012. Their twin sons, also German citizens, were born in Germany in 2014. Soon after, Roberto accepted a temporary work assignment in Massachusetts, and the entire family moved to the United States in May 2015 on L-1 and L-2 visas.  Apart from a three-month trip to Germany in late 2015 to visit family and attend to U.S. immigration issues, the Graus lived together in the United States until November 2016. At that point, Roberto’s work assignment ended and the family returned to Germany. Helen and the children then vacationed in Spain for three or four weeks. In February 2017, Roberto received another work assignment in Massachusetts and the family returned to the United States, again on L visas. Nonimmigrant L visas for “intracompany transferees” may be issued upon an employer’s petition, based on the employee’s executive or managerial capacity or specialized knowledge, to an employee and his spouse and children in order to work for the employer in the United States temporarily. See generally 8 U.S.C. § 1101(a)(15)(L); 8 C.F.R. § 214.2(l). The visa is valid only for the period of the employer’s need, which may be up to three, five, or seven years. 8 C.F.R. § 214.2(l)(7)(i)(A)(2), (l)(15)(ii). When that work assignment ended in March 2018, the Graus decided to continue pursuing their “dream” of living in the United States long-term. They agreed that Helen and the twins would move to Florida—where they had some close friends—and start a cleaning business, in support of an application for an E-2 investor visa. Nonimmigrant E-2 visas for “treaty investors” may be issued to an alien and his spouse and children “solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.” 8 U.S.C. § 1101(a)(15)(E)(ii); see generally 8 C.F.R. § 214.2(e). The investor must intend to depart the United States upon the expiration of his treaty investor status. 8 C.F.R. § 214.2(e)(5). The initial admission is for not more than two years, with an unspecified number of two-year extensions possibly available. Id. § 214.2(e)(19), (e)(20).

 Roberto, meanwhile, would return to Germany and work to support the family and the fledgling business. He planned to join them in the United States if his career in Germany did not work out. In July 2018, Helen and the twins returned to Germany for her consular interview. By this point the Graus had invested about $100,000 in Helen’s business. The family lived together at a friend’s house for six weeks while they waited to hear if the visa would be approved. When it was, Roberto signed an open-ended travel consent form, and Helen and the twins returned to Florida in August 2018. The children attended school, participated in activities, and made friends in Florida. In October 2018, Helen filed for divorce and informed Roberto via telephone and email. She moved the children to an undisclosed address, and Roberto began child custody proceedings in Germany. In February 2019, Roberto filed the instant petition for the return of the children to Germany.

The district court conducted a bench trial in which it heard two very different versions of the Graus’ intentions for their family. Both Roberto and Helen testified that it was always their dream to live and raise their family in the United States. The district court found that the children’s habitual place of residence was, since 2015, the United States, and that their habitual residence was not changed back to Germany in July 2018. In addition to crediting Helen’s testimony about her continuing intent to build a life in Florida, the court also noted that the children still lived there and did not have a permanent residence in Germany.

Roberto appealed.   The Eleventh Circuit observed that habitual residence is not defined in the Hague Convention. It has approved a definition of habitual residence that looks simply to settledness in a place, not permanence. “[A] habitual residence is established when ‘the purpose of living where one does have a sufficient degree of continuity to be properly described as settled.’” Pfeiffer v. Bachotet, 913 F.3d 1018, 1023–24 (11th Cir. 2019). Furthermore, to alter a child’s habitual residence, “the parents must share a ‘settled intention’ to leave the old habitual residence behind,” and “an ‘actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized’ must occur.” Id. at 1024.

The sole question on appeal was whether the Graus’ children were habitual residents of Germany in October 2018, when Helen filed for divorce and retained the children in Florida. If not, Roberto’s petition for return of the children to Germany was due to be denied.

The district court first found that “it is clear that the Children’s habitual place of residence was the United States” since their move here as infants in 2015 and until July 2018. The Eleventh Circuit decided only that, as of March 2018, the children were habitually resident in the United States. By that time, Helen and the children, with Roberto’s full assent, had moved to Florida, started a business, and applied for long-term E-2 investor visas that would allow them to remain in the United States without being subject to the timetables of Roberto’s employer. Both Roberto and Helen in their testimony affirmed this plan as realizing their mutual “dream” of raising the twins in the United States. This arrangement reflected a settled purpose for the children to live in the United States. And the children’s lives in Florida from this point had indicia of continuity and settledness, including the Graus’ investment of $100,000 in Helen’s business, signing a long-term apartment lease, and enrolling the children in school and extracurricular activities. Moreover, the children were removed from the German government’s residency registration system in 2016 and were never reregistered. It agreed with the district court that the children were purposefully “settled” in the United States in March 2018.

The next issue presented was whether the children’s habitual residence changed to Germany before Helen retained them in the United States in October 2018. In order for a child’s habitual residence to change, the parents must share an intent to abandon the previous residence. Ruiz, 392 F.3d at 1252). “The ‘unilateral intent of a single parent’ will not suffice to change a child’s habitual residence.” Calixto v. Lesmes, 909 F.3d 1079, 1084 (11th Cir. 2018). In the absence of a shared intent to change a child’s habitual residence, the court may find a change in habitual residence “if the objective facts point unequivocally to a new habitual residence.”  Helen brought the children to Germany in July 2018, but the question was whether she and Roberto shared an intent that the children abandon their habitual residence in the United States at that time or thereafter. The record evidence about Roberto and Helen’s intentions for the children in July 2018 was mixed. Roberto testified that he and Helen agreed that she would return with the children to Germany after winding down her business in Florida. Helen, by contrast, testified that Roberto never asked her to stay in Germany, and that she never wavered from the dream she had shared with him to raise the twins in the United States. The district court credited Helen’s testimony, finding that she “never intended for her or the Children to move back to Germany.” It noted that her testimony was corroborated by the evidence of her continued investment in her business and the family’s life in Florida, explaining that she would not have needed to continue pursuing an E-2 visa if she was planning to close the business. On this central disputed fact, the district court was entitled to deference. In the absence of compelling evidence to the contrary, it did not find clearly erroneous the district court’s finding of historical fact, based on its credibility assessments, that there was no shared intent to change the twins’ habitual residence to Germany.

Roberto’s argument on appeal took issue with the district court’s failure to find that the Graus’ shared intent to make the United States the children’s place of habitual residence was conditional. He argued that “his consent to the children living in the United States ... was always conditioned on the family staying together as one unit and that it was voided when Helen filed for divorce, terminating the condition of family togetherness. Thus, he argued, the children’s place of habitual residence was always Germany. Roberto pointed to ICARA cases in which the Court has said that the parents’ conditional relocation will not change a child’s country of habitual residence if the condition is not realized. See Calixto, 909 F.3d at 1089–91. The Eleventh Circuit noted that in these cases, the Court looked closely into the record to determine whether there was a real shared intent to change the child’s habitual residence, or else merely a conditional one. That determination in these cases has hinged mainly upon the credibility of the parents’ testimony in the district court, and, to a lesser extent, upon the related objective evidence about the family’s housing, work, and travel arrangements. The district court’s credibility determinations have been central to any finding that shared intent to change a child’s habitual residence was conditional. Here, the district court’s credibility determinations precluded a finding that the Graus’ shared intent to make the United States the children’s place of habitual residence was conditional. The district court apparently did not find credible Roberto’s testimony that Helen had agreed to return with the children to Germany. Instead, the district court credited Helen’s testimony about the Graus’ shared intent when it found that Helen “never intended for her or the Children to move back to Germany.”  Roberto’s written consent for the children to return to the United States in August 2018 bore no return date or condition.

Because it we concluded that the district court did not clearly err with respect to its shared-intent findings, it did not reach the other two elements required to change a child’s habitual residence: actual change in geography and adequate time for acclimatization. See Pfeiffer, 913 F.3d at 1024. Nonetheless, it noted that both of those elements also supported the district court’s findings about the Graus’ shared intent.

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.