Malmgren v Malmgren, 2019 WL 5092447 (E.D. North Carolina, 2019)[Sweden] [Necessary expenses, costs and fees] [Clearly inappropriate] [motion denied]

In Malmgren v Malmgren, 2019 WL 5092447 (E.D. North Carolina, 2019) petitioner’s motion for an award of attorneys’ fees was denied.

In June 2018, petitioner filed a petition for the return of his minor child. The child was born to petitioner and respondent in 2009 in Sweden, and was a citizen of both Sweden and the United States. In June 2017, respondent took the minor child to the United States, with petitioner’s permission, and then informed him that they would not be returning. In October 2018, following a hearing the Court denied the petition for return, finding that the child was well-settled in the United States. The Fourth Circuit reversed. In February 2019 the district court vacated its October 2018 order and granted the petition for return. Petitioner moved for an award of attorneys’ fees under 22 U.S.C. § 9007(b)(3) and Article 26 of the Hague Convention. 

Petitioner requested an award of attorneys’ fees and expenses in the total amount of $16,681.09 under ICARA, 22 U.S.C. § 9007(b)(3). The Court observed that in relevant part, the statute provides that: “Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.”  It noted that the statutory language implements Article 26 of the Hague Convention, requiring federal courts to award “necessary expenses,” which includes “court costs” and “legal fees,” unless respondent “establishes that such order would be clearly inappropriate.”

The Court found that awarding attorneys’ fees and expenses to respondent would be clearly inappropriate. While the Fourth Circuit has not specifically defined “clearly inappropriate” in the ICARA context, other circuits have established a two-factor test: (1) whether respondent had “a good faith belief that her actions in removing or retaining a child were legal or justified” and (2) respondent’s ability to pay and whether an award of fees would impair her ability to care for her child. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018) (citing Ozaltin v. Ozaltin, 708 F.3d 355, 375-76 (2d Cir. 2013)); see also Norinder v. Fuentes, 657 F.3d 526, 536-37 (7th Cir. 2011).  

The Court found that Respondent brought the minor child to the United States to visit her family and initially planned to stay for four weeks, with petitioner’s permission. Respondent then informed petitioner that her plans had changed and that she and the minor child would be staying in the United States until Labor Day in September 2017. Respondent and her child had previously stayed in the United States on multiple occasions for months at a time, apparently without objection from petitioner. Petitioner objected to respondent then informing him that she planned to stay with the child in the United States for a full year, but petitioner did not testify that he told respondent he would initiate judicial proceedings to return the child to Sweden.

Respondent argued that she did not believe she was in violation of the law by bringing the child to the United States. “Although a mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award, is appropriate.” Ozaltin, 708 F.3d at 375 (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)). In Rath, the Eleventh Circuit determined that the respondent could not establish that she had acted in good faith because soon after coming to the United States, she had filed suit to change the custody order and indicated her awareness that she was in violation of the existing custody agreement. 898 F.3d at 1311. Here, by contrast, respondent never filed for a custody order in the United States. The Court found that respondent removed the minor child from Sweden in good faith.

The Court also found that respondent demonstrated that she lacked the ability to pay an award of costs and fees and still assist in her minor child’s care. Respondent declared that she earned $12 per hour as a customer service representative, amounting to pre-tax annual income of approximately $24,960. Respondent declared that she lived with her 83-year-old grandmother and contributed $300 per month to household expenses.  She did not have any checking or savings accounts in the United States, and her Swedish bank accounts had a combined total of approximately $51.  Respondent also had over $36,000 in debt, including student loan debt and credit card debt.  Now that petitioner had sole custody of the minor child in Sweden, respondent had to relocate to Sweden in order to petition the Swedish courts to grant her visitation or partial custody of her child. Other courts have previously held that if an award of fees and costs “would impose such a financial hardship that it would significantly impair the, respondent’s ability to care for the child,” such an award might be clearly inappropriate. Rath, 898 F.3d at 1311; see also Rydder v. Rydder, 49 F.3d 639 (8th Cir. 1995) (reducing fees and costs due to respondent’s “straitened financial circumstances”). Given respondent’s limited assets and substantial debts, the court found it would be clearly inappropriate to compel her to pay an additional $16,681.09, and doing so would make it difficult for respondent to contribute to her minor child’s care.

Hadir v Vazquez, 2019 WL 5061068 (District of Columbia, 2019)[France] [Habitual Residence] [Wrongful retention] [Petition granted]

In Hadir v Vazquez, 2019 WL 5061068 (District of Columbia, 2019) the district court granted the Petition of Sami Abou-Haidar, who resided in Paris, France, for the return of the party’s daughter to France. 

Petitioner and Respondent were married in Paris, France, in October 2013. Their daughter, E.A.-H.S., was born in 2014 in Paris, France. Petitioner was a medical doctor who provided house-call services, through a French company called SOS Médecins. He was licensed to practice medicine only in France. Respondent was a Ph.D.-level economist.  Since 2013, she worked primarily as an associate professor at the Université d’ Evry Va’ d’ Essonne, located just outside of Paris. Since the birth of their daughter, the parties lived primarily in Paris, with intermittent periods of stay in Barcelona, Spain. Until June 30, 2018, the family resided in a rented apartment, located at 255 Rue Saint-Jacques, in Paris. E.A.-H.S. attended preschool nearby. The parties had an active social life in Paris, often entertaining friends at their home.  The parties owned an apartment in Barcelona, Spain, in which they have stayed for extended periods of time, sometimes for several months out of the year, typically during the spring and summer months. During these periods, Petitioner would travel back and forth to Paris for work. E.A.-H.S. would attend school when in Barcelona. According to Petitioner, E.A.-H.S. had more school friends and was involved in more activities in Paris, than in Barcelona.  In January 2018, Respondent was offered the opportunity to serve as a consultant with the International Development Bank (“IDB”) in Washington, D.C. Petitioner supported Respondent’s pursuit of the opportunity. He agreed to structure his schedule in such a way that he would, for ten to twelve consecutive days, work in Paris and live in a small apartment in Paris that he had purchased before marriage. For the remaining days of the month, he would live with his family in Washington, D.C. The court found that the parties agreed to move their family to Washington, D.C., for at least 18 months—the term of Respondent’s contract with IDB—but left open the possibility of staying for a longer period. According to Respondent, the initial contract that IDB offered her was for an 18-month term, which could be renewed only after a six-month period of separation. IDB offered Respondent a contract that would allow for successive renewals, which she accepted. Respondent began an 18-month term with the IDB on July 1, 2018. There was unrefuted evidence that Petitioner contemplated staying in Washington, D.C., for up to three years.  At the same time, the court did not credit Respondent’s testimony that she and Petitioner agreed to leave Paris behind for good and intended to make Washington, D.C., their new home.  

Once in Washington, D.C., the parties settled in the Woodley Park neighborhood and rented an apartment. They hired a real estate agent to look for a property to buy in that neighborhood. Petitioner was actively involved in the parties’ search for a property to purchase in Washington, D.C., including the type, location, price, financing, touring, and eventual selection of properties. The parties enrolled E.A.-H.S. at Oyster Adams, a Spanish bilingual elementary school, for the 2018-2019 school year. E.A.-H.S. was now comfortable speaking English, made friends at school, attended birthday parties and other social outings, and participated in various activities, like soccer. Respondent made friends, as well, living in Washington, D.C.  By December 2018, six months after their move to Washington, D.C., the parties’ marriage began to show strain. In April 2019, unbeknownst to Petitioner, Respondent met with a family-law attorney. She then filed on May 2, 2019, a Complaint for Custody in the Superior Court of the District of Columbia (the “D.C. Superior Court”). The Complaint demanded primary physical custody of E.A.-H.S. “with reasonable rights of visitation to Defendant, pendente lite and permanently” and “joint legal custody, pendente lite and permanently” with Petitioner.  On May 7, 2019, Respondent told Petitioner that she wished to separate, and then had Petitioner served with the D.C. Superior Court Complaint for Custody. The parties met at a park near the apartment on May 10, 2019, to discuss the family’s situation.  There, according to Petitioner, Respondent told him that she wished to remain in Washington, D.C., with their daughter and that the two of them would not be returning to France. Although Respondent denied that this conversation took place, the court credited Petitioner’s testimony on this point, as it was consistent with Respondent’s demand for permanent primary physical custody of their child and her later decision to opt into a second 18-month contract with IDB.  On May 23, 2019, Petitioner answered and filed a counterclaim in response to Petitioner’s Complaint for Custody. In his counterclaim, Petitioner demanded “joint physical and legal custody” of E.A.-H.S. The D.C. Superior Court stayed the child-custody matter pending resolution of this case.

This case involved two disputed questions. First, did Respondent wrongfully retain E.A.-H. S and, if so, on what date did that retention occur? Second, what was E.A.-H.S.’s habitual residence on the date of purported wrongful retention? The parties did not dispute whether, if wrongfully retained, Petitioner’s custody rights under French law would be violated. They would be. Nor did they contest whether Petitioner was exercising his custody rights at the time of wrongful retention. He was. Finally, Respondent did not assert any affirmative defense under the Convention. 

The court found that Respondent wrongfully retained E.A.-H.S. on May 7, 2019, when she served on Petitioner the Complaint for Custody that she filed in the D.C. Superior Court. Before that date, the parties enjoyed joint physical and legal custody of their child. Respondent’s Complaint for Custody sought to alter the status quo, by asking that she be awarded permanent primary physical custody of E.A.-H.S. She also advised Petitioner three days later that she would not be returning to Paris with their daughter. Respondent’s initiation of a legal action for greater custody rights, plus her announcement that she would not return to Paris with E.A.-H.S., constituted a wrongful retention under the Convention. See Mozes v. Mozes, 239 F.3d 1067, 1069–70, n.5 (9th Cir. 2001) (determining that wrongful retention occurred when the respondent asked a domestic court to grant custody of children).

The date of retention did not extend beyond May 23, 2019, the date on which Petitioner answered and filed a counterclaim in response to Respondent’s Complaint for Custody. The Third Circuit has defined the “retention date” as “the date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof.” Blackledge v. Blackledge, 866 F.3d 169, 179 (3d Cir. 2017); see also Marks on behalf of SM, AM, and BM v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017) Petitioner’s counterclaim sought to maintain joint physical and legal custody of E.A.-H.S. This counterclaim was a clear assertion of his custody rights and signaled that he did not consent to allowing his daughter’s “continued habitation with the custodial parent.” May 23, 2019, therefore was the latest date of wrongful retention.

The district court rejected Respondents argument that Petitioner’s claim arose under the rubric of an “anticipatory retention,” which, according to Respondent, federal courts have not recognized. She asserted that the court cannot fix a wrongful retention date, because “the wrongful retention had not taken place yet, and may not ever take place, especially given the ongoing custody and visitation proceedings in the District of Columbia.” The Petition is “anticipatory” in the sense that the date until which the parties agreed to remain in Washington, D.C., had yet to arrive—at the earliest, December 31, 2019, the date Respondent’s first contract ends with IDB. Thus, she maintained, the petition wa not ripe for consideration. 

One of the primary cases upon which Respondent relied, the Ninth Circuit’s decision in Mozes, is to the contrary. Mozes is clearly an “anticipatory retention” case. Much like here, in Mozes, the mother and father had agreed that the children would remain in the United States for a time certain—there, fifteen months— “though they disagree[d] as to what understanding existed beyond that.” See 239 F.3d at 1069. However, after a year in the United States, the mother sought dissolution of the marriage and custody of the children in California state court. The Ninth Circuit had no difficulty identifying the date of wrongful detention as “the moment ... when [the mother] asked the Los Angeles County Superior Court to grant her custody of [the children].” Here. Respondent sought to alter the parties’ status quo as it related to custody of their daughter when she sought primary physical custody in D.C. Superior Court. That was the earliest date of wrongful retention. The court was not aware of any case that requires a petitioner to wait to sue for custody until the date on which the parties agreed to allow their child to remain in the United States passes, when the custodial parent seeks to assert dominant custody rights, physical or legal, over the child. Tellingly, other circuit courts have found acts of wrongful retention to precede the agreed-upon date for a child to remain in the United States. See e.g., Blackledge, 866 F.3d at 179 (rejecting “the notion that the original agreement for a longer period vitiated the noncustodial parent’s ability to clearly communicate her desire to regain custody of the child” and recognizing that a parent may “accelerate a retention date by” withdrawing consent to have the child remain with the custodial parent); Marks on behalf of SM v. Hochauser, 876 F.3d 416, 417 (2d Cir. 2017) (holding that mother’s email declaring she would not return to Thailand three days before planned return was wrongful retention date); Darin v. Olivero-Huffman, 746 F.3d 1, 10–11 (1st Cir. 2014) (finding wrongful retention occurred when respondent “made clear” to petitioner that child would permanently reside in United States).  
The only case on which Respondent relied to support her position, the First Circuit’s decision in Toren v. Toren, wass distinguishable. In Toren, the parents, already divorced, had agreed to allow the children to remain in the United States until July 21, 2000. See 191 F.3d 23, 25 (1st Cir. 1999). In 1997, just prior to the father’s scheduled visit to the United States, the mother filed a verified complaint in state court asking to modify the terms of visitation. See id. at 26. The state court agreed to do so and granted the mother additional custody rights. See id. The First Circuit found that the mother had not wrongfully retained the children, because her complaint only sought modification of the parents’ visitation agreement and did not manifest an intent not to return the children after the agreed-upon date of July 21, 2000. Here, by contrast, Respondent did not merely ask for a change in visitation but sought primary custody of the minor child—a change in the status quo that, if granted, would have allowed Respondent to establish Washington, D.C., as the child’s habitual residence. Moreover, the court credited Petitioner’s testimony that Respondent expressed her intention not to return to France. Respondent notably renewed her IDB contract for another 18 months after filing for primary physical custody and apparently did so without consulting Petitioner. These acts were not consistent with an intent to return to France. This case therefore was different than Toren.

The court turned next to deciding E.A.-H.S.’s “habitual residence” as of the date of unlawful retention. Following the Ninth Circuit’s decision in Mozes, the majority of circuit courts define habitual residence in terms of “shared parental intent,” and secondarily consider whether the child has become “acclimatized.” Blackledge, 866 F.3d at 180; see also Mozes, 239 F.3d at 1074–75; Taglieri, 907 F.3d at 407 (noting that “[e]very circuit to consider the question [of habitual residence] looks to both standards”). The Sixth Circuit is the only circuit that gives greater priority to acclimatization, but it does so only in cases involving older children. See Taglieri, 907 F.3d at 407–08 (describing the acclimatization inquiry as “the primary approach” and the “shared parental intent” inquiry as a “secondary” and “alternative” approach used when young children are “incapable of acclimating”); see also Koch v. Koch, 450 F.3d 703, 713 (7th Cir. 2006) (“In the case of young children, the court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child’s habitual residence.”).

The question of shared parental intent focuses on the parents’ “settled purpose” as to a child’s place of residence. Mozes, 239 F.3d at 1074. The inquiry is necessarily fact intensive, and trial courts are advised to look beyond the parents’ testimony and to consider the record as a whole. See Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009) (“In cases where there is a dispute regarding a child’s habitual residence, ‘the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence.’ ” (quoting Gitter, 396 F.3d at 135)). In the end, “[h]abitual residence is intended to be a description of a factual state of affairs ....” Mozes, 239 F.3d at 1081. The parties agreed that, in determining habitual residence, the court must first ask whether the parents “form[ed] a settled intention to abandon the one left behind.” Courts have cautioned that, “in the absence of settled parental intent, courts should be slow to infer from [the child’s contact in the new country] that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. That is especially true when the child’s move is intended to be for a “specific, limited duration.” Blackledge, 866 F.3d at 180–81. In light of these principles, the court held that as of May 2019, the parties’ shared settled intent was not to abandon France as E.A.-H.S.’s habitual residence in favor of the United States. The child’s habitual residence was France before the family relocated to the United States in the summer of 2018 for Respondent’s détachement with IDB. 

It was clear, based on the full record, that the parties did not leave France in a manner that supported a shared intent to relocate indefinitely to the United States. Ample evidence supported this conclusion. First, Petitioner remained in France to work and took no steps to obtain a medical license or employment in the United States. Second, Respondent did not dissociate herself from her university position, instead she took leave akin to a sabbatical. Though Respondent explained that she maintained her university position to continue her pension eligibility, that action only reinforced the parties’ intent to return to France. Third, the parties did not dispose of valuable personal property, such as furniture and appliances. Instead, they rented a storage unit in the same building as their former shared home in Paris. Finally, the parties did not communicate an intention to leave permanently to family and friends. The absence of a going-away party or a similar acknowledgement of permanent departure is telling. 

The court recognizes that habitual residence can change even when the minor child is moved only for a definite period of time with the intent to return to the original country. See, e.g., Blackledge, 866 F.3d at 182–83; Mozes, 239 F.3d at 1077. However, the cases that have found a settled intent to change habitual residence when the child’s move was for a “specific, limited” duration are distinguishable. This case instead closely resembled the facts of Mozes.

Having determined the parties’ habitual residence to be France as of May 7, 2019, the court briefly discussed acclimatization. The court gave this factor less weight. See Mozes, 239 F.3d at 1079. The parties here did as any responsible parent would do: they took steps to create a normal life for E.A.-H.S. in Washington, D.C. But E.A.-H.S., age four, had lived in the United States for only about ten months when Respondent filed a custody action that sought to alter the status quo. Evidence of acclimatization over such a short period of time for such a young child was not enough to overcome the parties’ lack of intent to abandon France as their daughter’s habitual residence. See Papakosmas v. Papakosmas, 483 F.3d 617, 626 (9th Cir. 2007) (noting that “in the absence of settled parental intent, courts should be slow to infer from such contacts [in the new country] that an earlier habitual residence has been abandoned” (internal citation and quotation marks omitted)); Sundberg, 765 Fed. Appx. at 914 (finding that “[a]ttending school for one school year does little to show that the child’s life has sufficiently ‘developed’ in her new surroundings to make it her home”).

Adkins v Adkins, 2019 WL 4933571 (N.D. California, 2019) [Switzerland] [Habitual residence] [Wrongful retention] [Petition granted]

In Adkins v Adkins, 2019 WL 4933571 (N.D. California, 2019) the district court granted the petition filed by Petitioner Artemiz Adkins for the return of her daughter A.F.A. to Switzerland.

Petitioner and Respondent married in 2005, and lived together in Scottsdale, Arizona. In 2014, while they were living in Arizona, their daughter, A.F.A., was born. In 2016, Petitioner and Respondent decided to move to Switzerland. They had been discussing the move for several years, following a joint trip to Switzerland in 2012. Petitioner and Respondent researched their move extensively, including quality of life, education, healthcare, and pensions in Switzerland.  

The family then prepared for the move: Petitioner, who had owned a clinical dental practice in Arizona, sold the practice in January 2017.The entire family then took a trip to Zurich, from March to June 2017, to explore possible employment opportunities. Petitioner signed a contract accepting full-time employment in July 2017. Petitioner was set to begin work in November 2017. Upon the family’s return to Arizona, they lived in temporary housing and Petitioner sought temporary work as she was the primary breadwinner at the time. But Petitioner canceled her professional liability insurance in July 2017. The family also either sold or packed most of their belongings. In late October 2017, Petitioner, Respondent, and A.F.A. moved to Switzerland. Through Petitioner’s position with the Straumann Group, the parties and A.F.A. obtained Swiss “B permits,” which allowed them to reside in Switzerland. The permits may be renewed annually. After five years, permit holders may apply for permanent residency. During the parties’ first three months in Switzerland, they lived in temporary corporate housing through the Straumann Group, but they signed a lease on a home in Basel, Switzerland on January 27, 2018. The lease has no fixed term; neither Petitioner nor Respondent has cancelled the lease; and it remains in effect. 

From November 2017 to December 2018, A.F.A. lived in Switzerland continuously with Petitioner and Respondent. She attended daycare in Basel, Switzerland, beginning in January 2018. She had a network of friends from daycare and through Petitioner’s colleagues, who have children of similar ages. Petitioner and Respondent also anticipated sending A.F.A. to a German-speaking kindergarten in Basel beginning in 2019. Thus, in June 2018, Petitioner and Respondent filled out a language competency questionnaire. The Basel Department of Education directed the parties to confirm A.F.A.’s attendance at a German-speaking institution from August 2018 to June 2019 in preparation for kindergarten.  During the evidentiary hearing, Respondent raised for the first time that he and his family only moved to Switzerland on a trial or other temporary basis, and that the move was conditioned on him finding employment once there. The Court did not find Respondent’s testimony on this issue credible. Rather, he acknowledged that the family moved to Switzerland in 2017, and he moved back to the United States only after it was clear that he and Petitioner would not reconcile. cf. Mozes, 239 F.3d at 1076 (acknowledging circumstances where “the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move”). The Court found that the parties intended to move to Switzerland permanently.

In December 2018, before A.F.A. began kindergarten, Petitioner and Respondent separated. Petitioner and Respondent discussed how they would manage sharing time with Petitioner and Respondent determined that A.F.A. would reside in Switzerland with Petitioner, where A.F.A. would go to school as planned. Respondent, on the other hand, intended to return to California, where he grew up and where his family still lived, to live and find work. 

Respondent left Switzerland voluntarily on January 31, 2019. To make the transition easier on A.F.A., Petitioner and Respondent shared time roughly equally with their daughter before she was scheduled to begin school, with A.F.A. traveling back and forth from Switzerland to the United States. Respondent acknowledged this arrangement was only temporary: once A.F.A. began school in Switzerland, she would not be able to travel as readily. As late as August 2019, Petitioner believed her agreement with Respondent remained intact, and Respondent would return A.F.A. to begin school in Switzerland by August 12. At that time, A.F.A. had been visiting Respondent since July 2019 in the United States. On August 2, 2019, Petitioner asked when Respondent would bring A.F.A. back to Switzerland for kindergarten, and he gave no indication that he disagreed with A.F.A. beginning school on August 12. He reassured Petitioner, explaining “I’m working on everything honey.”  Only later did Respondent explain to Petitioner that he had changed his mind about where A.F.A. should live and go to school. Respondent retained an attorney who helped him (1) file for dissolution of marriage in California on August 1, 2019; and (2) explain to Petitioner via email dated August 5, 2019, that Respondent would not return A.F.A. to Switzerland unless Petitioner agreed not to put her in any formal schooling there. A.F.A. remained with Respondent in California from early July 2019. Petitioner, in turn, filed petitions with a Swiss court, on August 13 and 16, 2019, seeking various relief prior to filing this petition pursuant to the Hague Convention. 

The Court observed that the Ninth Circuit has created a four-step inquiry to determine whether a wrongful removal or retention has occurred: “(1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?” Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).


There was no dispute that Respondent retained A.F.A. during her visit to the United States in August 2019. The critical question in this action was A.F.A.’s habitual residence as of August 2019. See Asvesta v. Petroutsas, 580 F.3d 1000, 1017 (9th Cir. 2009) (identifying “habitual residence” as “perhaps the most important inquiry under the Convention”). Petitioner contended that A.F.A.’s habitual residence was Switzerland. Respondent, on the other hand, suggested that A.F.A.’s habitual residence was the United States because he had no settled intent with Petitioner to change A.F.A.’s residence to Switzerland when they moved there in 2017. Having examined the facts for evidence of shared settled intent on the part of A.F.A.’s parents regarding her residence, the Court found that January 2019 was the last time that Petitioner and Respondent had a shared, settled intent regarding A.F.A.’s habitual residence. At that time, although separated, Petitioner and Respondent intended that A.F.A. would reside in Switzerland and attend school there.

To the extent that Respondent attempted to argue, in the alternative, that A.F.A. had somehow acclimatized to the United States such that its washer current—or second—habitual residence, the Court was not persuaded. Acclimatization occurs only in a limited set of circumstances. First, “[w]hen a child has no clearly established habitual residence elsewhere, it may become habitually resident even in a place where it was intended to live only for a limited time.” Mozes, 239 F.3d at 1082. Second, a child’s residence may change by the passage of time “if the child’s prior habitual residence has been effectively abandoned by the shared intent of the parents.”  In the absence of either of these circumstances, however, “a prior habitual residence should be deemed supplanted only where “the objective facts point unequivocally” to this conclusion.” To satisfy this test, the Court must be able to “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child ‘out of the family and social environment in which its life has developed. Respondent testified that he believed A.F.A. was “thriving” in the United States, learning to swim and to ride a bike, for example. See Tr. at 95:9–97:14. Respondent also emphasized that she is close to Respondent’s family, who live in California. Id. at 112:13–113:2. However, even accepting this as true, the Court cannot find that the months A.F.A. has spent in the United States and these positive experiences render her life “so firmly embedded in the [United States] as to make [her] habitually resident” there. Mozes, 239 F.3d at 1078. The Court was also cognizant of the inherent risk in inferring that a child’s habitual residence has changed based on acclimatizing to the country in which she is being retained. 

Respondent did not appear to contest that, if Switzerland was A.F.A.’s habitual residence, then he has wrongly retained her under the Hague Convention. Nor could he. At the time Respondent retained A.F.A. in the United States, he and Petitioner were still (and remain) legally married. Respondent proffered no basis for the Court to find that Petitioner and Respondent did not have joint custody of A.F.A. when he retained her in the United States. And the Ninth Circuit has held that Petitioner’s burden in proving that she was exercising parental rights is “minimal.” Asvesta, 580 F.3d at 1018. As the Court of Appeals noted, “requiring a petitioning party to meet a high bar in demonstrating the actual exercise of custody rights contradict[s] the Convention’s objective to reserve custody determinations for the country of habitual residence.” Id. The Ninth Circuit has explained: [I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. Once it determines that the parent exercised custody rights in any manner, the Court should stop – completely avoiding the question whether the parent exercised the custody rights well or badly. There was no basis for the Court to conclude that Petitioner did not exercise her custody rights. 

Having found that A.F.A.’s habitual residence is Switzerland, the Court concluded that Respondent’s retention of A.F.A. in the United States is wrongful, and the Court granted the Petition.

Shah v Federbush, 2019 WL 5060496 ( S.D. N.Y., 2019)[Thailand][Habitual residence][Petition denied]

In Shah v Federbush, 2019 WL 5060496 ( S.D. N.Y., 2019)  the district court  dismissed the petition of Nishita Shah (“Shah”) against her husband, Max Federbush (“Federbush”), for an order returning JF to Thailand.  

Petitioner and Respondent moved to New York from Thailand with the Child in August 2017 and separated ten months later. On May 29, 2019, the proceeding was commenced.

Shah, a citizen of Thailand, Canada, and an overseas citizen of India, went to college in the United States and spent a year after she graduated from college in California. Although she was a Managing Director of her family’s Thailand-based business “GP Group,” she had limited decision-making and managerial powers, and her financial resources, beyond a modest salary, were controlled by her father. Federbush was a citizen of the United States. He worked in private equity and real estate, and he has had several business ventures in Asia. He also had close ties to a family business in New York, with which he has been intermittently involved for twenty years. 

The parties met in Thailand in 2008, married ceremonially in Turkey in 2010, and married legally in Thailand in 2012. After their ceremonial marriage, Shah became pregnant with JF. A few months before the Child was due in spring 2012, the couple temporarily relocated from Thailand to Canada. When JF was a few months old, the couple returned to Thailand, where the Child received his Thai citizenship. The couple lived in Bangkok for the next five years. Around 2013, Shah quit sleeping in the same bed as Federbush, and the couple argued frequently. 

Notwithstanding their marital difficulties, in 2016 the parties began to contemplate moving to the United States. They turned their sights to New York. Federbush told Shah that he wanted JF to experience living in the United States, spend time with Federbush’s aging parents, and attend Federbush’s primary school alma mater, the Buckley School (“Buckley”). Shah traveled to New York in early 2016 to view apartments for purchase. Later that summer, when the family was visiting New York, they decided to apply for JF to attend Buckley. They interviewed at Buckley in August after preparing for the interview with friends at a dinner in New York. JF was admitted in late 2016; the parties had assured Buckley that they would move to New York, enroll JF for the full eight- or nine-years boys can attend Buckley, and be a part of the school community. 

Soon after JF was admitted, Shah and Federbush decided to move to New York. They leased an apartment for one year on the Upper East Side not far from Buckley and arrived in August 2017. A month later they officially announced their move to friends and family at a large welcome party held in their honor. JF began kindergarten at Buckley that fall. Shah and Federbush also left a deposit on file at NIST, JF’s former school in Thailand, to hold his spot there in case the family returned.

One new point of contention that arose after the move was that Shah could spend only a limited number of days in the United States under the terms of her visitor’s visa and before being subject to U.S. taxes—a number the couple closely tracked.. Despite difficulties in their relationship, in early 2018 they extended the lease on their apartment for another year. But during the family’s 2018 summer vacation in Thailand, Shah informed Federbush that she wished to separate. He and JF returned to New York before the beginning of the next school year without major incident. Shah arrived soon after; but during the fall and winter of JF’s first grade year, Shah stayed in a hotel in New York rather than in the apartment where Federbush and JF lived.

Around the new year, Shah moved out of the hotel and rented her own apartment in New York for a term ending in January 2020 with JF listed as an additional occupant. When Shah was in New York, JF (and his Thai nanny, Jum) spent time between Federbush’s apartment and Shah’s. Tr. 271:8-10. In the spring of 2019, Federbush told Shah (and her father) that he was registering JF for second grade at Buckley; at some point, Federbush paid JF’s tuition. At around the same time, in anticipation of the upcoming school year, Shah, Federbush, and JF decided that he would take French, and Shah ordered JF’s summer reading that was assigned by Buckley.The parties continued to negotiate a permanent solution to the separation, but by late spring, the parties had hit an impasse. This lawsuit followed on May 29, 2019.

Shah asserted that the move was conditioned on a “trial period, that if their marriage failed, they would move back to Thailand after two years.. Shah said she agreed to try living in New York “for the sake of peace ... and a chance for [their] marriage to work.” As a result, Shah contended, the parties’ last shared intent was that JF would reside in Thailand. Federbush says that the parties moved to New York without condition. He argued that the parties were, of course, aware that they might have to return to Thailand for some unforeseeable reason, but there was no condition understood by either of them that their marriage had to succeed in order for JF to remain in New York. Therefore, Federbush asserts that their last shared intent was for JF to reside in New York. 

The Court did not credit Shah’s testimony that the move to the United States was conditional. First, according to Shah, the condition was communicated to no one except her parents and brother. Second, Shah’s description of the nature and circumstances of the condition is vague and inconsistent. Finally, although there was some evidence that corroborates her testimony, the substantial weight of the credible evidence runs counter to her narrative.

Shah testified that she thought returning to Thailand “might be possible” if “things [did not] work out” between her and Federbush. She also testified that she intended to “stay for two years and [then] reassess.” But she also testified that they would “just go [to the United States] right now and then we’ll figure it out.” The court pointed out that anticipating a mere “possibility” of return and having a plan to “reassess” their commitment to living in New York is just not the same as a condition that if the marriage failed, they (or at least she and JF) would return to Thailand. When asked what they planned to do if the marriage was not going well after two years, the condition precedent on which she hinged her case, Shah testified that she did not know, acknowledging that “[m]aybe we never really spoke about it.” This admission contradicted other testimony by Shah regarding “conversations with Max before we moved that if things didn’t work out that we would move back to Thailand.” Shah testified that her ideal resolution of this dispute would be custody “two weeks on and two weeks off” in New York.

Shah argued that she left over ninety percent of her belongings in Thailand, that Federbush left behind the entire contents of his study, and that the parties left behind many of JF’s toys. But Shah and Federbush also had “stuff” in storage in New York, including Federbush’s furniture and ninety-five percent of his belongings; he testified that he left in Thailand only unused files and summer clothing. Further, on each subsequent trip to New York, Shah brought so much luggage that she was on one occasion stopped at the border and denied entry as an intended immigrant. Moreover, the parties took with them JF’s favorite toys and weather-appropriate clothes that he had not outgrown. 

Shah’s mother testified that before the move to New York, Federbush told her that if things did not work out, they might be back in a year. But this did little to evince an agreed-upon condition to return to Thailand. At most it evincedthe mere possibility, and it did nothing to evince a two-year conditional period. Shah’s brother testified that Federbush told him that they had allowed a two-year period to make their new lives in New York work. But Shah’s brother’s testimony was just as unhelpful: even though Shah’s brother identified a “two year” period, he also testified that “there was no understanding as far as [he] knew as to what would happen at the end of two years if all did not go well.” 

Shah pointed to the fact that they left a deposit at NIST (JF’s school in Thailand) as evidence that there was no intent to move permanently to New York. When JF was not re-enrolled at NIST (because he was moving to New York), NIST asked his parents whether they would leave a deposit to facilitate JF’s re-enrollment if they returned to Thailand. Federbush made his intentions clear to Shah when he texted her that there was no need to do so: “burn our boats.” The fact that a deposit was left at NIST was ambiguous at best. There was no evidence that Shah made a conscious decision to act contrary to Federbush’s desire to “burn our boats.”

Some of the facts were indicative of Shah’s desire to maintain ties and perhaps even to return to Thailand, but these facts are also consistent with there having been no condition on the move. Shah retained her business interests in Thailand and continued serving on the board of directors for two of G.P. Group’s public companies. Shah similarly testified that in early August 2018, during an interview with Forbes Thailand, she told the reporter that she was “going to stay in the states for two years,” after which she planned to “be back in Thailand” to look after her various Thai business interests. But that statement goes to her own connections to Thailand, not JF’s. Indeed, Shah did not testify that she told the reporter that she and her family would be returning in two years.

Shah also argued that she never tried to become a permanent resident or to obtain permission to work in the United States, and she never addressed the tax and business consequences that would attend permanent residency. The Court found  credible Federbush’s testimony that the tax day-counting arrangement was part of a longer process of addressing the tax and business consequences of permanent residence.  This arrangement was meant to give the Shah family a window to restructure their holdings to minimize or eliminate whatever difficulties (tax or otherwise) would arise if Shah were a permanent resident of the United States while remaining Managing Director and a substantial shareholder of GP Group. 

In contrast to the limited quantum and persuasiveness of evidence corroborating Shah’s narrative that the move to New York was conditional, there was substantial persuasive evidence that tends to corroborate Federbush’s testimony that the couple moved to New York indefinitely and without condition. After moving, the parties acted in ways that were consistent with a shared understanding that JF would remain in New York long-term and entirely inconsistent with a shared understanding (or even a unilateral understanding) that JF was living in New York on a conditional basis.

The parties’ actions with respect to Buckley all evinced a mutual understanding that the move to the United States was for much longer than two years. Even with Shah’s family wealth, it strains credulity to believe that she would have made a long-term pledge to the school unless she believed JF would be attending the school long term.

After Shah notified Federbush that she wanted to separate, she behaved as though she would continue to live in New York consistently or on a periodic basis well past the August 2019 two-year anniversary of the move. Shah continued to count the number of days she spent in the United States to make sure she stayed under the global income-tax threshold. Shah rented, furnished, and moved into an apartment in Manhattan with a lease term extending to January 2020. When Shah and Federbush told JF that they were separating, they assured him that his life would not change: he would continue to live in his father’s apartment and his mother would live just ten minutes away.

The Court found  that the last shared intent of Shah and Federbush was that JF would reside in New York, and neither Shah nor Federbush contemplated a condition, implied or explicit, that JF would return to Thailand if the parties separated.

The Court noted that  Second Circuit has stressed that habitual residence is simply the place where the child “usually or customarily lives.” Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019) (quoting Guzzo, 719 F.3d at 109). “[T]he overall assessment of habitual residence is not formulaic but instead is a fact-intensive determination that necessarily varies with the circumstances of each case.” Guzzo, 719 F.3d at 109 

To determine habitual residence, the Second Circuit has instructed the trial court to analyze the parents’ latest shared intent and, if in conflict with where the child has been retained, whether the child has nonetheless acclimatized to his or her new locale: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.

Shah argues that JF’s habitual residence is Thailand. She bases her argument on her narrative in which the family’s move to New York was for a two-year trial period, conditioned on their marriage improving. Because the move was conditional, and because the condition did not come to pass, she argues that the parties did not have a shared intent to move to New York. Thus, Shah asserts, the parties’ last shared intent was that JF would reside in Thailand. 

The court found that the greater weight of evidence supported Respondent’s narrative that the parties intended to move to New York indefinitely. Although Shah may have hoped that they would consider returning to Thailand if their marriage did not work out (the Court was not persuaded that Shah believed Federbush would ever return to Thailand), habitual residence is not determined by “wishful thinking alone. “When the child moves to a new country accompanied by both parents, who take steps to set up a regular household together, the period need not be long [to establish a new habitual residence].” Id. The parties both intended that JF would reside in New York. The parties moved there together. And the parties established a locus of family life, schooling, friends, possessions, and expectations in New York. New York, by all indications—including the parties’ last shared intent—is where the Child usually and customarily lives. Because the Court found that the parties intended to move indefinitely, not, as Shah contended, for a trial period, Shah did not met her burden of proving that Thailand was JF’s habitual residence. Therefore, Federbush was not wrongfully retaining JF in the United States. Petitioner failed to satisfy her burden of proving, by a preponderance of the evidence, that Thailand was JF’s habitual residence. 

Pfeiffer v Bachotet, 2018 WL 9563334(N.D. Georgia, 2018)[Switzerland] [Habitual residence] [Rights of custody] [Petition denied]

         In Pfeiffer v Bachotet, 2018 WL 9563334(N.D. Georgia, 2018) Petitioner Marcellinus Pfeiffer’s Petition for Return of the Minor Children was denied.

          Petitioner and Respondent were previously married and had two children, N.A.R., a nine-year-old daughter, and R.H.E., a seven-year-old son. Petitioner was a citizen of Germany, and Respondent a citizen of France. They married in France in 2010 and moved to Switzerland in 2012. The parties obtained a divorce in June 2017 when a Sentence and Decree of Divorce was issued by the District Court of Meilen, under the Canton of Zurich, Switzerland. This divorce judgment incorporated the divorce agreement the parties entered into in May 2017. Under the terms of the divorce judgment, Petitioner had parenting time with the children every other weekend with additional time for holidays and during the summer. This arrangement was modified, by the guardian appointed to oversee the custodial arrangement between the parties, so that Petitioner and Respondent had equal time with the children. While the guardian entered a new parenting plan, she did not modify the divorce judgment, nor could she under Swiss law.

On or about June 17, 2018, Respondent and the children left Switzerland for the United States. Respondent traveled on a K-1 (fiancé) Visa, and the children traveled on K-2 Visas. They currently resided in Marietta, Georgia, with Respondent’s fiancé.

          The district Court concluded that the habitual residence of the children at the time of removal was Switzerland. While the term “habitual residence” is not defined in the Hague Convention or ICARA, courts “in both the United States and foreign jurisdictions have defined habitual residence as the place where the child has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.” Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1284 (S.D. Fla. 1999); see also Ruiz v. Tenorio, 392 F.3d 1247, 1252–58 (11th Cir. 2004). For habitual residence to change, there must first be “a settled intention to abandon the one left behind.” Ruiz, 392 F.3d at 1252. “Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence. In addition, there must be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” Id. at 1253.

        The Court found that Petitioner met his burden in establishing, by a preponderance of the evidence, that at the time of their removal from Switzerland, the children lived in Switzerland for the majority of their lives, had never traveled to the United States, and had not become acclimatized to life in the United States. Petitioner established the first element of his prima facie case.

         

          The Court concluded that Petitioner failed to establish that removal of the children breached his custody rights under the laws of Switzerland. The parties’ divorce agreement stated: [The parties] are aware that relocation of the children requires both parents’ consent if the new place of residence is located abroad or if relocation has some impact on the exercise of parental custody or visitation rights of either parent. The father represents that he does not object to the mother’s taking residence abroad (US or France) at¹ the end of the school term 2016/2017. Under Swiss law, this divorce agreement was approved by the court and became a part of the divorce judgment, which could only be modified by filing a petition with the court. The Court found that the parties’ divorce judgment controlled the issue of whether the children’s removal violated Petitioner’s rights of custody.  Hague Convention, art. 3 (“The rights of custody ... may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the state.”).

          The Court observed that the Hague Convention distinguishes between “rights of custody,” which “shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence,” and “rights of access,” which “shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Hague Convention, art. 5. The divorce judgment gave Respondent the exclusive right to determine whether the children would remain in Switzerland or move to the United States or France at the end of the 2016/2017 school year. In granting her the right to determine the children’s place of residence, it necessarily deprived Petitioner of the right to determine residence, at least with regards to these three specific countries. He therefore did not have a “right of custody” under the meaning of the Hague Convention, at least in these circumstances. See, e.g., Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630, 634–35 (holding that the parties Mexican divorce decree granted father a right of access but not a right of custody, thus barring the child’s return under the Hague Convention).

Garcia v Galicia, 2019 WL 4197611 (D. Nevada, 2019)[Mexico] [Federal & State Judicial Remedies] [Default judgment] [Petition granted]

In Garcia v Galicia, 2019 WL 4197611 (D. Nevada, 2019) the child’s mother, petitioner Zendy Arleny Torres Garcia, alleged that the child was wrongfully taken from the State of Michoacán, Mexico, to the United States by the child’s father, respondent Teofilo Israel Guzman Galicia. The Magistrate Judge recommended that Torres Garcia petitions for the child to be returned to her in Mexico be granted. The District Court adopted the report and recommendation in an order. See Garcia v Galicia, 201`9 WL 4192729 (D. Nevada, 2019)  

Torres Garcia and Guzman Galicia were cohabitating in Morelia, which is in State of Michoacán, Mexico, when L.M.G.T. was born on July 4, 2006. Torres Garcia and Guzman Galicia are listed as L.M.G.T.’s parents on her birth certificate.  Torres Garcia and Guzman Galicia lived together until May 2015 and that at some unspecified point after that, Guzman Galicia removed L.M.G.T. from Mexico to the United States without Torres Garcia’s knowledge, consent, or acquiescence. According to Torres Garcia, Guzman Galicia is “armed and dangerous” and his violent tendencies and substance abuse caused the parties’ separation. Torres Garcia states that she used to rely on Guzman Galicia for financial support, but that she was left without income when they separated. Garcia explains that the fact she had to “re-enter the work force and fend for [herself]” following the parties’ separation is what allowed Guzman Galicia to keep L.M.G.T. and leave Mexico without Torres Garcia’s knowledge. In January 2017, Torres Garcia filed a custody motion and criminal offense report in Michoacán against Guzman Galicia for abducting L.M.G.T) She filed a Hague Convention request for the return of the child with the Mexican authorities in February 2018. Torres Garcia states she did not know L.M.G.T.’s location until late 2018, when Guzman Galicia contacted Torres Garcia and informed her that he and L.M.G.T. were living in Las Vegas, Nevada. According to Torres Garcia, Guzman Galicia pressured her to sign over her custody rights to him and threatened she would never see L.M.G.T. again Torres Garcia attempted to communicate with Guzman Galicia and his extended family to secure L.M.G.T.’s return to Mexico to no avail. She also attempted to obtain a visa to travel to Las Vegas to get the child herself, but her initial visa application was denied. 

The Court found L.M.G.T. was 12 years old at the time the case was filed, but she had since turned age 13. She attended J.D. Smith Middle School in North Las Vegas. She lived with Guzman Galicia and his family. According to Torres Garcia’s attorney, Guzman Galicia provided Torres Garcia with the following address: 5921 West Bartlett Avenue, Las Vegas, Nevada 89108. Guzman Galicia was served with the complaint and petition for return of the child and the summons. The complaint and summons were delivered to Pedro Franco, roommate/co-resident at 5921 W. Bartlett Avenue, Las Vegas, Nevada, 89108). 

Torres Garcia moved for an ex parte temporary restraining order and for a warrant in lieu of a writ of habeas corpus directing law enforcement to bring Guzman Galicia and L.M.G.T. before the court. The court further ordered Guzman Galicia to show cause in writing why the temporary restraining order should not be converted to a preliminary injunction and to appear at a preliminary injunction hearing on August 8, 2019. Torres Garcia served her emergency motion for injunctive relief her supporting declaration and the court’s temporary restraining order on Guzman Galicia by United States mail on August 2, 2019. On August 7, 2019, Guzman Galicia contacted Torres Garcia’s attorney’s office and requested to move the hearing on the preliminary injunction because he had to work at the “solar farm,” but the attorney’s receptionist instructed Guzman Galicia to contact the court regarding any scheduling conflict he may have with the hearing. Guzman Galicia did not file a written response to the court’s show-cause order or appear at the preliminary-injunction hearing on August 8, 2019. At the hearing, the court converted the temporary restraining order to a preliminary injunction prohibiting Guzman Galicia from removing L.M.G.T. from the State of Nevada pending trial in this case.  After the preliminary-injunction hearing, Torres Garcia attempted to serve the court’s temporary restraining order the minutes of the preliminary-injunction hearing (ECF No. 16), and the court’s subsequent order setting a case-management conference for August 14, 2019 on Guzman Galicia on August 9, 2019, at the Bartlett address, but nobody answered the door. At the time of the second service attempt on August 10, 2019, Guzman Galicia’s sister told the process server that Guzman Galicia moved to North Las Vegas. The process server gave the sister her business card and requested that Guzman Galicia contact her to accept service of the documents. The process server informed Torres Garcia’s attorney that on August 12, 2019, Guzman Galicia called the process server and indicated he was “on his way back from Boulder City” and would pick up the documents at the process server’s office on August 13, 2019. As of 3:00 p.m. on August 13, 2019, Guzman Galicia had not picked up the documents, so the process server left them with Guzman Galicia’s sister at his last-known address on Bartlett Avenue that afternoon. The documents were delivered to Guzman Galicia’s sister, Mireya Guzman, at 5921 W. Bartlett Avenue, Las Vegas, Nevada 89108). Guzman Galicia did not appear at the case-management conference on August 14, 2019.  At the case-management conference, Torres Garcia testified under oath that her aunt informed her that Guzman Galicia and L.M.G.T. have left Las Vegas and were travelling to Mexico by bus with an expected arrival date of August 16, 2019. Apparently, Guzman Galicia texted a photograph of himself and L.M.G.T. on the bus to the aunt, but Torres Garcia had not seen the photograph. Additionally, Torres Garcia testified that Guzman Galicia contacted other family members, including Torres Garcia’s brother and grandmother, to arrange for extended family members to see L.M.G.T. in Mexico next week. Torres Garcia provided to the court addresses in Michoacán where she expected L.M.G.T. will be residing and visiting family members next week. Based on her communications with family members, Torres Garcia testified she did not believe Guzman Galicia and L.M.G.T. are still in Las Vegas. At the hearing, Torres Garcia’s attorney verballed renewed the motion for a warrant in lieu of a petition for writ of habeas corpus and requested that the court order an “Amber Alert.” The court took the renewed motion for warrant in lieu of a petition for writ of habeas corpus under advisement and denied the request for an Amber Alert without prejudice of Torres Garcia to make any requests she deems necessary to the appropriate law enforcement agencies.

Given that Torres Garcia established her case-in-chief for the return of L.M.G.T. by a preponderance of the evidence and that Guzman Galicia failed to answer or otherwise appear in the case to present any defenses to the petition for return, the court recommended that the petition for return be granted. The court further will recommend that L.M.G.T. be returned to Mexico for the appropriate Mexican court to make a final custody decision. The court further will recommend that Guzman Galicia be ordered to appear before the court with L.M.G.T. on a date and time to be specified by the United States district judge assigned to this case for a hearing to determine the logistics of L.M.G.T.’s return to Mexico.

Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019)[Honduras] [Federal & State Judicial remedies] [Default judgment] [Petition granted]

In Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019) after the Respondent or a licensed attorney for the Respondent failed to appear at the hearing on April 26, 2019, the Magistrate Judge issued a Report and Recommendation and recommended that default judgment be entered against Respondent that the child be returned to Honduras. The Report and recommendation were adopted and incorporated in an order by the district court. See Huete v Sanchez, 2019 WL 4195336 (E.D. Virginia, 2019).


Petitioner filed the Petition on December 4, 2018, for the return of his daughter (“Child”) to Honduras under 22 U.S.C. § 9001 et seq. The Petition alleged that Respondent, Child’s mother, removed Child from her home in Honduras and took her to Virginia without Petitioner’s consent. The Magistriate Judge observed that Rule 55 of the Federal Rules of Civil Procedure provides for default judgment when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” FED. R. CIV. P. 55(a). For a Court to render default judgment against a party, it must have both subject matter jurisdiction and personal jurisdiction. This Court had subject matter jurisdiction over this action pursuant to 22 U.S.C. § 9003(a), which provides that United States district courts shall have concurrent original jurisdiction of actions arising under the Hague Convention. Venue was appropriate in this district because although the Respondent was not a resident of the United States, she was located in the district. See 28 U.S.C. § 1391(c)(3) (stating that a defendant who is not a resident in the United States may be sued in any judicial district).

The Court pointed out tha Personal jurisdiction may be founded on either of two theories: general or specific jurisdiction. When “a suit does not arise out of the defendant’s activities in the forum state, the court must exercise general jurisdiction and the requisite minimum contacts between the defendant and the forum state are fairly extensive.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993). Those contacts must be “continuous and systematic.” See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); Saudi v. Northrop Grumman, 427 F.3d 271, 276 (4th Cir. 2005). The “paradigm” example of general personal jurisdiction is the individual’s domicile. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Conversely, when a suit arises out of the defendant’s activities with the forum state, then a court may exercise specific jurisdiction. See Federal Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 660 (4th Cir. 1989); Helicopteros, 466 U.S. at 414 n.8. In such a case, the contacts need not be so extensive, but “the ‘fair warning’ requirement inherent in due process still demands that the defendant ‘purposely directed’ its activities at the forum.” Federal Ins., 886 F.2d at 660 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). The Fourth Circuit has expressed due process requirements for asserting specific personal jurisdiction through a three part test in which it considers “(1) the extent to which the defendant purposefully availed himself of the privilege of conducting activities in the State; (2) whether the plaintiff’s claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009).

The Court found that it had general jurisdiction over Respondent because of her continuous and systematic contacts with Virginia. Though Respondent was not domiciled in Virginia because there was no evidence of attempts to obtain United States citizenship, she nevertheless resided in Virginia for the time being. Respondent had been residing in Virginia since March 2018, thereby rendering her minimum contacts with Virginia extensive. 

The Court also had specific jurisdiction over Respondent. First, Respondent has purposefully availed herself of the privileges of conducting activities in Virginia because she resided in the State. Second, Petitioner’s claims arose out of those activities directed at Virginia because Respondent removed Child from her home in Honduras and brought her to Virginia. Finally, the exercise of personal jurisdiction would be constitutionally reasonable because as a resident of Virginia, she had minimum contacts with the State. Since moving to Virginia, Respondent had a fair warning that her activities within the State would subject her to jurisdiction of Virginia. Accordingly, the Court found that it had personal jurisdiction over Respondent.

The Court found that substitute service was proper in this case. Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located ....” FED. R. CIV. P. 4(e)(1). Virginia law permits substitute service via posting if the party being served cannot be found at her usual place of abode and a family member who is sixteen years or older is not found at the individual’s place of abode. VA. CODE. ANN. § 8.01-296. According to the proof of service and statements made in Petitioner’s Supplemental Brief, it appeared that substitute service was proper.  Although the proof of service does not indicate multiple attempts at personal service prior to effectuating substitute service, Respondent acknowledged that she received the Summons and Complaint in December 2018 when she reached out to Petitioner and asked Petitioner to terminate this case. This acknowledgment was sufficient for service of process under VA. CODE. ANN. § 8.01-288, which provides that a process which has reached the person to whom it is directed within the time prescribed by law, shall be sufficient although not served or accepted. Respondent accepted service by acknowledging she received the Summons and Petition. Therefore, the Court found that service of process was proper.

The court found that both Petitioner and Respondent were citizens of Honduras and had Child, outside of marriage, on January 3, 2013, in Honduras. Child is under the age of sixteen. From January 2013 to June 11, 2016, Petitioner, Respondent, and Child lived together as a family in Honduras, but were not married. In June 2016, Petitioner and Respondent separated, and Respondent subsequently married someone else taking Child with her. Petitioner continued to support Child by paying for a nanny and school fees to attend a private school. Child also regularly spent the weekend with her father.  Sometime in March 2018, Child’s school informed Petitioner that Child had not attended school since March 6, 2018.  The school did not provide further information, so Petitioner attempted to contact Respondent, but was unsuccessful.  Petitioner then contacted Respondent’s family; however, Respondent’s family did not disclose the location of Respondent and Child. By this time, Respondent had divorced the man she married after separating from Petitioner. On March 30, 2018, Respondent called Petitioner and informed him that she and Child were in the United States.  Respondent would not give an exact location but based on the telephone number from which Respondent had dialed, Petitioner discerned that the call came from Virginia. Petitioner did not consent to moving Child to the United States without him. In the summer of 2018, Petitioner asked Respondent for help in obtaining a visa so that he could visit Child. Respondent refused and stated that there was no need for Child to see him. In August 2018, Respondent then began restricting Petitioner’s ability to speak with Child.  Petitioner had not spoken with Child since September 13, 2018.

The Magistrate Judge noted that he must evaluate Petitioner’s claims against the standards of Rule 12(b)(6) of the Federal Rules of Civil Procedure to ensure that the Petition contains plausible claims upon which relief may be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining the analysis for examining a plaintiff’s claims under a 12(b)(6) motion to dismiss). To meet this standard, a complaint must set forth “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” In determining whether allegations are plausible, the reviewing court may draw on context, judicial experience, and common sense. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 679).

The court noted that to prove the wrongful retention of a child, a petitioner must prove by a preponderance of the evidence that (1) “it is a breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention,” (2) the removal violated the petitioner’s custody rights under the law of the home country, and (3) the petitioner exercised custody rights over the child at the time of the removal. Hague Convention, art. 3, 191.L.M. at 1501; 22 U.S.C. § 9003(e)(1)(A); Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001); see also 22 U.S.C. § 9003(e).
The place of habitual residence is established based on the circumstances of each case. To establish the place of habitual residence before the removal or retention, federal courts use a two-part framework. See Maxwell, 588 F.3d at 251; Velasquez v. De Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9 (E.D. Va. 2014). The first question federal courts analyze is whether both parents shared an intention to move from the country of residence. Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9. The second question is whether there was an actual change in geography within an appreciable period of time, such that the child will be acclimatized to the new residence.  The Court found that the Child’s habitual residence was Honduras. First, both parents did not have a shared intention to move from Honduras to the United States. Petitioner did not know that Child moved to the United States until weeks after Child had already been removed from Honduras. Petitioner did not consent to Respondent relocating Child to Virginia; rather, Respondent unilaterally decided to remove Child. Second, even though there was an actual change in geography because Respondent took Child to the United States, there was no evidence before the Court to suggest this change was not “coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Maxwell, 588 F.3d at 251. Child was born in Honduras and remained there until she was removed by Respondent over a year ago. Pet. Although Child has remained in the United States for over a year, which may lead to an inference of acclimation, there was no evidence that Child attended school in Virginia, that she was a legal resident of the United States, or that she participated in school activities. The length of stay is only but one factor to consider when determining Child’s acclimation. Without other evidence that Child had acclimated to the United States or Virginia, the Court found that Child’s habitual residence remains Honduras.

The Court found that petitioner had custody rights. Under Honduran law, “the exercise of parental authority belongs to both parents jointly.” Honduran Family Code, Title V (Custody), Chapter I (General Provisions), Art. 187. Moreover, parents who do not cohabitate still share the care and custody of the children. Honduran Family Code, Art. 193. When a parent reserves patria potestas rights over a child, among the rights the parent retains is the right to choose where the child is domiciled. Alcala, 2014 U.S. Dist. LEXIS 153728 at *15; see also 22 U.S.C. § 9003(e). As such, a parent who wishes to travel outside of Honduras must obtain written permission from the other parents. Honduran Code of Childhood and Adolescence, Chapter III (Authorization to Travel), Art. 101. Petitioner has custody rights over Child under Honduran law. When Petitioner and Respondent separated, Petitioner did not relinquish his custody rights over Child. Petitioner still had patria potestas rights over Child. As such, Respondent was required to obtain permission from Petitioner of her intent to move Child to the United States. See Honduran Code of Childhood and Adolescence. Chapter III (Authorization to Travel), Art. 101. Respondent failed to seek permission or inform Petitioner that she was removing Child from Honduras. She instead informed Petitioner weeks after Child had already been removed from Honduras. Therefore, Petitioner retained custody rights over Child and the removal of Child violated Petitioner’s custody rights.

Based on the facts, the Court found that Petitioner retained and exercised custody rights over Child at the time of removal, and that Petitioner demonstrated by a preponderance of evidence that Respondent wrongfully removed Child from Honduras. Petitioner exercised and retained his custody rights over Child after he separated from Respondent. Respondent breached Petitioner’s custody rights by removing Child from her habitual residence of Honduras and violated Petitioner’s patria potesta rights by removing Child from Honduras without Petitioner’s consent. Child should be returned to Honduras.

Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019)[Mexico] [Rights of custody] [Ne exeat rights] [Patria Potestas]

In Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019) the district court granted the father’s petition for the return of the child to Mexico. Valentin Zarate Diaz (“Father”) and Laura Andrea Rios Ibarra (“Mother”) were the parents of Son V, a minor child. 

The parties agreed to forgo an evidentiary hearing and instead submit this case on the briefs. Father and Mother were both citizens of Mexico. They had never been married. They are the parents of Son V, who was born in Mexico in February 2012. They “intermittently lived together for several months when Son V was an infant” but “have not lived together since September 2014.” Their relationship was “tumultuous.” Following their break-up, Son V resided with Mother (in a house owned by Father)2 but Father remained actively involved in Son V’s life. 
On November 19, 2015, Father and Mother entered into an agreement addressing their respective rights concerning Son V (the “Agreement”), which contains the following clauses… (2) The parties agree that “the days of cohabitation with [Father] will be any day of the week within a prudent schedule for the child, provided that [Father] doesn’t come in an inconvenient state, and that he doesn’t interrupt the child’s chores,” and further agree that if either party has “an event that requires the child, they will have no inconvenient.” (3) “[T]he addresses where the child will reside will be [a particular house in Sonora, Mexico] where the child currently lives with [Mother].” Additionally, the Agreement contained a provision certifying that “everything relating to the present agreement, is su[b]mitted to the jurisdiction of the pertinent judge of this judicial district” and concludes with a joint request by Mother and Father for the Agreement to be “su[b]mitted to the Judge of First Instance in Family Matter ...for its revision and approval in the terms of the [laws of] the State of Sonora.”  On August 23, 2018, Mother requested that Father sign a passport application for Son V to travel to the United States. Sometime between August 31, 2018 and September 3, 2018, Mother moved with Son V to the United States. Father did not consent to Mother’s removal of Son V from Mexico. Mother’s purpose in moving to the United States was to accept a job offer to work as a civil engineer at an engineering firm in Arizona. 

On September 12, 2018, Father filed a “Motion to Enforce Agreement” with the family court in Sonora, Mexico. Among other things, Father argued in this motion that Mother had violated the third clause in their Agreement, which required Son V to reside at a particular home in Sonora, Mexico. Father also stated in the motion that “it is true that [Mother] can freely decide where she will live with my minor child” and argued that the violation of the third clause arose from Mother’s “refus[al] to give me true and necessary information of her whereabouts for me to exercise my rights as a parent.” On or about October 15, 2018, the Mexican family court denied the “Motion to Enforce Agreement” that Father had previously filed. The court’s rationale for denying the motion was that “considering the drastic change in circumstances, ([Mother’s] address), it is not materially possible to enforce the agreement regarding parenting time the way the moving party is requesting.” On October 17, 2018, Mother filed a “Notice of Relocation” with the Mexican family court. This notice explained that Mother had moved to the United States for “personal and professional reasons.” On October 18, 2018, Father filed a “Motion to Revoke” the order denying his motion to enforce. On October 23, 2018, the Mexican family court issued an order denying the “Motion to Revoke.” In this order, the court explained that it hadn’t denied Father’s previous motion for any merits-based reason—instead, it had denied the motion because Mother’s relocation to the United States meant that “it is not possible to effectuate the enforcement of the agreement...by virtue of the fact that the minor child no longer lives in the home where it was agreed he would be placed.” The court further clarified that Father’s “rights are preserved and he may exercise them in the appropriate procedure and form.” On July 9, 2019, Mother filed a “Motion to Modify Parenting Time with Our Minor Child” with the Mexican family court. In this motion, Mother described the Agreement as a document that “established parenting time between non-custodial parents and our child.” 

The district court observed that to determine whether the removal/retention was “wrongful,” a district court must answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). If the Court answers these questions in the petitioner’s favor, the burden shifts to the party opposing the return of the child—here, Mother—to prove “by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies.” Id. § 9003(e)(2)(A).

The only disputed legal issue in this case concerned the third element of the Mozes test—whether Mother’s removal of Son V from his state of habitual residence (Mexico) on or around August 31, 2018 (the date of the removal) violated the “rights of custody” that were attributed to Father under the laws of the state of habitual residence. “The parties agreed that the only issue in dispute was the third question. As a result, the return of Son V was only mandated if rights of custody were e attributed to Father under the law of the habitual residence.

The Court noted that  the seminal decision addressing the meaning of the term “rights of custody” under the Convention is the Supreme Court’s 2010 decision in Abbott v. Abbott, 560 U.S. 1 (2010) where the Supreme Court held that a ne exeat right is a right of custody, not  a mere “right of access. A ne exeat right is a right to consent before the mother could take the child out of Mexico. The Court agreed with Father that the parties agreement established rights of custody. The Agreement’s key provision was its third clause, under which Mother and Father jointly agreed that “the address where the child will reside will be” the home owned by Father in Sonora, Mexico, which is the “place where the child currently lives with [Mother].” The necessary implication of this clause was that Mother was precluded from unilaterally moving Son V into a different residence within Mexico—let alone to a different country—without Father’s permission. If a ne exeat right constitutes a “right of custody” for purposes of the Convention, it follows that Father’s rights under the Agreement—which go further than a ne exeat right, because the Agreement implicitly prohibits even the intra-country relocation of Son V by Mother—is a “right of custody,” too.

The father also argued that the Mexican doctrine of patria potestas, or parental authority, granted him a right of custody by operation of law. “The doctrine of patria potestas has its roots in Roman law, where it conveyed absolute and despotic rights of a father over his children; today, in Mexico, the doctrine regulates relations between parents and children until the latter reach the age at which they must fend for themselves.” Gonzalez v. Preston, 107 F. Supp. 3d 1226, 1234 (M.D. Ala. 2015). Patria potestas “constitutes the ‘most comprehensive’ right that a parent can exercise over the person and property of his or her minor children.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 624 (W.D. Tex. 2012). It “establishes the parent’s bundle of rights over a minor child, one of which is formal custody, but it also includes the right to care for the child and make decisions about his or her life.” Preston, 107 F. Supp. 3d at 1234. The Mexican State of Sonora—which was the habitual residence of Son V at the time of his removal—codifies the doctrine of patria potestas in its Family Code (“the Code”). The Code defines patria potestas (in the Code, referred to as “parental authority” ) generally as “a set of rights and obligations granted and legally binding on parents, or grandparents where appropriate, to fulfill the obligations to feed, protect, and raise their descendants, and to appropriately manage their assets.” Code art. 308 More specifically, one who has patria potestas over a child is required “to protect and educate [the child] properly” and “observe the [child] and educate [the child] to obey the rules of social coexistence.” Code art. 317. That person also has “the faculty to admonish and correct, avoiding always cruel and unnecessary punishments.” The Court agreed with Father that the Agreement didn’t extinguish his patria potestas rights. In fact, the evidence submitted by both parties demonstrates that Father retains patria potestas rights over Son V. The Code explicitly provides that “[p]arental authority cannot be waived.” Code. art. 340. The Code also identifies various ways in which patria potestas can be lost or suspended—none of those include by a custody agreement. Code arts. 338, 339.  Indeed, the Code states that “[w]hen parents of a born out of wedlock child separate,” as Father and Mother have done here, “both will continue to exercise [patria potestas]” even after an agreement on custody, child support, and visitation has been reached. Code art. 315.1.

The Court agreed with Father that patria potestas constitutes a right of custody under Sonoran law. See generally Gallardo v. Orozco, 954 F. Supp. 2d 555, 572-74 (W.D. Tex. 2013) (surveying Sonoran law before concluding that “Petitioner has rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico” and that these rights “gave Petitioner specific rights of custody as defined in the Convention”). The Code provides that “[w]hen parents of a born out of wedlock child separate, both will continue to exercise [patria potestas] but must agree on who will retain custody of the minor, as well as the way of administering child support and the right of the noncustodial parent to monitor and relate with the minor.” Code art. 315.1. A parent’s rights under patria potestas, therefore, must be more expansive than the rights to (1) physical custody, (2) the obligation to financially support the child, and (3) right to “monitor and relate with” the child, because both parents “will continue to exercise [patria potestas]” after agreeing on those three items.