In Teller v Helbrans, 2019 WL 5842649 (E.D. New York, 2019) Aaron Teller (“Teller”) commenced an action under the Hague Convention on Civil Aspects of International Child Abduction.
Teller filed a Petition on May 29, 2019, alleging that his wife, Helbrans, abducted their six children in October 2018. Teller asked for the children to be returned to Guatemala, their alleged habitual residence, for custody proceedings. Teller alleged that he, Helbrans, and the six children were members of the Jewish community Lev Tahor living in Guatemala and that Helbrans left the community with the children in violation of Teller’s custody rights. All six children moved to intervene, and the Court approved their participation.
In June 2019, the Court adopted Helbrans and Teller’s jointly proposed discovery and trial schedule. The schedule contemplated the commencement of trial on September 23, 2019. On July 11, Helbrans moved to compel the production of certain documents. The Court subsequently ordered Teller to produce non-privileged documents in response to Helbrans’s document requests and to provide information about a set of emails. No complete production of responsive documents was ever made. Helbrans sought an order compelling Teller to appear for a deposition pursuant to the Walsh Act, 28 U.S.C. § 1783. Teller resisted these efforts. On August 12, the Court denied Helbrans’s motion to compel without prejudice to renewal. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *1 (E.D.N.Y. Aug. 12, 2019); On August 15, Helbrans supplemented her earlier submissions and renewed her motion under the Walsh Act. In response, Teller asked that his deposition be taken in Guatemala. Teller’s counsel also informed the Court that Teller would not be testifying at the trial in New York and asked to appear by videoconference, but he provided no reason why an in-person appearance was not possible. Helbrans also moved to compel Teller’s production of documents on August 19. Helbrans informed the Court that Teller “produced only 15 documents weeks after the [document discovery] deadline, only after Respondent repeatedly prodded Petitioner and asked about specific categories of documents that should have existed in Petitioner’s possession.” She recounted that on August 3, one day after the document discovery deadline, Teller’s counsel said that Teller’s final production had been sent. But on August 7, 2019, Teller’s counsel said, “I have not received any documents from Aaron Teller yet.” Helbrans also asked the Court to amend the discovery and trial schedule because Teller had failed satisfy other discovery obligations. His failures allegedly included: not serving discovery requests by June 21, not serving objections and responses to Helbrans’s discovery requests by June 26, and not producing any documents by the document production deadline of August 2.
The Court granted Helbrans’s motion for a Walsh Act subpoena. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3975555, at *5 (E.D.N.Y. Aug. 21, 2019). The Court explained that “[t]here is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness,” and “it is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter.” In granting the motion, the Court noted that although Teller refused to appear for a deposition or trial, “[t]here is no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States.” As a result, the Court directed (i) Teller’s counsel to provide an estimate of travel and attendance costs for the deposition, (ii) Helbrans to provide subpoenas to be so-ordered for Teller’s deposition and trial testimony and to arrange for service of the subpoenas pursuant to Federal Rule of Civil Procedure 4(f), and (iii) the parties to meet and confer about the date for Teller’s deposition.
On August 22, a status conference was held with counsel for Teller, Helbrans, and all Respondent-Intervenors. In light of Teller’s discovery failures, the Court adjourned the trial to October 29, 2019. The Court then “so-ordered” two Walsh Act subpoenas compelling Teller to testify at a deposition in the United States and at the trial. After Teller’s counsel provided an estimate of travel and attendance costs, the Court asked Helbrans to pay $3,340, which her counsel agreed to do. In September 2019, an agent attempted personal service on Teller of the two Walsh Act subpoenas and the check for the travel funds. On September 7, 8, 11, and 15, the agent attempted to serve Teller by visiting a gated community in Guatemala at which Teller was known to be living with the Lev Tahor community. Personal service could not be accomplished. Members of the Lev Tahor community took steps over those four days to help Teller evade service by turning the agent away from their “private property” and refusing to accept service on behalf of Teller. The agent then had the documents sent via certified mail to Teller’s Guatemalan address on September 20. A security guard at the gate of the community did not allow the delivery by the Guatemalan postal service. Helbrans’s counsel sent a copy of the two subpoenas to Teller’s counsel via email. The subpoenas and check were made available for Teller to pick-up at a Guatemalan post office, and Teller’s counsel said that he would advise Teller as such.
On September 7, Helbrans asked the Court to draw an adverse inference against Teller because, as of that date, “Teller had not produced any documents responsive” to Helbrans’s requests for production in violation of the Court’s August 22 order. The only documents he produced were documents from Chayeh and Yakev Weingarten, both non-parties and purported members of Lev Tahor. Helbrans’s counsel also had learned that Teller’s counsel had been unable to communicate with Teller. A status conference was held on September 23, 2019. Prior to the conference, Teller’s counsel filed a letter stating that he wished to be relieved as counsel. At the status conference, Teller’s counsel provided some explanation for the request. Among other things, he stated that he had experienced a “lack of cooperation” from Teller in gathering information, “the discovery process has had a lot of pitfalls, and [counsel] d[id]n’t see an end to that potential process.” Counsel also learned that Lev Tahor may be moving to Iran; counsel had personal and litigation-based objections to such action, but he did not elaborate. The Court directed counsel to file a motion to withdraw as counsel as required by Local Civil Rule 1.4.
At the status conference, Teller’s counsel again told the Court that Teller did not intend to appear for his deposition or the trial. He stated, “Mr. Teller has indicated to me that he will not, even if properly served with a subpoena, be able to come to the United States.”. After the Court stated that Teller could be held in contempt, his case would be dismissed with prejudice if he did not appear for his deposition, and he could not “get the benefits of a court adjudication, and at the same time avoid the obligations that go along with them[,]” Teller’s counsel stated that he had “communicated that to [Teller].”. The Court then scheduled a hearing on the motion to withdraw as counsel and directed Teller to appear at the hearing. On October 18, the deposition of Teller was convened. The attorneys for Helbrans, Y.C.T., and the Children Teller appeared. Teller, however, did not.
Helbrans filed a motion to dismiss the Petition with prejudice under Federal Rules of Civil Procedure 37 and 41. Their children, the Respondent-Intervenors, also requested dismissal in separate filings. The court found that since the Petition was filed, Teller engaged in a pattern of misconduct and paid little attention to and disregarded the obligations attendant to a litigant in a federal civil proceeding. Although Teller ostensibly filed the Petition to have his six children returned to him in Guatemala for custody proceedings, it was obvious to the Court that he hads little to no intention of litigating the case. Because time is of the essence in a Hauge Convention case, the Court entered an expedited discovery schedule and set a trial date. In response, Teller first ignored his discovery obligations by refusing to provide documents requested by the other parties. He then failed to appear for his deposition. And finally, when his lawyer moved to withdraw, Teller failed to appear at the motion hearing, even though he was directed to do so by the Court. Teller repeatedly told the Court that he had no intention of appearing for any trial. Teller, who was a U.S. citizen, never gave any reason why he could not appear in a case he initiated. A federal statute—the Walsh Act—permits a court to compel and subpoena a U.S. citizen to testify. The Court did so and also eliminated any potential financial barriers to appearance by having the law firm representing Respondent Sara Feiga Helbrans (“Helbrans”) pay for Teller’s plane fare and hotel accommodations. In response, Teller took various steps to evade service of the Court’s subpoena (none of which actually negated the propriety of service) and again reiterated his intention never to appear. It was obvious that Teller’s motivation in bringing this case was either to harass the other parties or to obtain some strategic advantage in other litigation (including the New York State custody proceedings that had been stayed because of the filing of the Petition). While a party’s motivation in filing suit may be irrelevant, violations of court orders may not so easily be disregarded. The flagrant and repeated disregard of court orders and discovery obligations compeled the Court to dismiss Teller’s Petition with prejudice.
.
The Court granted the motion to withdraw, as well as the motions to dismiss.and dismissed the Petition with prejudice pursuant to Rule 37(b)(2)(A)(v), for his violations of Rules 16(f)(1)(A) and 16(f)(1)(C). See, e.g., Wang, 308 F.R.D. at 120 (dismissing plaintiff Wang’s complaint with prejudice pursuant to Rule 37 “because the Wangs and their counsel repeatedly and willfully obstructed Bear Stearns’ efforts to depose Mr. Wang ... [and counsel] refused to accept service of any subpoena.”).
In Poretti v Baez, 2019 WL 5587151(E.D.N.Y., 2019) the district court denied the application of the Petitioner for the return of his daughters to Mexico.
Mr. Poretti and Ms. Baez met in 2000.In late 2001, after Mr. Poretti was relocated to Mexico for work, Ms. Baez moved there to live with him. Mr. Poretti and Ms. Baez married in 2002 and had their first child, RP, in 2005. In 2010, Ms. Baez gave birth to CP, and in January 2013, she filed for divorce in Mexico. After initiating divorce proceedings, Ms. Baez contemplated returning to New York. On one such occasion, Ms. Baez traveled to New York from late February through early March 2013 and when she returned to the apartment she still shared with Mr. Poretti , the locks had been changed and she could not enter. When Ms. Baez eventually entered the apartment, the children were gone and Mr. Poretti would not tell her where they were or when they would return. Ms. Baez sat in the living room of the apartment insisting Mr. Poretti produce the children while Mr. Poretti yelled at her and called her derogatory names in front of a neighbor, an attorney and a work colleague, who had all assembled before Ms. Baez’s arrival. “Mr. Poretti proceeded to yell and berate me for two hours, calling me stupid, an idiot, a whore, and a liar”. When the children’s nanny finally brought them back to the apartment from a neighbor’s house, the girls told Ms. Baez that their father said she had abandoned them and they thought they would never see her again. Three days later Ms. Baez opened the door with her new key to Mr. Poretti , “screaming” and holding a torn copy of an official notice explaining he had violated court orders by changing the locks on the marital residence. With both CP and RP present, Mr. Poretti physically assaulted Ms. Baez. He pulled her hair, threw her to the floor and instructed the nanny to take her cell phone while he held her arms down.
After Ms. Baez filed a police report, a medical examination revealed bruising, consistent with an assault. The Mexican Judge signed a divorce decree and granted Ms. Baez primary custody and Mr. Poretti supervised visitation. Within six months, Mr. Poretti was permitted unsupervised visitation, on the condition that he undergo psychological evaluations. Throughout the custody proceedings, Mr. Poretti repeatedly disobeyed court orders, failed to appear for conferences and only appeared for a court-ordered psychological evaluation on penalty of arrest. More than three years after Mr. Poretti was granted ne exeat rights, and only after the Mexican appellate court reinstated unsupervised visitation conditioned on psychological evaluations—which Mr. Poretti historically avoided—Ms. Baez decided to expedite her efforts to relocate with her children to the United States. Notwithstanding the fact that Ms. Baez had primary custody of the children, the custody orders directed that neither parent unilaterally change the domicile of the children and that Mr. Poretti retain ne exeat rights.
In December 2016, Ms. Baez took her children from Mexico City to Tijuana and walked across the border to the United States. From there, they flew to New York City, where they stayed with Ms. Baez’s mother and sister in Brooklyn, New York. Immediately after the Christmas holiday, CP started elementary school at PS-107, which she still attended today, and RP started middle school. RP now attended Millennium High School in Brooklyn. A few weeks after arriving in New York, Ms. Baez and her children moved in with Ms. Baez’s boyfriend, Mr. Messing. At the time, Mr. Messing lived in an apartment in Park Slope, Brooklyn. Ms. Baez began working as a document reviewer and eventually obtained employment with FINRA, Within a year Ms. Baez and Mr. Messing purchased a new apartment in Windsor Terrace, just a short distance from Park Slope and across the street from Prospect Park. Ms. Baez and her children had now resided in New York for almost three years. During this time, the children had spoken to Mr. Poretti twice—both within a month of arriving in the United States. CP and RP were thriving academically and socially. Both had many friends, participated in a host of different extracurricular activities and spent time with their mother’s family in New York and New Jersey as well as Mr. Messing’s family in Michigan, Washington D.C. and North Carolina. CP and RP spoke English almost exclusively. Both children made clear in camera that they enjoyed living in the United States in every respect—they felt a strong connection to their friends and family, they enjoyed their schools and activities and did not wish to return to Mexico.
As part of this litigation, both children were interviewed and evaluated by Dr. Peter Favaro, a psychologist who specialize in high conflict divorce and custody proceedings in the United States. Dr. Favaro testified that RP was mature for her age, “achievement oriented,” “articulate” and capable of making an informed decision regarding repatriation. Though CP was younger, Dr. Favaro testified that CP was mature for her age and capable of making an informed decision regarding repatriation. Dr. Favaro testified that the children did not want to return to Mexico and, in his professional opinion, such a decision would be “catastrophic” for CP and RP psychologically, and would likely trigger significant stress. He explained that the children were well-adjusted to life in New York and notwithstanding their obvious resilience and adaptability to changing circumstances, returning to Mexico at this time would cause incalculable “resentment and fear.”
The court found that Mr. Poretti had established his prima facie case by a preponderance of the evidence.
The Court observed that under Article 12 of the Hague Convention, a respondent who establishes by a preponderance of the evidence that a child is “so settled in [her] new environment that repatriation might not be in [her] best interest” may be entitled to the “well-settled” affirmative defense so long as more than a year has passed since the child’s removal from her habitual residence. Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001): A child is “settled” if repatriation would be “disruptive with likely harmful effects.” In re D.T.J., 956 F. Supp. 2d 523, 534 (S.D.N.Y. 2013) (citing In re Lozano, 809 F. Supp. 2d 197, 230 (S.D.N.Y. 2011)). Whether a child is “well settled” can, but need not necessarily, take into account factors including (1) the child’s age, (2) the stability of the child’s new environment, including the child’s residence, schooling and community engagement, (3) whether the removing parent has stable employment and (4) whether the child has family and developed friendships in the new environment. D.T.J., 956 F. Supp. 2d at 534 (citing In re Koc, 181 F. Supp. 2d 136, 152 (E.D.N.Y. 2001)). Ms. Baez, Mr. Messing and Dr. Favaro all testified that the children were settled, happy and thriving in the United States.
The Court rejected Mr. Poretti’s argument that the well-settled defense cannot apply because, based on his calculation of the children’s “removal,” his Petition was filed within one year. The district court found the Petition was filed more than a year after the children’s removal from Mexico. The children were removed in December 2016. Mr. Poretti learned of their removal in January 2017 but did not file the Petition until April 2019. The court rejected Mr. Poretti’s argument that because he commenced this action less than one year after the August 2018 Mexican appellate decision affirming a custody order requiring the children remain in Mexico, they were “removed” in August 2018, in violation of that appellate decision. Marks on behalf of SM v. Hochhauser, 876 F.3d 416, 421-22 (2d Cir. 2017) (removal or “retention [of a child] is a singular and not a continuing act” and explaining that “retention” relates to “an initial act of retention” not a “new state of affairs which will follow on such initial acts and which might also be described as retention”). Nor does it toll, in any sense, the one-year period under the Convention.
The Court found that both RP and CP were well-settled in the United States and repatriation to Mexico would be “disruptive with likely harmful effects.” D.T.J., 956 F. Supp. 2d at 534. The children developed a cohesive network of friends and family in the United States. They were comfortable in every respect, performing well in school, engaged in the community and involved in a host of extracurricular activities. The children’s lives in the United States, were stable, if not enviable. They lived in an apartment owned by their mother and her boyfriend of over five years across the street from Prospect Park. Ms. Baez, who was a citizen of the United States, was gainfully employed. They had close friends and spent time with their mother’s family and Mr. Messing’s family. They travel and attend camp during the summer months. They participated in myriad extracurricular activities to their hearts’ content. Both children spoke perfect English with no trace of an accent, and often resisted communicating in Spanish. By all measures, the children were accustomed to a happy, normal and secure life in the United States—a life they had formed a lasting connection to over the last three years.
The Court pointed out that “well-settled” means more than having a comfortable material existence, Demaj, 2013 WL 1131418, at *14 (citing Lops v. Lops, 140 F.3d 927, 946 (11th Cir. 1998)), as Respondent had demonstrated. “The totality of the circumstances” revealed the “children’s lives reflected stability in their family, educational, social and most importantly, home life. Demaj, 2013 WL 1131418, at *24 (citing Lozano, 809 F. Supp. 2d at 233). RP and CP had “reached the point at which [they have] become so settled in [their] new environment that repatriation is not in [their] best interest[s]. Three years later, the children’s “interest in settlement” overcomes the Petitioner’s “right to adjudicate the custody dispute in the child’s habitual residence.” Taveras, 22 F. Supp. 3d at 240.
The Court also considered (1) whether the children had any interest in returning to Mexico, including whatever remaining ties they had to Mexico, (2) the children’s “need for contact” with their father, (3) Mr. Poretti ’s “interest in exercising the custody to which he...is legally entitled” and (4) “the need to discourage inequitable conduct” and “deter international abductions generally.” Both children stated in no uncertain terms that they did not wish to return to Mexico. RP went so far as to state that she was not ready to reestablish a relationship with her father, whatever the location, and CP said she would be “surprised” to learn her father cared about her. Neither child had substantial ties to Mexico. RP mentioned she stayed in touch with one friend from Mexico who had since moved to Miami, and that she only recently reconnected with another former kindergarten classmate still residing in Mexico.
Dr. Favaro testified to the children’s “need for contact” with Mr. Poretti , agreeing that it is “good for a child” to have both parents in their life. There is no reason why that cannot be the ultimate goal for RP and CP. But it was clear that in this case, simply depositing the children back in Mexico would be incompatible with realizing that goal and could jeopardize it. At this point, to return to Mexico would not be a return to the status quo. It would be a new, and perhaps difficult, life. The Court found that Respondent established the well-adjusted defense by a preponderance of the evidence and the Court finds the Petition must be denied on that basis.
The Court observed that it may also deny Mr. Poretti ’s Petition if it finds that RP and CP “object [] to being returned and ha[ve] attained an age and maturity at which it is appropriate to take account of [their] views.” Both RP and CP stated to the Court in camera that they wished to remain in the United States and did not want to return to Mexico. RP expressed no interest in returning to Mexico and CP qualified that she might be amenable to visiting Mexico if it was “just for fun.” When the Court interviewed the children in chambers, outside the presence of the parties and their counsel, it was more than satisfied that each child spoke honestly. Both children were articulate and mature for their respective ages and the Court was impressed by their poise, breadth of interests and ambition. The children’s objections to returning to Mexico were “substantially based on their understanding and appreciation of their significant contacts to New York and the lack of such connection to [Mexico].” Johnson v. Johnson, 2011 WL 569876, at *6 (S.D.N.Y. Feb. 10, 2011) (citing Matovski, 2007 WL 2600862, at *15). The Court found that Respondent established by a preponderance of the evidence that the “children’s wishes” defense applied and warranted denial of Mr. Poretti ’s Petition.
The Court also found that Respondent has established by clear and convincing evidence that the children faced a grave risk of harm if they are returned to Mexico. The stress occasioned by the thought of returning to Mexico could not be understated. It was that traumatic, catastrophic stress and Mr. Poretti’s demonstrated ability to take drastic, sustained and psychologically harmful action with respect to his children while ignoring court orders that persuaded the Court that returning the children to Mexico posed a grave risk of psychological harm that could not be ameliorated by Mexican court intervention.
In Bardales v. Lamothe, 2019 WL 5555540 (M.D. Tennessee, 2019) Respondent Breidy Maria Cruz Lamothe removed her minor child, JINC, from his home in Honduras and brought him to the United States. JINC’s father, Petitioner Carlos Ismael Nunez Bardales, filed a Petition seeking the return of JINC. The district court granted the petition.
Respondent Breidy Maria Cruz Lamothe (“Respondent”) and Carlos Ismael Nunez Bardales (“Petitioner”) were both Honduran citizens. Petitioner and Respondent had a child together, JINC, who was born on July 21, 2015. Petitioner, Respondent, and JINC lived together in San Pedro Sula, Honduras after JINC’s birth. In February 2017, Petitioner and Respondent broke up, and moved into different homes. JINC resided with Respondent; however, Respondent dropped JINC off at Petitioner’s home five days a week while Respondent worked. In July 2017, Respondent told Petitioner that she was taking JINC on a vacation to visit her sister in Catacamas Olancho, Honduras. Respondent actually planned to remove JINC to the United States. Respondent and JINC entered the United States on July 14, 2017, via the land border between the United States and Mexico and they arrived in Nashville, Tennessee on July 29, 2017. Respondent eventually texted Petitioner, informing him that she had taken JINC to the United States. JINC was two years old at the time. On July 24, 2017, Petitioner submitted a Hague application for return of the child to the United States Department of State. On July 2, 2018, Petitioner filed a Petition for Return.
Prior to trial, the parties stipulated to the applicability of the Convention and also stipulated to the following facts: (1) JINC is under the age of sixteen; (2) JINC’s habitual residence at the time of removal was Honduras; (3) Respondent and JINC entered the United States on July 14, 2017, via the land border between the United States and Mexico, and Respondent did not tell the Petitioner she had removed the child from Honduras; (4) Petitioner filed his Petition within one year of his knowledge of the wrongful removal; (5) Petitioner is the father of JINC. The only two witnesses at trial were Petitioner and Respondent. Their respective accounts of their relationship, and of Petitioner’s involvement in JINC’s life, differ greatly from one another.
Petitioner’s Exhibit 6 contained excerpts of the Honduran family code in Spanish (“the Spanish version”) and an English translation of those excerpts (“the English version”). At trial, Respondent objected to Petitioner’s proposed Exhibit 6 on the ground that it was not properly authenticated. The Court observed that the language of the Convention authorizes courts to take notice directly of the law of the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.’ March v. Levine, 136 F. Supp. 2d 831, 834 (M.D. Tenn. 2000) (citing Convention, art. 14), aff’d, 249 F.3d 462 (6th Cir. 2001). Additionally, under ICARA, no authentication of documents or information included with a petition under the Convention “shall be required in order for the document or information to be admissible in court.” 42 U.S.C. § 11605. Relying on these principles, district courts often take judicial notice of the law of the state of habitual residence without requiring authentication. See De La Riva v. Soto, 183 F. Supp. 3d 1182, 1196 n.15 (M.D. Fla. 2016) Although Respondent’s concerns regarding that accuracy of the English translation in Petitioner’s Exhibit 6 were valid ones those concerns were sufficiently alleviated here as any differences in the translation were trivial.
The parties stipulated that JINC’s habitual residence at the time of removal was Honduras for the purposes of the Convention. Article 187 of the Honduran Family Code, provides that “parental authority belongs to both parents jointly. However, it will exercise one of them3 when it is conferred by the court or the other was in impossibility to exercise it.” “Parents in the exercise of parental authority have the right to exercise guidance, care and correction of their children, and provide them in line with the evolution of their physical and mental faculties, the direction and guidance that is appropriate for their development.” (translating Honduran Family Code, Art. 191)). “If parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during the trip.” (translating Honduran Family Code, Art. 101)). The Court concluded that “Honduran law provides that, when both parents exercise parental authority, each parent has a ne exeat right: a right to consent before the other parent can take the child out of the country.” Mendieta Chirinos, 2019 WL 2887975, at *5. “A ne exeat right is a right of custody under the Convention.” Abbott, 560 U.S. at 10. Under the Honduran code, “parental authority belongs to both parents jointly. However, it will exercise one of them when it is conferred by the court or the other was in impossibility to exercise it.” Here, the parties stipulated that Petitioner was the father of the child. Moreover, there was nothing in the record that indicated a Honduran court granted full custody to Respondent, and it was not impossible for Petitioner to exercise parental authority; he did in fact exercise his parental authority. Therefore, Petitioner possessed parental authority jointly with Respondent. “If parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during the trip.” (Id. (translating Honduran Family Code, Art. 101)). The Supreme Court has held that such a ne exeat right is a right of custody as defined by the Convention. Abbott, 560 U.S. at 10. Therefore, Petitioner possessed rights of custody over JINC at the time of his removal from Honduras.
The parties stipulated that Respondent removed JINC to the United States on July 14, 2017, without informing Petitioner she was removing the child from Honduras. Because Respondent did not receive Petitioner’s written authorization before removing JINC from Honduras, JINC’s removal was in breach of Petitioner’s custody rights. Therefore, Petitioner proved by a preponderance of the evidence that JINC’s removal was in breach of his custody rights granted by Honduran law.
Although there were disputes regarding the extent of the care that Petitioner provided to JINC, there was no testimony from Petitioner or Respondent of acts that could constitute “clear and unequivocal abandonment” of JINC on the part of the Petitioner. Friedrich II, 78 F.3d at 1066. Respondent’s allegations of Petitioner’s lack of hands-on care for JINC was to no avail, because such allegations suggested something “short of acts that constitute clear and unequivocal abandonment.” Respondent testified that she dropped JINC off at Petitioner’s house five days a week. Even if Petitioner’s mother or a babysitter cared for JINC while he was at Petitioner’s house, it was obvious that Petitioner still intended to, and did, keep regular contact with JINC during this time. The Sixth Circuit has instructed that courts may “liberally find ‘exercise’ whenever a party with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Friedrich II, 78 F.3d at 1065. Accordingly, the Court found that Petitioner was exercising his custody rights at the time of removal.
The Court found that Petitioner proved his prima facie case by a preponderance of the evidence.
Respondent argued that even if Petitioner proved his prima facie case of wrongful removal, JINC should not be returned to Honduras because there was a grave risk that returning JINC would expose him to harm because of Petitioner’s prior violent actions. To prevail, Respondent must prove by clear and convincing evidence that there is a grave risk that returning JINC to Honduras “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, art. 13(b). The Court observed that the Sixth Circuit has adopted a “restrictive reading” of this exception. Friedrich II, 78 F.3d at 1068–69; see also March, 136 F. Supp. at 844–846 (stating that “this exception is truly to be narrowly construed,” and courts that have found a grave risk of harm “have generally emphasized that there was clear and convincing evidence to support a finding that the parent seeking the return had seriously abused the child”). The Sixth Circuit has also “acknowledge[d] that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country’s courts to respond accordingly.”
Respondent testified that after she and Petitioner ended their relationship, Petitioner stalked her and threatened her. She testified that on one occasion, when JINC was in the room, Respondent pointed a loaded gun at her, and then at himself while threatening to commit suicide. Respondent also testified that on another occasion, Petitioner showed up at her place of employment and threatened to kill her and himself. She testified that she was in fear of returning to Honduras because of these incidences. Petitioner vehemently denied that he has ever pointed a gun at Respondent or threatened her. Moreover, Petitioner denied that he ever held a gun in front of his son and testified that he “would never do that.” Based on its observations during the hearing and its review of the evidence, the Court concluded that neither party’s version is appreciably more credible or less credible than the other party’s version. The Court found that Respondent had not proved by clear and convincing evidence that returning JINC to Honduras “would expose the child or psychological harm.” Convention, art. 13(b). Her only evidence of any threatening behavior on the part of Petitioner was her own testimony, which Petitioner’s testimony disputed. There was no other evidence, either through witness testimony, physical evidence, or documentary evidence such as text messages or a police report, that tends to corroborate Respondent’s testimony. This uncorroborated, hotly disputed testimony was simply not enough to satisfy Respondent’s burden of clear and convincing evidence. Moreover, to prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to [the] child, not solely to a parent or some other third party.” Acosta v. Acosta, No. CIV. 12-342 ADM/SER, 2012 WL 2178982, at *7 (D. Minn. June 14, 2012) (citing Convention art. 13(b)); see also Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010) (“The relevant inquiry is not whether there would be a grave risk of harm to [the child’s mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.”). Here there was no showing of any likelihood of such scenario were JINC to be returned—i.e., that long after Petitioner’s relationship with Respondent ended, he would abuse her, let alone abuse her with JINC in the vicinity so as to be himself at risk. Although Petitioner did allegedly point a loaded gun at Respondent while JINC was in the room, this action alone did not amount to one of the “extreme cases” in which the grave risk of harm defense may be found. See Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010) Moreover, Respondent had not proven by clear and convincing evidence that the Honduran courts would be unwilling or incapable of protecting the child during the pendency of a custody hearing. Although Respondent testified that the police force in Honduras “doesn’t work”, this does not persuade the Court that Honduran courts are unable to protect JINC. As the Sixth Circuit explained, “[w]hen we trust the court system in the abducted-from country, the vast majority of claims of harm—those that do not rise to the level of gravity required by the Convention— evaporate.” Friedrich II, 78 F.3d at 1068.
Respondent argued that Petitioner consented to or subsequently acquiesced in the wrongful retention of their child and that she should therefore be afforded the third of the foregoing affirmative defenses under Article 13. In order for her to prevail on this defense, Respondent had to show by a preponderance of the evidence that Petitioner consented to or subsequently acquiesced to the child remaining in the United States. See Friedrich II, 78 F.3d at 1067 (citing Convention art. 13(a) and 42 U.S.C. § 11603(e)(2)(B)). Here, the parties stipulated that “Respondent did not tell Petitioner that she had removed the child from Honduras.” And Petitioner sought assistance from the Honduran Central Authority within days of JINC’s removal. See Freier v. Freier, 969 F. Supp. 436, 444 (E.D. Mich. 1996) (finding no consent where, inter alia, petition was filed “within days” of wrongful removal). Accordingly, Petitioner did not consent to JINC’s removal from Honduras. “[A]cquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written enunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich II, 78 F.3d at 1070. “Subsequent acquiescence requires more than an isolated statement to a third-party. Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Respondent’s evidence of Petitioner’s subsequent acquiesce was ambiguous at best. At trial, Respondent displayed text messages, in which Petitioner responded with a “thumbs-up” emoji to Respondent’s statement that she had made it to the United States. Respondent maintained that the “thumbs-up” meant Petitioner was okay with JINC remaining in the United States. Petitioner contended that the “thumbs-up” meant that Respondent should enjoy her mother’s company, and did not imply that he was okay with JINC remaining in the United States.
This emoji and these and other text messages neither (1) were “statement[s] with the requisite formality” that demonstrated Petitioner’s acquiescence; nor (2) displayed a “consistent attitude of acquiescence over a significant period of time.” These communications did not show, by a preponderance of the evidence, Petitioner’s subsequent acquiescence to JINC remaining in the United States, especially in light of Petitioner’s consistent efforts to have JINC returned to Honduras. See Friedrich II, 78 F.3d at 1070 (“He has resolutely sought custody of his son since that time. It is by these acts, not his casual statements to third parties, that we will determine whether or not he acquiesced to the retention of his son in America.”). Accordingly, the Court found that Respondent had not met her burden to prove Petitioner acquiesced JINC remaining in the United States by a preponderance of the evidence.
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.
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”).
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.
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.
