Eidem v Eidem, 2019 WL 6704977 (2d Cir.,2019) [Norway] [Grave risk of harm] [Petition granted]

In Eidem v Eidem, 2019 WL 6704977 (2d Cir.,2019) Respondent-Appellant Dana Marie Eidem (“Dana Marie”) appealed from a judgment of the District Court granting the application of Petitioner-Appellee Per Magne Eidem (“Per Magne”) for an order directing the return of his two sons to Norway. 

Dana Marie appealed only the District Court’s ruling with respect to her “grave risk” defense, which prevents signatory States from ordering the return of a child when “his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b) (“grave risk” defense). 

In 2008, Dana Marie and Per Magne, then married, had their first child, T.E., in Norway. Shortly after T.E.’s birth, he was diagnosed with Hirschsprung’s disease, a condition in which nerves in parts of the intestine are missing. As a result of his disease, when very young, T.E. underwent a “pull-through” surgery at a hospital in Trondheim to remove part of his colon. In 2010, the parties had their second child, N.E., who struggled academically from a very young age. Both children required psychological care. In June 2013, Dana Marie sought legal separation from Per Magne in Norway courts. The parties agreed to share custody of the children. Three years later, during the summer of 2016, Per Magne consented to Dana Marie traveling with the children to the United States for a one-year period, and Dana Marie and the children came to New York City. In January 2017, Per Magne began making arrangements with Dana Marie for the children’s eventual return to Norway. Dana Marie informed Per Magne that she would return with the children to Norway on August 8, 2017. On that day, Per Magne went to meet them at the airport where they were expected, but they did not appear. Still in New York City, Dana Marie proceeded to cut off all communication with Per Magne. On July 6, 2018, Per Magne petitioned in the United States District Court for the Southern District of New York for the children’s return.

On April 29, 2019, after an evidentiary hearing, the District Court granted Per Magne’s petition and ordered that the children be returned to Norway by June 29, 2019. It rejected Dana Marie’s “grave risk” defense, concluding that she did not sustain her burden of proof and that she lacked credibility. The District Court found that Dana Marie failed to establish that medical care in Norway “is so lacking” as to pose a grave risk to T.E.’s health or that the children would be deprived of adequate psychological care upon their return to Norway. Eidem v. Eidem, 382 F. Supp. 3d 285, 293-94 (S.D.N.Y. 2019).

The Second Circuit observed that because of the strong presumption that children should be returned to the place of their “habitual residence,” it interprets the grave risk defense narrowly. Blondin v. Dubois, 189 F.3d 240, 245-46 (2d Cir. 1999) (“Blondin I”).

On appeal, Dana Marie argued, inter alia, that (the record clearly established that an order directing the children’s return to Norway would place them at grave risk. She maintained that, in Norway, the children would have limited access to medical treatment and emergency services (for T.E.), and psychological supports for both children, each of whom had unique mental health and learning needs. The Second Circuit concluded that the record, as it existed after the October 8, 2018 hearing, established that the children would not be at grave risk if returned to Norway. Dana Marie failed to establish by clear and convincing evidence that in Norway the children would receive inadequate medical and psychological care. Neither Dana Marie nor the medical experts she relied upon took the position that in Norway, T.E. would not have any treatment or care for his disease. As the District Court noted, less than optimal medical care does not equate to grave risk and is not the standard set for permitting a parent to remove a child from his habitual residence. Eidem, 382 F. Supp. 3d at 293 (“[T]he narrow question before the Court is not whether [the doctors in New York] are best suited to manage T.E.’s condition, but whether access to medical care in Norway is so lacking as to pose a grave risk to T.E.’s health.”). In Blondin II, it ruled that the “grave risk” defense does not apply to “those situations where repatriation might [merely] cause inconvenience or hardship.” 238 F.3d at 162. It agreed with the District Court that Dana Marie did not establish by clear and convincing evidence that T.E. would receive inadequate medical care in Norway and would be subject to “grave risk.”

As to the children’s psychological care, the District Court reasonably credited the conclusion of Dr. Rahtz, a psychiatric evaluator who testified on Dana Marie’s behalf. Dr. Rahtz raised concerns about disrupting the children’s current support and care network in New York. But the District Court put the calculus appropriately: While disrupting the children’s current mental health treatment may not be desirable, the children had to undergo a similar disruption when [Dana Marie] first pulled them out of their mental health treatment programs in Norway and took them to the United States. Indeed, there was reason to believe that a return to Norway—where the children lived for the first eight and six years of their lives, and where the vast majority of their family resided—would be less traumatic than the original trip to the United States. Eidem, 382 F. Supp. 3d at 294.  It concluded that the record demonstrated that Dana Marie did not carry her burden of establishing her grave risk defense by clear and convincing evidence. 

Mohacsi, v. Rippa, 2019 WL 6810060 (2d Cir.,2019)[Hungary] [Grave risk of harm] [Petition denied]

In Mohacsi, v. Rippa, 2019 WL 6810060 (2d Cir.,2019) the Second Circuit affirmed a judgment, denying the petition of Petitioner-Appellant Gabor Zsolt Mohacsi claiming that Respondent-Appellee Isabella Sofia Rippa Herrera1 wrongfully removed the parties’ son, NIR, from Hungary and wrongfully retained him in the United States. 

Petitioner and Respondent met in Hungary and started dating when Petitioner was 38 and Respondent was 19. Soon after Respondent moved in with Petitioner, their relationship began to deteriorate. Respondent learned that Petitioner drank alcohol daily and used ecstasy. Petitioner began verbally abusing Respondent and demanding that she have sex with other men in front of him, which she resisted. One night, Petitioner invited a drug dealer to the house and told Respondent to have sex with him. Although she refused Petitioner’s request about ten times, she eventually relented because she felt that she had nowhere else to go that night. Petitioner videotaped the ensuing sexual encounter and uploaded it to his YouTube channel. The next day, he forced Respondent to watch the video during sex as a “punishment.” The verbal abuse and non-consensual sex continued, eventually accompanied by physical abuse. Petitioner physically assaulted Respondent on more than one occasion, slapping and choking her when he was angry.

The parties broke up in June 2014. At the time, Respondent was pregnant with NIR. After that, Petitioner made publicly available his videos of sexual encounters involving Respondent and sent her screenshots to remind her that she was “nasty and worthless.”. He also, on one occasion, threw a rock through the window of the apartment where Respondent was staying and threatened to kill her. Although Petitioner was sentenced to community service as a result of this incident, Respondent was unable to obtain a protective order.3

In August 2015, Respondent left Hungary for the United States with NIR, who was then less than a year old. In June 2016, a Hungarian court issued a paternity decision declaring Petitioner to be the father of NIR. Petitioner continued to harass Respondent, sending pornographic images of her to her father and threatening to show the pornographic images to NIR as well.

At the hearing in the District Court, Respondent presented unrebutted expert testimony from Dr. B.J. Cling, a psychologist specializing in domestic violence, harm against women, child abuse, and sexual harassment. Based on her psychological examination of Respondent, Dr. Cling testified that Respondent was suffering from mild post-traumatic stress disorder related to her relationship with Petitioner. Dr. Cling opined that Petitioner’s abuse of Respondent would likely continue and even intensify were Respondent to return to Hungary with NIR and that there was a “high likelihood” that NIR would develop a “psychological disorder should he witness such abuse.” Dr. Cling also testified that, statistically speaking, Petitioner was likely to abuse his child directly and that the incidents where Petitioner accosted Respondent when she was holding NIR indicated “a certain disregard of the child.” 

The District Court credited Respondent’s testimony, finding her demeanor believable and her testimony corroborated by the record, while Petitioner was “defensive,” “at times aggressive,” and sometimes “appeared to be simply lying.” The District Court also credited Dr. Cling’s testimony.

The District Court determined that Petitioner failed to establish a prima facie case of wrongful removal or wrongful retention, and that even if he could establish wrongful removal or wrongful retention, his petition would still be denied because Respondent established the applicability of two independently sufficient defenses. the District Court concluded, that Respondent established by clear and convincing evidence that NIR would face a “grave risk of harm” if returned to Hungary. With respect to Petitioner’s threat, the District Court noted that exposing young children to inappropriate sexual material can constitute psychological abuse. The District Court also determined that the protections available under Hungarian law were insufficient to mitigate the grave risk of harm to NIR given Petitioner’s testimony about his relationship with the local police commander and Respondent’s inability to obtain a protective order despite making multiple police reports about Petitioner.



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The Second Circuit observed that Under Article 13(b) of the Hague Convention, a court is not bound to order the repatriation of a child if “[t]here is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The establishment of such a risk is an affirmative defense to a claim of wrongful removal or retention under the Hague Convention. See Souratgar v. Lee, 720 F.3d 96, 102–03 (2d Cir. 2013).It found no factual or legal error in the District Court’s determination that the repatriation of NIR to Hungary would expose NIR to a grave risk of harm within the meaning of the Hague Convention. It is true, as Petitioner emphasized, that “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” The exception has been established, however, “where the petitioner showed a ‘sustained pattern of physical abuse and/or a propensity for violent abuse’ that presented an intolerably grave risk to the child.” “Evidence of ‘[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm defense.’” Here, the District Court’s assessment of grave risk was based not only on Petitioner’s abuse of Respondent but also on Dr. Cling’s testimony that Petitioner was statistically likely to abuse NIR directly and on Petitioner’s threat to show the pornographic images of Respondent to NIR. The credibility of that threat was borne out by the fact that Petitioner has sent such images to other members of Respondent’s family.

“Mindful that the assessment of the credibility of witnesses is peculiarly within the province of the trier of fact and is entitled to considerable deference,” Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 145 (2d Cir. 2000) it saw  no reason to question the District Court’s credibility findings in this case.

Petitioner also challenged the District Court’s decision to credit Dr. Cling’s testimony that Petitioner would likely abuse Respondent and NIR were they to return to Hungary, asserting that it is “improper generalized testimony” because Dr. Cling never examined Petitioner. The District Court addressed this point, which was made during cross-examination of Dr. Cling, by noting Dr. Cling’s explanation that her testimony was based on several psychological risk factors and statistics about abusers. Petitioner cited no authority indicating that it is improper for a district court to rely on a psychologist’s testimony if that testimony is based on social science research rather than in-person examination. Cf. Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000) (“[C]redible social science literature establishes that serial spousal abusers are also likely to be child abusers.”).

Petitioner asserted that his relationships with his other children were “devoid of any abuse.” Accepting as true the statements that Petitioner had not abused his other children, it could not say that the District Court clearly erred in giving greater weight to Dr. Cling’s testimony that Petitioner was statistically likely to abuse NIR. See United States v. Murphy, 703 F.3d 182, 188 (2d Cir. 2012) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). In any event, Petitioner’s relationships with his other children do not bear on whether he will abuse Respondent if she returns to Hungary.

Finally, Petitioner asserted that “Hungary provided ample protection for children and adults from domestic violence and other abuse. The only support in the record for that proposition was the testimony of Petitioner’s Hungarian law expert that Hungary’s Child Protection Act provides “different measures for the State to protect children.”. That Hungary has such a law does not undermine the District Court’s finding, based on the specific circumstances of this case, that the protections available under Hungarian law do not mitigate the risk of harm to NIR.

Díaz-Alarcón, V. Flández-Marcel, 2019 WL 6836785 (First Circuit, 2019)[Chile] [Standard of review] [Grave risk of harm] [Petition denied]

  In Díaz-Alarcón v. Flández-Marcel, 2019 WL 6836785 (First Circuit, 2019) the district court denied Alejandro Díaz-Alarcón petition for return of his daughter from the United States to Chile. The First Circuit affirmed. 

         Díaz-Alarcón and Flández-Marcel were Chilean nationals. Flández-Marcel gave birth to their daughter, ADF, in 2008, in Santiago, Chile. Díaz-Alarcón and Flández-Marcel married in 2009, separated in 2011, and divorced in 2014. They agreed that Flández-Marcel would have patria potestad (meaning “parental power”) over ADF, but that Díaz-Alarcón would have a “direct and regular relationship” with ADF through scheduled visits. In 2011, after Díaz-Alarcón and Flández-Marcel had separated. Flández-Marcel met and began dating Héctor Pérez-Babilonia, a Puerto Rico resident. ADF eventually started spending time with Pérez-Babilonia. And in 2013 Díaz-Alarcón overheard ADF call Pérez-Babilonia “dad.” Díaz-Alarcón, in his own words, “told [ADF] off,” explaining that Pérez-Babilonia “wasn’t her dad.” A few months later, Flández-Marcel had ADF evaluated by a child psychologist. And ADF got diagnosed with a possible “[a]djustment [d]isorder.” The staff there also interviewed Díaz-Alarcón, Flández-Marcel, and Pérez-Babilonia. Díaz-Alarcón said that both he and Flández-Marcel had verbally and psychologically abused each other. Flández-Marcel, for her part, accused Díaz-Alarcón of psychologically abusing her. After the interviews, a social worker concluded that ADF had [a]lienation [s]yndrome, which describes the change that occurs when there are conflictive marital break ups, in which the children censure, criticize or reject one of their parents in an unjustified and/or exaggerated manner. This implies that one parent systematically and consciously programmes the children to denigrate the other. Another social worker said that “it was demonstrated” that Díaz-Alarcón had not “mistreat[ed]” ADF, though adding that “it was demonstrated that the parents handled the family dynamic badly, often being prone to including the girl in conflicts between [them].”

           In 2014, a couple of weeks after Díaz-Alarcón and Flández-Marcel got divorced. Flández-Marcel asked the authorities in Santiago to issue a protective order for ADF and her against Díaz-Alarcón, accusing him of having committed the crime of “threatening with no aggravating circumstances against persons”. The authorities issued the protective order, telling the police to give “priority status” to calls from Flández-Marcel and to “periodic[ally] patrol []” her neighborhood. But they eventually closed the matter after the investigation unearthed no “information required to continue the case.” A few months later, in 2015, just before she married Pérez-Babilonia, Flández-Marcel asked a Chilean family court for permission to move to Puerto Rico for one year with ADF. In her petition, Flández-Marcel claimed that Díaz-Alarcón could not “be located.” After somehow learning about the petition, Díaz-Alarcón formally opposed Flández-Marcel’s request in papers filed with the court, saying she knew where he was and accusing her of being an unfit mother. The Chilean court then ordered Flández-Marcel to undergo a psycho-social evaluation, focusing on her parenting skills. A social worker interviewed ADF as part of the process. And ADF told her that Díaz-Alarcón “is a fighter [;] he always hits with a closed fist. I’ve seen it. If I say something to him, he hits me. If I ask him a question, he hits me. If I ask him if we can go to the park, he hits me. That’s how he was taught; violently. His mum and dad told me. Some other days he does not hit. Asked by the social worker “to think of some positive aspects of her dad,” ADF said that Díaz-Alarcón is “a happy and loving person” who “gives kisses” and “affection.” But she added that he “doesn’t listen” when she tells him “he shouldn’t hit [her] anymore.”

          After reviewing the evaluation, the Chilean court pushed Díaz-Alarcón and Flández-Marcel to reach an agreement. And they eventually did, agreeing, for example, that Flández-Marcel could take ADF to Puerto Rico from December 26, 2015 to March 26, 2016 and that Díaz-Alarcón would have “constant communication” with ADF as well as “additional days of visits” when she returned to Chile. The Chilean court entered the agreement as a final and enforceable judgment. Flández-Marcel and ADF flew out on December 27.

Once there, Flández-Marcel enrolled ADF in school for the semester starting in January 2016. Early in January, ADF had a Skype call with Díaz-Alarcón. Flández-Marcel was present too. ADF told Díaz-Alarcón that she never wanted to speak with him again. He asked her why. And she, according to Flández-Marcel, just screamed, “Cut, cut, cut.” So Flández-Marcel cut the call short. Flández-Marcel repeatedly asked ADF what was going on. According to Flández-Marcel, at first ADF would not say. But one day — after learning that Flández-Marcel was pregnant — ADF started hitting her and then screamed, “Don’t bathe me, don’t bathe me, don’t bathe me.” “Who is going to bathe you?” Pérez-Babilonia asked. “Don’t ask me,” ADF said.  At some point (apparently in January or February 2016), ADF told Flández-Marcel and Pérez-Babilonia the following — at least according to Flández-Marcel’s expert witness, Dr. Carol Romey: During a visit to his home when she was 5, Díaz-Alarcón had her take off her clothes to take a bath. He took off his clothes too, got into the tub, touched her “private parts,” and (per Pérez-Babilonia) had her touch his. She then saw a “white-yellow liquid come out of his penis.” After, he beat her “with a slipper [] many times all over,” walked “to the kitchen,” and made her “something to eat.” The deadline for ADF’s return to Chile — March 26, 2016 — came and went without her showing up. And she remained in Puerto Rico 

Díaz-Alarcón petitioned Puerto Rico’s federal district court, seeking ADF’s return. Flández-Marcel raised the grave-risk and child-objection defenses. The district judge referred the matter to a magistrate judge for an evidentiary hearing and a recommendation. Following the close of evidence, the magistrate judge issued a report and recommendation. On the grave-risk issue, the “critical question” being whether Díaz-Alarcón “sexually abused” ADF, the magistrate judge said that Dr. Romey (Flández-Marcel’s expert) testified “convincingly ... that [ADF] had suffered serious trauma and now suffers PTSD and anxiety.” Dr. Romey, the magistrate judge added, also found that ADF’s relationship with Díaz-Alarcón is the only “trigger” for her “PTSD and anxiety” and that “she would be at grave risk of a psychotic break if she were to be placed under [his] care ... until she can process her experiences.” But in the magistrate judge’s telling, Dr. Romey’s “purpose ... was to ... assess [] ... [ADF’s] maturity” and current “psychological state,” and so did “not speak directly to whether [Díaz-Alarcón] sexually abused [ADF].” Dr. Mercado-Colón (Díaz-Alarcón’s expert) did “speak directly to that issue,” the magistrate judge wrote. And having assessed ADF, Dr. Mercado-Colón “concluded that there was a suspicion of sexual abuse, just not by [Díaz-Alarcón],” given some incongruences” in ADF’s statements about the incident. Ultimately, the magistrate judge said that while ADF “may be a victim of sexual abuse, a preponderance of the evidence does not show that [Díaz-Alarcón] abused her. “On the child-objection issue, the magistrate judge said that ADF “clearly objected to returning to Chile.” Summarizing his in-chambers interview with ADF, the magistrate judge said that she knows the difference between telling the truth and telling a lie; is “intelligent and mature,” having “a good understanding of the decision facing her and specific reasons for her ... opinion”; and had not been “coached when she conveyed that she wanted to stay in Puerto Rico” — “she did not appear to be unduly influenced by the wishes of others such that her answers did not change even after [the magistrate judge] impressed upon her the importance of telling the truth.” And, the magistrate judge found, Dr. Romey’s report and testimony — e.g., that she has a “level of maturity clinically sufficient to be able to express her concerns and wishes in a reasoned and coherent manner” — supported these conclusions.

Based on his findings, the magistrate judge recommended that the district judge deny Díaz-Alarcón’s petition because (in his opinion), while Flández-Marcel cannot show “by clear and convincing evidence that [ADF] would be at grave risk if returned to Chile,” she can show “by a preponderance of the evidence that [ADF] is sufficiently mature to object to returning to Chile” and that she did so object.

Both sides objected to the magistrate judge’s report and recommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Giving the issues fresh-eyed “de novo review,” see Mercy Hosp., Inc. v. Mass. Nurses Ass’n, 429 F.3d 338, 343 (1st Cir. 2005), the district judge adopted the magistrate judge’s recommendation that Flández-Marcel proved by a preponderance of the evidence that ADF “is sufficiently mature to object to returning to Chile and that [she] does object to returning.”  On the grave-risk issue, the district judge highlighted how the magistrate judge never asked ADF to go into the details of the sexual abuse. Yet the district judge found that every time Dr. Mercado-Colón “revisited the subject of the sexual abuse, [ADF] would provide the same details” — including “that her father touched her private parts, that she was in the bathtub, and he went into the bathtub naked, that a liquid came out of his penis that was yellow and sticky.” And the district judge emphasized that “[t]hroughout the several interview sessions and the repeated questioning by Dr. Mercado[-Colón], [ADF] remained steadfast that it was [Díaz-Alarcón] who sexually abused her at his home.” So, the judge ruled, clear and convincing evidence established that ADF faces a grave risk of harm if sent back to Chile. And with that, the district judge dismissed Díaz-Alarcón’s petition, precipitating this appeal. 

The First Circuit reviewed the factfinding for “clear error,” see Darín, 746 F.3d at 8. But showing clear error is no easy task. See, e.g., United States v. Cates, 897 F.3d 349, 352 (1st Cir. 2018) (calling clear error’s “heights ... difficult to scale”). It is not enough that a finding strikes the court as possibly or even probably wrong. See Toye v. O’Donnell (In re O’Donnell), 728 F.3d 41, 45 (1st Cir. 2013). Rather, the finding must be “wrong with the force of a 5-week-old, unrefrigerated, dead fish.” It must be left “with the definite and firm conviction” that the finding is “a mistake.” (United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). While it reviews the judge’s factual findings for clear error, it determines de novo whether she interpreted and applied the Convention correctly. See, e.g., Neergaard-Colón v. Neergaard, 752 F.3d 526, 530 (1st Cir. 2014).

Díaz-Alarcón challenged the district judge’s grave-risk and child-objection conclusions. The Court began and ended with his grave-risk contentions, aware (to echo a point voiced by Danaipour I) that [t]he policy under the Convention of ... the United States government ... is weighted towards protection of the child when there is credible evidence of sexual abuse, particularly when the child is so young and when the allegations involve abuse by a parent. This policy informs the grave risk analysis. 286 F.3d at 16.

The Court found that Díaz-Alarcón’s first set of arguments which was directed at the district judge’s handling of the magistrate judge’s recommendations was to no avail.  Moving on, Díaz-Alarcón wrote that the district judge could have ordered ADF back to Chile without putting her in harm’s way by imposing “undertakings” — i.e., enforceable conditions on her return designed to keep her safe. See Danaipour I, 286 F.3d at 21-23; see also Danaipour v. McLarey, 386 F.3d 289, 302-03 (1st Cir. 2004) (hereinafter, Danaipour II). Separating permissible undertakings from impermissible ones is complicated stuff, however. See Danaipour I, 286 F.3d at 21-23. There are concerns for “international comity” — an American court, for example, should do nothing that “would smack of coercion of the foreign court.” And there are concerns about “the appropriateness of undertakings when the abducting parent claims to be protecting the child from abuse,” — some “authority,” for instance, “indicat[es] that undertakings should be used more sparingly when there is evidence that the abducting parent is attempting to protect the child from abuse,” Danaipour II, 386 F.3d at 293 (holding that a district court’s supportable finding that a child’s return “would cause grave harm” makes “immaterial” petitioner’s claim that the courts in the child’s country of habitual residence “could take ameliorative actions to prevent further harm,” adding that “[i]n such circumstances, [the Convention] does not require separate consideration either of undertakings or of steps which might be taken by the courts of the country of habitual residence”). Díaz-Alarcón had the burden of proof on the undertakings issue. See Danaipour I, 286 F.3d at 21, 26. But he dealt with none of these complexities. Which is not the way to turn the tide in his favor, since failing to give “serious treatment [to] a complex issue ... is not adequate to preserve the claim on appeal.” See Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011).

Díaz-Alarcón hinged his last set of arguments on caselaw indicating that a district judge “has discretion to order return even where such return poses a grave risk of harm or threatens to place the child in an intolerable situation.” See Lozano v. Montoya Alvarez, 572 U.S. 1, 21, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (Alito, J., concurring) As he sees it, the district judge “abused [her] discretion by not giving sufficient weight[,] if any,” to Flández-Marcel’s “inequitable conduct” (e.g., “conceal[ing]” ADF from him and “undu[ly] influenc[ing]” her), to ADF’s “interests” (e.g., Flández-Marcel “disrupt[ed] the strong and stable relationships [ADF] had in Chile”), and to the Convention’s “aims and objectives.” The First Circuit saw no reason to reverse.

It rejected Díaz-Alarcón’s contention that the district judge had no “awareness of [her] responsibility to weigh [] the relevant factors.” He played up these factors below, however. And the district judge said that she considered the “evidence presented.” “While a fuller explanation might have been helpful,” “the absence of a more detailed explanation does not amount to an abuse of discretion.” See Yaman v. Yaman, 730 F.3d 1, 22 (1st Cir. 2013).

The Court concluded that an appellant’s odds of winning a clear-error challenge are not very good. See, e.g., Cates, 897 F.3d at 352. This is especially so here, given how the district judge was uniquely situated to gauge ADF’s credibility. See, e.g., United States v. McGregor, 650 F.3d 813, 820 (1st Cir. 2011). Sure, maybe the district judge could have made different credibility findings or weighed the evidence differently. But that did not make her at-issue findings clearly erroneous. Ultimately, because none of Díaz-Alarcón’s arguments left it  with a “definite or firm conviction” that the district judge made “a mistake” or, more odoriferously, convinces us that she was “wrong with the force of a 5 week old, unrefrigerated, dead fish,” see Toye, 728 F.3d at 46, it could not  reverse her on the grave-risk issue — even if it would have reached a different a conclusion,. And given this ruling, it had no need to decide the child-objection issue.

Palomo v Howard, 2019 WL 6682989 (M.D. North Carolina, 2019) [Spain] [Habitual Residence] [Comity] [Petition granted]

In Palomo v Howard, 2019 WL 6682989 (M.D. North Carolina, 2019) the court granted the Petition of Olga Rodriguez for the return of her minor child, J.H.R., to Spain.

Petitioner gave birth to J.H.R. in 2010 in Spain. Respondent was the father of the child.  Petitioner and Respondent were married in Spain in April 2010. In October 2010, Petitioner, Respondent, and J.H.R. moved to Greensboro, North Carolina. Petitioner told Respondent, in early 2014, that she wanted the family to move back to Spain. Respondent agreed. Petitioner and J.H.R. moved to Spain first in April 2014, and Respondent moved to Spain in October 2014 to join them. After Respondent moved to Spain, he did not live with J.H.R. and Petitioner. J.H.R. lived with Petitioner in Petitioner’s mother’s apartment during this time. On October 24, 2014, Petitioner initiated divorce proceedings in the Court of First Instance No. 27 of Madrid. The Spanish court tried to summon Respondent by telephone on April 27, 2016, for a hearing on Petitioner’s custody and divorce filing. When he refused to come, the court entered a procedural default. That court issued a ruling on May 20, 2016, granting Petitioner sole custody of J.H.R., along with a divorce. Respondent appealed the order, arguing that he was deprived of due process for failure to receive notice of the proceedings. On September 26, 2017, the Provincial Court of Madrid, the Spanish appellate court, annulled the custody order granting Petitioner sole custody and ordered further proceedings. The Provincial Court agreed with Respondent and declared that he “had been left defenseless” to those proceedings. The Provincial Court also found that, at the time of the 2014 Spanish custody and divorce proceedings, Petitioner knew that Respondent had initiated custody proceedings in Guilford County Superior court, and that she failed to tell the Provincial Court of these proceedings. This order, however, did not divest Petitioner of custody rights. While Petitioner was pursuing divorce in the Spanish courts, Respondent filed an ex parte temporary custody petition in the Guilford County Superior Court. The Guilford County Superior Court entered a Permanent Custody Order granting Respondent sole custody on July 1, 2015. In August 2018, J.H.R. had been living in Spain with Petitioner for four years. Petitioner and Respondent were engaging in custody negotiations. Respondent and Petitioner agreed in writing that J.H.R. would go on vacation with Respondent for two weeks. Respondent instead took J.H.R. to North Carolina.

Petitioner went to the Court of First Instance in Madrid and received an order on September 7, 2018, which stated that it was in the interest of the child not to illicitly transfer him or remove him from his habitual residence with his mother. This order further dictated that Petitioner would exercise care and custody of the child and prohibited the removal of the child from Spain without judicial authorization. On January 22, 2019, Petitioner filed a Request for Return Application under the Hague Convention with the Central Authority for Spain. On June 18, 2019, the Court of First Instance No. 27 of Madrid issued an order concerning the return of J.H.R. to Petitioner. In that order, the Spanish court held that Respondent’s transfer of J.H.R. to Greensboro, North Carolina, constituted an illicit transfer in violation of Article 3 of the Hague Convention of 1980. The Spanish court found that Petitioner was exercising legitimate custodial rights over J.H.R. at the time Respondent took the child to the United States. The Spanish court also found that J.H.R.’s habitual residence was Madrid, Spain, where Petitioner had exercised lawful custody since 2014, “without opposition from the father,” that J.H.R. was enrolled in school, that Respondent “did not present a claim for restitution in the year that he was aware of the minor’s whereabouts,” and that Respondent lived in Madrid. On August 30, 2019, Petitioner filed the Verified Petition, seeking return of J.H.R. to Spain. 

The district court agreed with Petitioner that J.H.R.’s habitual residence was Spain at the time Respondent took him. It noted that as the Fourth Circuit stated in Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001), habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward.” (quoting Friedrich, 983 F.2d at 1401). “This is a fact-specific inquiry that should be made on a case-by-case basis.” Importantly, “a parent cannot create a new habitual residence by wrongfully removing and sequestering a child.” “Federal courts have developed a two-part framework to assist in the habitual residence analysis.” Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009). First, the court must determine “whether the parents shared a settled intention to abandon the former country of residence.”  (Mozes v. Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001)). Second, the court determines “whether there was ‘an actual change in geography’ coupled with the ‘passage of an appreciable period of time, one sufficient for acclimatization by the [child] to the new environment.’” Id. (quoting Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir. 2007)). The Fourth Circuit has adopted the Ninth Circuit’s framework for determining parental intentions in Hague Convention cases, due to the “[d]ifficulty [that] arises ... when the persons entitled to fix the child’s residence no longer agree on where it has been fixed—a situation that, for obvious reasons, is likely to arise in cases under the Convention.” Maxwell, 588 F.3d at 251.

The Court rejected Respondents argument that J.H.R.’s habitual residence was North Carolina, and his reliance upon  Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) and Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013). In Mota, the father traveled from Mexico to New York to find work, while the child and the mother remained in Mexico. The parents had the child smuggled into the United States, where she lived with her father. The mother, however, repeatedly and unsuccessfully tried to gain entrance into the country. The mother then filed a Hague petition in the United States. The Second Circuit affirmed the district court’s holding that Mexico was the child’s habitual residence, stating, “[the mother]’s intention that [the child] live in the United States only if she, as mother, were able to join [the child] there is dispositive of our determination of [the child]’s habitual residence.” The Second Circuit further noted that “[w]ere [the mother] unable to join her daughter in America, [the child]’s stay would be temporary, and the daughter would rejoin her mother in Mexico.”  Hofmann applied the holding in Mota to a situation involving a Canadian father and an American mother who had two children in Canada. Hofmann, 716 F.3d at 285. In August 2011, the respondent mother moved with the two children to New York to be near her family, as well as to begin the family’s relocation process. During this time, the petitioner father stayed in Canada while periodically visiting the rest of the family in New York. The petitioner and respondent opened up a joint bank account in New York in September 2011, and their oldest child began attending school in New York at around the same time. The district court noted, critically, that the parties “had not reached the unequivocal decision to relocate to New York” on the date the mother moved the children to New York. The district court finally found that the parties believed that their relocation to New York was predicated on them doing so as a family. The court credited both petitioner and respondent’s testimony on this point, and that respondent’s belief “was consistent with [his] other actions including his institution of this Hague Convention proceeding immediately after he was served with divorce papers.” 

Petitioner contended J.H.R.’s habitual residence was Spain, and Respondent contended that J.H. R’s habitual residence did not change from North Carolina when they moved to Spain in 2014. Petitioner, Respondent, and J.H.R. all lived in Spain from 2014 to 2018. Considering the factors laid out in Maxwell led the court to conclude that J.H.R. was acclimated to Spain. It was plain to the court the family as a unit manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move.” Maxwell, 588 F.3d at 251. Respondent admitted at the trial that it was their intent to remain in Spain, in his view, as husband and wife. The factors led the court to conclude that Petitioner met her burden of proving by a preponderance of the evidence that the last shared parental intent was to make Spain J.H.R.’s habitual residence, either as a family or not. Moreover, even if Petitioner thwarted the intent to live in Spain as a family, and the last shared parental intent was for the United States to be J.H.R.’s habitual residence, as Respondent claimed, the court distinguished this case from the fact patterns of Mota and Hofmann. In contrast to the petitioner in Mota, Respondent here was able to enter Spain; he was not barred from joining J.H.R. in the country. Mota involved a “stranded parent,” whereas the present facts did not indicate a case of a stranded parent who cannot enter the country to be with the child; Respondent admitted that he lived in Spain for four years, saw his son, and gained Spanish residency as the father of a Spanish national. Mota was inapplicable to the facts in this case. The Court acknowledged that the present case and Hofmann bear similarities. In both, mothers went to new countries with their children, followed by fathers whom the mothers promptly divorced. However, even taking Respondent’s view of the facts, there was at least one material fact distinguishing the two cases: Respondent did not file his own Hague petition once he realized his wife wanted a divorce and that the intention of living in Spain as husband and wife was thwarted. Unlike the respondent father in Hofmann, who immediately filed Hague Convention proceedings upon being served with divorce papers, Respondent chose the route of inaction under the Hague Convention. He never filed a Hague petition. Instead, he lived in Spain for four years until he engaged in self-help and illegally removed his child in conscious disregard of a contract he had signed, which is precisely what the Hague Convention was meant to prevent. See Miller, 240 F.3d at 401 n.13.
 Hofmann was not applicable to the facts here. If Respondent wanted to avail himself of the thwarted intent defense as stated in Hofmann, Respondent should have filed a Hague Petition in 2014, not waited four years before absconding with his child to another continent.

Because Spain was J.H.R.’s habitual residence, Spanish law guided as to whether J.H.R.’s removal was in violation of Petitioner’s custody rights. The Fourth Circuit has deferred to a foreign court’s determination that the left-behind parent was exercising custody, on the grounds that the court’s determination was reasonable and that the respondent failed to provide any reason to question the foreign court’s decision. Miller, 240 F.3d at 400–01. The Fourth Circuit’s analysis in Miller was instructive. As in Miller, there were dueling custody orders here – Petitioner received an order for full custody from the Spanish courts, and Respondent received an order for full custody from the Guilford County court. The June 18, 2019 order from the Spanish Court of First Instance concluded that Petitioner had custody rights at the time of the removal. This court considered the Spanish court to be a competent judicial body, and that court determined that Petitioner was entitled to custody of J.H.R., despite the North Carolina order, at the time Respondent removed J.H.R. from Spain.  Respondent had not provided “any authority from [Spain] undermining this decision or any other reason to question the [Spanish] court’s interpretation of the law of its own country.” The court saw no reason not to defer to the Spanish court’s findings. The court concluded that Petitioner had valid custody rights, based in either the June 18, 2019 Spanish order or, alternatively, in Spanish civil law, and therefore found that Petitioner demonstrated by a preponderance of the evidence that the second prong was satisfied. Here, Petitioner was clearly exercising her custody rights. Petitioner therefore established a prima facie case of wrongful removal under the Hague Convention.

The Court rejected Respondents defenses. Respondent raised the defense of unclean hands.  “Unclean hands” is not a supported defense to a Hague Petition.” Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir. 2010) . The Fourth Circuit has also stated that the doctrine of equitable estoppel — an equitable remedy like the doctrine of unclean hands — is inapplicable in Hague Convention cases. Katona v. Kovacs, 148 F. App’x 158, 161 (4th Cir. 2005). 

The Court rejected Respondents argument that foreign judgments are not entitled to full faith and credit. “[T]hough foreign judgments are not entitled to full faith and credit, comity is at the heart of the Hague Convention.” Smedley v. Smedley, 772 F.3d 184, 189 (4th Cir. 2014) American courts will thus “normally accord considerable deference to foreign adjudications as a matter of comity.” Miller, 240 F.3d at 400. [W]e may properly decline to extend comity to the [foreign] court’s determination if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Smedley, 772 F.3d at 189 (quoting Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir. 2009)) This court extended comity to the Spanish court’s June 18, 2019 custody decision.

The Court rejected Respondent’s claim that the doctrine of res judicata prevented Petitioner from bringing her Hague petition. This argument flies in the face of the purposes of the Hague Convention. Holder v. Holder, 305 F.3d 854 (9th Cir. 2002). It also rejected Respondent’s contention that the Rooker-Feldman doctrine bared the court from adjudicating Petitioner’s Hague petition. The Rooker-Feldman doctrine does not apply to Hague Convention cases. Silverman v. Silverman, 338 F.3d 886, 895 (8th Cir. 2003); Mozes, 239 F.3d at 1085 n.55. 

The Court rejected the argument that J.H.R. wished to stay in North Carolina with Respondent, that he was “well settled” in the United States, and that it was in his best interest to stay in North Carolina. The court found that the “well settled” defense may not be asserted here. This defense may be asserted only when an “action [is] not commenced within one year of the abduction.” Miller, 240 F.3d at 399. Here, Petitioner filed her Hague petition within one year and thus this defense was inapplicable. Also, a after conducting an in-camera interview with J.H.R., the court found that J.H.R. had not reached an age and degree of maturity such that it was appropriate to consider his opinions as to where he wanted to live, nor did J.H.R. express a preference for one parent over the other. 

Hart v Anderson, 2019 WL 6253248 (D. Maryland)[France] [Habitual residence] [Grave risk of Harm] [Petition granted]

In Hart v Anderson, 2019 WL 6253248 (D. Maryland) the Court granted the petition of Markku Toryalai Hart for the return of his children to France after his wife, respondent Sally Belco Anderson brought them to the United States without Hart’s consent. 

Hart, a dual citizen of the United States and United Kingdom, and Anderson, a U.S. citizen, first met in the spring of 2010 in Bamako, the capital of the African nation of Mali. They commenced a relationship that summer and began cohabitating in August of that year. Both parties had significant connections to Mali, When the parties met, Anderson had just moved to Mali from Virginia and begun teaching preschool at the American International School of Bamako. Hart was a self-employed consultant. Hart has served as a contractor for international organizations including the World Health Organization, UNICEF, and PATH, which have typically retained him for contracts that have lasted less than one year in nations including the Maldives. In the summer of 2011, Hart took Anderson for the first time to a house owned by his mother in Usinens, France.Hart and Anderson married in March 2012 and had their first child, A.M.A.H, the following month. Due to difficulty obtaining prenatal care in Mali, the parties decided that Anderson would travel to Indiana and stay with Hart’s mother to have the child. Hart arrived there after Anderson, who stayed with Hart’s mother from December 2011 through approximately April 2012. The family was unable to return to Mali immediately after A.M.A.H. was born because of a military coup, but returned to Bamako after approximately six months. Hart, Anderson, and A.M.A.H. visited the Usinens House again in the summer of 2013. In August 2013, Hart began a contract with UNICEF that required him to reside in Mali for three years on consecutive 11-month contracts with breaks of one to two months in between. In the same period, Anderson became pregnant with the couple’s second child, E.S.A.H., and proactively traveled to Virginia in January 2014 to stay with her parents to have the child, who was born in March 2014. Hart came to Virginia for two to three weeks around the birth, but returned to Mali soon after. Two months later, Anderson and the children returned to Mali and lived with Hart 

There was no serious dispute regarding Petitioner’s claim that he was exercising his custodial rights at the time the children were removed, and that the removal breached those custody rights. Hart has met his burden on those prongs by submitting an unrebutted affidavit of a French attorney that described relevant provisions of French law and the custody rights that they established for Hart. As for their exercise, the Fourth Circuit has adopted a test that directs courts to “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Bader, 484 F.3d at 671 (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir. 1996)). Given that Hart was cohabitating continuously with Anderson and the children, his exercise of custody rights under this test could not be disputed. 

The Court’s analysis focused on whether the children were habitually resident in France, at the time of removal. Federal courts have developed a two-part framework to assist in the habitual residence analysis. Under this framework, the first question is whether the parents shared a settled intention to abandon the former country of residence. The second question under this framework is whether there was ‘an actual change in geography’ coupled with the ‘passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment. 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. Maxwell, 588 F.3d at 252 (alteration in original) (quoting Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir. 2005)). Courts must examine the “subjective intentions of parents to determine whether the parents shared an intent to adopt a new country of residence for their children.”  “Federal courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence.” 

The court found that the habitual residence of the children was France before Anderson removed them to the United States. Anderson contended that the Petition had to be denied because the children were habitual residents of either Mali or the Philippines at the time Anderson took them to the United States, or possibly had no habitual residence at that time. Significantly, the Court noted that Mali is not a party to the Hague Convention, and the Convention is not in force between the United States and the Philippines. Hart’s prima facie case therefore turned on whether he met his burden to show that France was the children’s habitual residence when they were taken to the United States on July 16, 2019.

As an initial matter, the Court was unpersuaded by Anderson’s alternative argument that the children had no habitual residence at the time of removal. It was quite clear that Hart and Anderson’s family can be fairly described as nomadic, but the case law that Anderson cited to claim that a child may have no habitual residence only describes children moved between countries shortly after their birth. See Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006); Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003); see also Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004). Anderson pointed to no authority, nor was the Court aware of any, that contemplates extending this concept beyond very young children in that specific situation. 

The Court concluded that France was the children’s habitual residence when Anderson took them to the United States on July 16, 2019. The two-part habitual residence framework summarized by the Fourth Circuit in Maxwell produced the conclusion that the parties abandoned Mali for France in 2016 but did not abandon France for the Philippines in 2018. Hart and Anderson both testified that they jointly made the decision to leave Mali in January 2016 because of security concerns and the expiration of Hart’s employment contract. They considered a move to the United States but decided against it. They instead together chose to bring their children to the Usinens House in France where they could live rent-free and enroll the children at the local Ecole Primaire de Challonges. Crucially, the parties left no belongings in Mali, selling or giving away their furniture and their car and shipping the remaining items to the Usinens House. The parties both testified that while they discussed someday returning to Mali if it became more politically stable, they had no specific plans or intentions to return there when they departed. Plainly, Hart and Anderson “shared a settled intention to abandon” Mali when they left for France in 2016. Maxwell, 588 F.3d at 251.

The Court turned to whether France became and remained the habitual residence of the children, despite the time spent in the Philippines, and answered that question in the affirmative. First, the Court found sufficient evidence to establish that the parties intended France to be the children’s habitual residence.The seven factors identified by Maxwell for determining a shared, settled intent did not overwhelmingly indicate shared intent to remain in France, but this was an unusual case of a highly nomadic family that never set down roots deeply in any one place. 

Article 13(b) of the Hague Convention establishes an exception that Anderson asserted here. Under that exception, “the Court ‘is not bound to order the return of the child’ if the respondent can establish by clear and convincing evidence that ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ This defense, however, “is a narrow one,” Miller, 240 F.3d at 402, and is interpreted and applied in that manner “[t]o avoid circumventing the underlying purpose of the Hague Convention.” Luis Ischiu, 274 F. Supp. 3d at 350 (citing Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007)).

Importantly, the respondent ‘must show that the risk to the child is grave, not merely serious. The potential harm to the child must be severe, and the ‘[t]he levels of risk and danger required to trigger this exception has consistently been held to be very high.’” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) The risk must be more than the trauma associated with uprooting and moving the child back to the country of habitual residence. Luis Ischiu, 274 F. Supp. 3d at 350. The exception “typically applies to situations involving sexual abuse, significant physical and verbal abuse of the child, or domestic abuse of a spouse in the presence of the child.” Kovacic v. Harris, 328 F. Supp. 3d 508, 520 (D. Md. 2018) “It does not apply to allegations of ‘poor parenting’; it is not the court’s role to ‘determine whether one parent would be better than the other, or whether the environment offered by Respondent is superior to the environment offered by Petitioner.

Anderson asserted that returning the children to France would expose them to a grave risk of harm because Hart abused her in their presence. While the Court in no way condoned Petitioner’s behavior and treatment of Respondent, in light of the narrowness of the grave risk of harm exception, the clear and convincing evidentiary burden that Anderson must meet, and the relative lack of evidence that she put forth demonstrating abuse of the children or abuse of her in front of the children, the Court found that the exception does not apply. To begin, there wass no evidence and Anderson did not allege, that Hart ever subjected either of the children to abuse or violence of any kind. Almost, the children were only present for one of the physical altercations between Hart and Anderson – a January 2019 incident in the Philippines when Hart “dragged” Anderson out of bed – and it was uncontested that they were not awake until after the physical contact had ended. That rendered this case much more comparable to those in which a grave risk of harm was not found, despite evidence of a father’s physical abuse of his children’s mother. For example, in Souratgar v. Lee, the Second Circuit affirmed a district court’s finding that no grave risk of harm existed where the father repeatedly kicked, slapped, grabbed, and hit the mother, and engaged in shouting and offensive name-calling, but never in the child’s presence. 720 F.3d at 100, 104–05. Similarly, the Tenth Circuit in Gil-Leyva v. Leslie affirmed a finding that no grave risk existed where the father slapped and shoved the mother several times, once choked her with his hands, and threw things, but was never physical toward the children aside from a small number of spankings, and never abused the mother in front of the children except for occasionally slapping her with force on her buttocks. 780 F. App’x 580, 590– 91 (10th Cir. 2019). The court found that evidence was deeply concerning and would be relevant in custody proceedings in the courts of the children’s country of habitual residence but was insufficient to prove that a grave risk of harm would exist if the children were returned there. Likewise, here, Respondent did not establish by clear and convincing evidence that granting the Petition would expose the children to a grave risk of physical or psychological harm. Nor did Anderson’s testimony that Hart was a neglectful father who did not and cannot adequately care for the children. That is an inquiry properly reserved for custody courts. Alcala, 826 F.3d at 171. Based on the Court’s observations, Respondent’s concerns for her husband’s use or abuse of alcohol and the anger it appears to cause in him were well-founded. But, given the purposes of the Hague Convention, moving his children to another country was not an appropriate way to “get his attention,” which she acknowledged was her primary objective. Her words also undercut the notion that she genuinely perceived that the children would be subject to a grave risk of harm if returned to France.

Stone v. Stone, 2019 WL 6790500 (D. New Jersey, 2019)[Israel] [Habitual residence] [Wrongful removal] [Petition denied]

In Stone v. Stone, 2019 WL 6790500 (D. New Jersey, 2019) the District Court denied Petitioner Yerucham Stone’s September 12, 2019 petition for the return of his three minor children to Israel.

Petitioner and Respondent were both United States citizens who were born in New Jersey. Both parties and the Minor Children were Orthodox Jews. Nearly all of the parties’ close familial relatives lived in the United States. Petitioner iwas a Talmudic scholar who began studying in Israel in or around 2010. Petitioner and Respondent met in Israel in August 2013, and married in a religious ceremony in New York on December 5, 2013. The couple had three minor children: D.S., age 5; R.S., age 3; and M.S., age 1. Although the Minor Children were born in Israel, they were solely citizens of the United States. Throughout the duration of their marriage, the parties primarily resided in Israel and made frequent return trips to the United States. 

In or around August 2018, Petitioner signed a five-year lease on an apartment. The parties subsequently invested the equivalent of approximately $10,000 to renovate the apartment. Petitioner entered Israel pursuant to an A2 student visa, which expired in 2023. Respondent, as the spouse of an individual present on an A2 visa, was permitted to remain in the country on an A4 accompaniment visa. Because Petitioner was present in Israel on a student visa, neither he nor Respondent was legally permitted to work in the country. The parties painted vastly different pictures of life in Israel. Respondent testified there were several times when the family could not afford to buy food for the Sabbath. Respondent alleged that Petitioner “began exercising more and more control over [her], refusing to give [her] any funds, or ... allow [her] to buy any clothing” and also described a general feeling of isolation. Respondent and the Minor Children had great difficulty communicating in Israel because they only spoke English and did not speak Hebrew.
When the parties traveled within the country, they primarily did so either on foot or via public transportation because they did not own a car. In February 2019, Respondent told Petitioner that a family emergency required her to return to New Jersey. Respondent testified that she fabricated the story because she “was pretty much sure that [Petitioner] would not allow [her] to leave if [she] were to tell him the truth of why [she] was leaving.” 

On February 23, 2019, Respondent flew to the United States, along with M.S., on roundtrip tickets, with a stated return date of March 7, 2019. Upon Respondent’s arrival the parties engaged in a telephone conversation wherein” Respondent asked Petitioner to travel to the United States so the two could share “vacation time” together. On March 14, 2019, Petitioner, D.S., and R.S. flew to the United States on roundtrip tickets, with a planned return date of April 30, 2019. Petitioner. D.S., and R.S. never used the return tickets. 

On or about March 24, 2019, once all five members of the family were present in New Jersey, Respondent informed Petitioner that she would not return to Israel. Petitioner testified that after this pronouncement, he never agreed to remain personally in the United States, nor did he explicitly agree that the Minor Children would remain in the United States. The Court found Petitioner’s testimony on this subject to be credible. Respondent further testified that while she knew Petitioner preferred to live in Israel, she “thought he decided to put our family as a preference before his preference of living in Israel.” The Court also found Respondent’s testimony to be credible. The Court, nevertheless, found that Petitioner’s subsequent actions demonstrated his willingness to remain in the United States and vitiated any explicit opposition he may have previously expressed.

On or about March 25, 2019, D.S. began attending kindergarten in Lakewood, New Jersey. On or about March 28, 2019, R.S. began attending Rivkie Schuster Play Group. Petitioner began attending lectures on the Talmud in Lakewood. New Jersey. During their time in the United States, until or around May 14, 2019, the parties primarily lived in the basement of Respondent’s brother, in Toms River, New Jersey. In April 2019, the parties executed a month-to-month lease on an apartment in Lakewood, New Jersey to begin on May 14, 2019. On or about April 12, 2019, Petitioner submitted an application to the appropriate New-Jersey state entities for Medicaid and other benefits. Petitioner averred on the application forms that he, Respondent, and the Minor Children were all residents of New Jersey. 

At some point during the Spring of 2019, Petitioner sought to secure a position at the Kollel. On May 5, 2019. Petitioner began studying at Yeshivas Be’er Yitzchok in Elizabeth, New Jersey. In or around May 2019, Petitioner spoke with Rabbi Sruly Blobstein about potentially securing a job for Respondent. Petitioner informed Rabbi Blobstein that Respondent had told him she did not wish to return to Israel. On or about September 5, 2019, D.S. began another year of kindergarten at Meoros. On September 12, 2019, Petitioner filed the petition. On October 17. 2019, Petitioner served Respondent with a copy of an Israeli Custody Complaint, filed in Family Court in Israel seeking a custody determination by that court. 

The Court noted that the Third Circuit has articulated four considerations relevant to determine whether a removal or retention was wrongful. Courts should consider: (1) when the removal or retention at issue occurred, (2) the child’s place of habitual residence immediately prior to the removal or retention, (3) whether the removal or retention violated the petitioner’s custody rights, and (4) whether the petitioner was exercising those rights at the time of removal or retention. Baxter, 423 F.3d at 368; see also Mozes, 239 F.3d at 1070. The date of removal or retention “establish[es] the relevant date of [the children’s] habitual residence for purposes of the Convention.” Karkkainen, 445 F.3d at 290. “[R]emoval refers to the parent’s physical taking of the child out of the country; [] retention refers to the parent’s keeping the child out of the country.” De La Vera v. Halguin, No. 14-4372, 2014 WL 4979854, at *6 (D.N.J. Oct. 3, 2014) (citing Baxter, 423 F.3d at 369).  

 “The inquiry into a child’s habitual residence is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case. In the Third Circuit, a child’s habitual residence is the place “where he or she 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.” Feder, 63 F.3d at 224. Courts balance the “child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.” “The first step towards acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Maxwell v. Maxwell 588 F.3d 245, 251 (4th Cir. 2009). When determining whether a change has occurred, courts will consider whether there has been “an actual change in geography” and a “passage of an appreciable period of time, one sufficient for acclimatization” by the children to the new environment. Papakosmas v. Papakosmas, 483 F.3d 617. 622 (9th Cir. 2007) (quoting Mozes, 239 F.3d at 1078)

Petitioner argued that Respondent wrongfully removed M.S. to the United States on February 23, 2019, when she traveled to New Jersey after lying to Petitioner about the reason for her trip. M.S. was one year old and had lived nearly his entire life in Israel, except for one trip to the United States. The Court, therefore, found M.S.’s habitual residence immediately preceding his removal to the United States was Israel. Respondent traveled with M.S. from Israel to the United States on February 23, 2019. The date of the alleged wrongful removal as to M.S., therefore, was February 23, 2019.

The critical inquiry for the analysis was whether the removal was “wrongful.” Respondent’s misrepresentation as to her personal impetus for the trip, alone, did not constitute a wrongful removal. See, e.g., Roche v. Hartz, 783 F. Supp. 2d 995, 1002 (N.D. Ohio 2011) (finding respondent-mother’s use of “misrepresentation to induce [petitioner-father] into agreeing to the trip” did not constitute a wrongful removal). On February 27, 2019, Petitioner traveled to the United States and met with Respondent. Petitioner never alleged Respondent denied him access to M.S. during this time. On March 7, 2019, Petitioner left M.S. in New Jersey with Respondent and returned to Israel. At no point during this time period, nor during the months preceding August 22, 2019, did Petitioner express to Respondent that he no longer consented to M.S.’s continued habitation with her in New Jersey. Nor did Respondent prevent Petitioner from exercising his legal custody rights. The Court, accordingly, found that as of February 23, 2019, Petitioner’s custody rights were not breached. The Court, therefore, found that M.S. was not wrongfully removed from Israel.

 Petitioner argued that by the time the Petition was filed, the “[Minor Children] had been definitively wrongfully retained in the United States [for] approximately four and one [-] half months.” Petitioner’s assertion would place the date of wrongful retention at some time towards the end of April or early May 2019. This date, however, conflicted with Petitioner’s Israeli Family Court Filing. Furthermore, this assertion conflicted with the actions taken by Petitioner subsequent to the alleged wrongful retention. A child is wrongfully retained on “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, 866 F.3d at 179. Here, although Petitioner may have expressed a desire to return to Israel, he equivocally communicated to Respondent that he no longer consented to the Minor Children’s habitation with Respondent in New Jersey. The Court found, then, that the date of retention was not until August 22, 2019, when Respondent took the Minor Children from the Lakewood Apartment to Menachem Leibowitz’s Home, that Petitioner withdrew his consent for the Minor Children’s co-habitation with Respondent. Accordingly, for the purposes of the habitual residence analysis, the relevant date was August 22, 2019. See Karkkainen, 445 F.3d at 290 (holding the date of retention establishes the relevant date for determining a child’s habitual residence, for purposes of the Hague Convention); see also Blackledge, 866 F.3d at 179 (holding that because the petitioner never “clearly and unequivocally withdrew his prior consent,” the date of retention was the date the petition was filed).

Petitioner asserted that there was never a shared intent between the parties to abandon Israel as the Minor Children’s habitual residence. Petitioner’s argument was unconvincing. The sum total of his actions, considered along with the acclimatization of the Minor Children, led the Court to conclude that as of August 22, 2019. the Minor Children’s habitual residence was New Jersey. When a move includes “a degree of settled purpose” courts have found that a child’s habitual residence has changed. This “settled purpose” may be for a limited period of time and does not require an intention to stay in the new location indefinitely. Feder, 63 F.3d at 223-24. Here, while the Court agreed that the Minor Children’s presence in New Jersey was initially intended, at least by Petitioner, to be for a limited period of time, their continued presence in the state, coupled with numerous actions taken by the parties, including Petitioner, constituted a sufficient degree of settled purpose to change their habitual residence. After conducting a fact-intensive analysis, the Court found that there was shared parental intent to remain in New Jersey, for at least a period of time. There was, therefore, shared parental intent to abandon Israel as the Minor Children’s habitual residence and establish New Jersey as their new habitual residence.

The Court balanced the “shared parental intent” with the “acclimatization of the child,” in reaching its determination. See Whiting, 391 F.3d at 546. Finally, because R.S. was three years old, the Court considered both the “very young child” standard articulated in Karkkainen, and the acclimatization factors it considered for D.S. As with M.S., there was a shared parental intent for R.S. to remain in New Jersey for at least a limited period of time. Turning to the acclimatization factors, considering R.S.’s young age and her rapid acclimation to an educational environment where she was able to speak the language, the Court found R.S. had developed a set routine and acquired a sense of environmental normalcy. Due to these factors, the Court found R.S.’s habitual residence on August 22, 2019 was New Jersey. The Court weighed both the evidence of shared parental intent and the acclimatization of the Minor Children, and found the Minor Children were habitually resident in New Jersey on August 22, 2019. Because the Court found the Minor Children were habitually resident in New Jersey on the date of the alleged retention, the Court found Petitioner’s custody rights were not breached and, therefore, the retention was not wrongful under the Hague Convention. The Court held the Minor Children were not wrongfully retained by Respondent in New Jersey. Because M.S. was not wrongfully removed and because the Minor Children were not wrongfully retained, the Court, denied the Petition. 

La Salle v. Adams, 2019 WL 6135127 (D. Arizona, 2019)[Canada] [Habitual residence] [Grave risk of harm] [Petition granted]

In La Salle v. Adams, 2019 WL 6135127 (D. Arizona, 2019) the district court granted the petition of Kimberly Colin La Salle (“Mother”) against Dominick Johnathan Adams (“Father”) for the return of their two minor children, E.N.A. and M.E.Y.A. to Canada. 

  In April 2011, Mother and Father were married in Alberta, Canada. Mother was a citizen of Canada; Father was a citizen of the United States who had status to live and work in Canada because Mother sponsored his application for a visa. In August 2012, E.N.A., a boy was born in Canada. In January 2014, the couple’s second child, a girl named M.E.Y.A., was born in Canada. Mother, Father, and the Children lived together in Canada until around March 2017, when Mother and Father’s marriage began to deteriorate. The deterioration was caused by several factors, including Father’s failure to provide consistent financial support and Mother’s romantic relationship with another man, Howard LaSalle (“LaSalle”), whom she eventually married. In early 2017, as the marriage was falling apart, Mother withdrew her sponsorship for Father’s visa. Mother credibly testified during the evidentiary hearing that she did so out of necessity—Canadian law requires the sponsor to be the spouse or significant other of the visa applicant (and the relationship was heading toward a divorce) and Canadian law also obligates the sponsor to provide financial support to the visa applicant (which Mother could not afford to do). As a result, in July 2017, Father received formal notification from the Canadian government that he would be losing his immigration status in Canada. In 2017, Mother and LaSalle had a child together (who will be referred to by his first initial, “X”)  

Although Mother and Father stopped living together in 2017, they did not finalize their divorce until October 2018. The divorce decree, which was issued by a Canadian court on October 2, 2018, specifically provides that Mother and Father “have joint custody of the children of the marriage.” The divorce decree provides that Father is responsible for providing the Children’s “primary residence” and “day to day care and control” but clarified that Mother was entitled to “access with the children every other weekend commencing September 1, 2017 and continuing thereafter until further Order of the Court,” with Mother “responsible for picking the children up at the commencement of her access and dropping the children off at the end of her access at [Father’s] residence.” Additionally, the divorce decree provided that Mother and Father must “equally share all school vacations and holidays” and that each parent must “have direct or indirect access to education, counselling, therapy, daycare services, and any other information regarding the welfare of the children.” Finally, the divorce decree provided that each parent may “travel with the children within Canada and outside of Canada without the written consent of the other party provided the person travelling with the children provides the non-travelling party with a travel itinerary and contact information.” 

In late February 2019, Father moved to Arizona and took the Children with him. At the time of the move, the Children were enrolled in school in Canada. After arriving in Arizona, Father and the Children began living with Father’s parents (the Children’s grandparents).
Father initially lied to Mother about the nature of the trip to Arizona, falsely characterizing it as a “vacation.” On March 10, 2019, Mother emailed Father to complain that he’d violated the terms of the divorce decree by failing to identify where the Children were located. The next day, Father responded by providing an address in Sun City, Arizona. Around this time, Mother visited the home where Father had been living in Canada. Upon arrival, Mother realized Father hadn’t simply taken the Children on a temporary vacation—the house was empty, the refrigerator was cleaned out, and it was clear “[t]he kids have obviously been moved.” In early April 2019, Mother contacted law enforcement officials in Arizona for assistance. Mother also sent another email to Father asking him to immediately “provide...a return date of when the children will be brought back [to Canada].” In response, Father vaguely stated that he would be “heading back” at some point after his father’s surgery in June 2019. This, too, was a false statement. Father never returned to Canada, prompting Mother to initiate this proceeding in August 2019.

  The Court noted that first question to be addressed in an ICARA proceeding is “[w]hen did the removal or retention at issue take place?” Mozes, 239 F.3d at 1070. The evidence introduced during the evidentiary hearing established that the challenged removal occurred in late February 2019, when Father took the Children to Arizona. To the extent the initial removal wasn’t wrongful (because Father was allowed, under the divorce decree, to take the Children on short international vacations without Mother’s permission), his retention of the Children in Arizona because wrongful in March 2019, once Mother began missing the every-other-weekend visits to which she was entitled under the divorce decree.

The second question to be addressed in an ICARA proceeding is “[i]mmediately prior to the removal or retention, in which state was the child habitually resident?” Mozes, 239 F.3d at 1070. Here, Canada was the Children’s country of habitual residence in February/March 2019. 
The Children were born in Canada, lived their entire lives in Canada, attended school in Canada, had a Canadian mother, and had Canadian citizenship. The evidence presented during the evidentiary hearing suggests the Children spent every moment of their lives in Canada until they were taken to Arizona. This should end the inquiry. In re A.L.C., 607 Fed. App’x 658, 662 (9th Cir. 2015) (“The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided....[W]e recognize the obvious truth that ‘habitual residence cannot be acquired without physical presence.’ ”). Although neither parent specifically addressed the concept of residential intent when testifying during the evidentiary hearing, there was strong circumstantial evidence that Mother and Father had a shared, settled intent to reside permanently in Canada. Holder, 392 F.3d at 1017 (parental intent may be expressed not only through “the representations of the parties” but also through “all available evidence”). Indeed, Mother was a Canadian citizen who appears to have lived in Canada for all of her adult life and Father lived in Canada from at least 2011 through February 2019, leaving only after he lost his immigration status and was unable to identify an alternative means to secure legal status. To the extent the concept of acclimatization was even applicable here, it did not change the analysis. See generally Murphy, 764 F.3d at 1152-53 (noting that “courts should be slow to infer [acclimatization], both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention”) During their brief time in Arizona, the Children have barely even attended school and they retain deep familial ties to Canada.

The third question to be addressed in an ICARA proceeding is “[d]id the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?” Mozes, 239 F.3d at 1070. Here, the answer was yes. First, Mother possessed rights of custody to the Children under the law of Canada. Indeed, the divorce decree expressly states that Mother and Father share “joint custody of the children of the marriage.” Father breached Mother’s custodial rights when he relocated the Children to Arizona in February 2019. 

In his answer, and to some extent during the evidentiary hearing, Father argued that his decision to take the Children to Arizona wasn’t wrongful because Mother caused him to lose his immigration status in Canada (by withdrawing her support for his visa application) and thus left him with no choice but to take the Children. This argument lacked merit for three reasons. First, Father had not cited any authority suggesting that “unclean hands” is available in an ICARA proceeding and some courts have concluded it is categorically unavailable. Second, as a factual matter, Mother didn’t engage in wrongful conduct by withdrawing her support for Father’s visa application. Third, and most important, this argument overlooked that Father became aware by no later than July 2017 that he was in danger of losing his immigration status in Canada, yet he still agreed to enter into a divorce decree in October 2018 that awarded joint custody to Mother. Father was fully aware at the time he executed the divorce decree that he might have to leave Canada in the future. 

The fourth question to be addressed in an ICARA proceeding is “[w]as the petitioner exercising those rights [of custody] at the time of the removal or retention?” Mozes, 239 F.3d at 1070. Here, the answer was yes. See, e.g., Asvesta v. Petroutsas, 580 F.3d 1000, 1018 (9th Cir. 2009); Walker v. Walker, 701 F.3d 1110, 1121 (7th Cir. 2012).  Thus, petitioner established a prima facie case. 

The Court observed that the Ninth Circuit has emphasized that the grave-risk exception must be “drawn very narrowly” and “is not license for a court in the abducted-to country to speculate on where the child would be happiest.” Gaudin v. Remis, 415 F.3d 1028, 1035-36 (9th Cir. 2005) . “Rather, the question is whether the child would suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” Thus, “even a living situation capable of causing grave psychological harm over the full course of a child’s development is not necessarily likely to do so in the period necessary to obtain a custody determination.” 

During the evidentiary hearing, Father elicited testimony concerning an array of incidents that were apparently offered to show that returning the Children to the care of Mother and LaSalle in Canada would expose them to a “grave risk” of harm. (1) On one occasion in 2017, Mother went to the residence she had previously shared with Father to see the Children. Father was not present at the residence but his mother (the Children’s grandmother), Donna Adams, was there. When Mother arrived, the door was locked. Mother tried to force her way into the residence, became angry when she couldn’t enter, and eventually retrieved a baseball bat from her car and began banging on the door. The Children became anxious and frightened during this episode and Ms. Adams eventually called Mother’s mother, Laurel Berg, to come to the residence and help settle things down. (2) In or around July 2018, E.N.A. broke his arm while in Mother’s custody. The injury was accidental and likely occurred when E.N.A. slipped while getting off a bus. (3) At some point in 2017 or 2018, after Mother had separated from Father and started living with LaSalle, Father passed by LaSalle’s home. When LaSalle saw Father, LaSalle became angry and had to be held back by Mother. (4) Mother did not have consistent access to a car after separating from Father. As a result, she was sometimes required to transport the Children via public transportation— specifically, the bus. This sometimes caused the Children to have to wait, outside, at the bus stop during very cold Canadian winters. The Children were not always properly clothed to protect themselves from the cold.(5) Sometimes, after the Children were returned to Father’s care after spending time with Mother, they reported they were hungry.(6) Following the separation of Mother and Father, the Children were often sad about Mother’s absence and became more emotionally attached to Father.

The Court held that the Father had not come close to establishing the Children would be exposed to a grave risk of physical or psychological harm if returned to Canada. For example, although Mother’s new husband, LaSalle, experienced anger-management issues in the past, the evidence presented during the hearing demonstrates LaSalle had taken steps to address the problem. Moreover, there was no evidence that LaSalle had ever resorted to physical violence against Mother, X, or any other child. Finally, it was telling that LaSalle had custody of his child from a previous relationship—an arrangement CFSA officials would presumably not allow if LaSalle were a danger to children.

There was some suggestion by Father that the Children would be exposed to illicit drug use if returned to the care of Mother and LaSalle. But Mother testified without contradiction (and with some corroboration) that she had never used drugs and the only evidence concerning LaSalle related to historic marijuana use that was apparently legal under Canadian law. As for the incident in July 2018 in which E.N.A. broke his arm, this had zero evidentiary value. Young children often suffer accidental injuries. As for the incident in 2017 when Mother became angry and waved around a baseball bat, although this incident was not particularly flattering, it was understandable that a mother might become upset if she perceived that her mother-in-law was using a locked door to keep her from visiting her children. Additionally, there was no evidence that Mother hit anybody with the bat, let alone displayed a deep-seated propensity for violence that would somehow expose the Children to a grave risk of harm if returned to her care. As for the evidence that the Children sometimes had to wait in the cold for the bus and/or returned from visits with Mother with empty stomachs, this fell far short of the sort of “serious abuse” that must be present to satisfy the grave-risk exception.

Finally, as for the evidence suggesting that the Children became emotionally attached to Father following the divorce (and had grown further attached to him since the relocation to Arizona), this also failed to establish a grave risk of harm. See, e.g., Cuellar, 596 F.3d at 511; See generally Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996) (“[A] grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”).

Mother asked the Court to require Father “to pay [Mother’s] necessary expenses including courts costs, reasonable attorneys’ fees, care expenses, and any transportation costs incurred for the children’s return. The Court granted Mother’s request in part. Although Father did not, in his answer, articulate a compelling reason why a cost award would be “clearly inappropriate,” the evidence presented during the hearing showed that Father had little in the way of financial resources. Accordingly, the Court ordered Father to pay the transportation costs associated with returning the Children to Canada, as well as Mother’s airfare for traveling to and from the evidentiary hearing, but would not require him to pay any other costs. In re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Colo. 2014)