Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021)[Montenegro] [Federal & State Judicial Remedies] [Summary judgment] [Petition granted] [Stay denied]

 

In Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021) Respondent, Bahrija Elezovic, sought a stay pending appeal the  February 9, 2021 opinion and order requiring that she return her six-year-old daughter N.L. to Montenegro forthwith, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) Lukic v. Elezovic, No. 20-CV-3110 (ARR) (LB), 2021 WL 466029, at *10 (E.D.N.Y. Feb. 9, 2021).

 

Respondent had not complied with the order. After petitioner, N.L.’s father, filed a motion for contempt, respondent’s counsel informed petitioner’s counsel that respondent agreed to proceed with petitioner’s plan in which petitioner accompanied N.L. back to Montenegro. On March 1, 2021, the parties received a decision from the Montenegrin Family Court in their custody dispute over N.L.  Petitioner had moved to amend the 2015 custody judgment that afforded physical custody rights to respondent. The Montenegrin Family Court denied petitioner’s request and declined to disturb the 2015 custody judgment. Id. After reviewing this judgment, respondent’s counsel informed petitioner’s counsel that respondent believes this decision “entirely changes the situation.” Respondent then filed a notice of appeal and notified petitioner’s counsel that she intended to seek a stay, as well. Respondent filed a stay motion on March 2, 2021.

 

The Court pointed out that  Rule 62(c) of the Federal Rules of Civil Procedure permits a district court to stay enforcement of a judgment while an appeal is pending. A party seeking such a stay bears a “difficult burden.” United States v. Private Sanitation Indus. Ass’n, 44 F.3d 1082, 1084 (2d Cir. 1994). In evaluating whether to stay a “return order” under the Hague Convention, “[c]ourts should apply the four traditional stay factors ...: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Chafin v. Chafin, 568 U.S. 165, 179 (2013) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). “Staying the return of a child in an action under the [Hague] Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 n.1 (6th Cir. 1996). “The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court.” The district court concluded that (1) Respondent was unlikely to succeed on the merits of her Appeal. (2)  Respondent would not ne Irreparably injured absent a Stay, but a Stay Would Substantially Harm Petitioner and N.L. and (3)  The Public Interest Favors Denying a Stay.“ [T]he public interest, as relevant to a Hague Convention dispute, is primarily defined by the treaty itself, the express purpose of which is ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State.’ ” Hofmann, 2012 WL 8466673, at *1 (quoting Hague Convention art. 1); see also Vale, 2008 WL 2246929, at *3 (“[T]he public interest of this country and of other countries which are signator[ie]s to the Convention is met when the purpose of the Convention is met.”). “Protraction ... is hardly consonant with the Convention’s objectives.” Chafin, 568 U.S. at 185 (Ginsburg, J., concurring). Here, denying a stay pending appeal would better adhere to the Hague Convention’s purpose. N.L.’s wrongful retention has continued for more than a year, and further delay will cause significant harm to petitioner and N.L. Moreover, I have reviewed the 2021 custody judgment, respondent’s only new evidence, and determined that it does not alter my return analysis. See supra Section I. Thus, N.L.’s expeditious return to Montenegro furthers the objectives of the Hauge Convention and, in turn, the public interest .For the foregoing reasons, the court denied respondent’s motion to stay its February 9, 2021 opinion and order pending appeal under Federal Rule of Civil Procedure 62(c).

 

Lukic v Elezovic, 2021 WL 466029 (E.D. N.Y., 2021) [Montenegro] [Federal & State Judicial Remedies] [Summary judgment] [Petition granted]

 

 

In Lukic v Elezovic, 2021 WL 466029 (E.D. N.Y., 2021) the district court granted Petitioners motion for summary judgment for the return of his minor daughter, N.L., to Montenegro.

 

N.L. was the shared daughter of petitioner and respondent. She was born in Ulcinj, Montenegro in May 2014 and was six years old.  N.L. was a citizen of Montenegro. Petitioner and respondent also shared an older son, D.L., who was now nine years old. D.L. currently lived with petitioner, who has had official custody of him since 2018. When N.L. was approximately twenty days old, she and respondent ceased living with petitioner and moved to Podgorica, Montenegro. In April 17, 2015, the Primary Court in Podgorica issued an order governing N.L.’s custody.  The court awarded “care and upbringing” to respondent, “with whom the minor [N.L.] is to reside.” The court also ordered that petitioner had the right to have contact with N.L. every fifteen days until she reached two years old, after which he would have the right to take her with him every other week from Friday evening to Sunday evening. N.L. remained living with respondent in Podgorica and attended school in Montenegro until she entered the United States in July 2019. Respondent claims she “struggled to live” and “was forced to request help from the social services and Food Bank.” Petitioner denied that his “children went to bed hungry” and claims that respondent’s apartment in Podgorica “had everything.” Petitioner claimed that in accordance with the custody judgment he visited N.L. in Podgorica often before she turned two. After that, he claims he continued to visit her or bring her to Ulcinj on alternating weekends. Respondent denied these assertions. Petitioner failed to pay child support on three occasions, resulting in criminal judgments against him. But petitioner testified that he does not currently pay child support for N.L. because the child support respondent owes him for their son’s care is a nearly equal amount. And respondent admitted that petitioner paid “regularly every month after the last court order” up until June 2019.

 

On August 11, 2017, petitioner and respondent signed similar consent forms, one allowing D.L. to “cross the border in the company of” petitioner “to travel out of Montenegro (Serbia and abroad) in the period unlimited,” and one allowing N.L. to “cross the border accompanied by” respondent “for the purpose of traveling abroad (America) during the period from unlimited.” Petitioner testified that the form for N.L. gave respondent “the consent that she can go and travel as much as she wants so that I don’t have to go every time to Podgorica every time she wants to travel. Just as I have for the son, so that I don’t have to go every time to Podgorica, to United States, to ask for consent or to let the son go to excursion with school.”. Respondent testified that in presenting the form for D.L., petitioner “never acknowledged any intention to have our son relocated. He asked me for the permission for foreign travel at the same time when I asked him to sign off the permission that I can travel with our daughter. So, I signed also the permission for him that he can travel with our son. When asked if the form for N.L. “sa[id] anything about relocation,” respondent replied, “[N]o. It says here just for travel .... [T]his is the permission just to -- that you can freely get over the border to get out of the country, and nothing else.”. Respondent further testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Nevertheless, she asserted that “[t]here’s no time limit, how long I can stay with my child here in the United States.”

 

 

 

N.L. and respondent entered the United States in July 2019 on Montenegrin passports. To help N.L. obtain her passport, petitioner had signed a passport application for her shortly before she traveled to the United States. N.L. and respondent obtained nonimmigrant B-2 visitor visas to the United States. B-2 visas “are nonimmigrant visas for persons who want to enter the United States temporarily ... for tourism.” N.L.’s and respondent’s B-2 visas expired on January 1, 2020.  

 

N.L. has been in New York for more than eighteen months. She lives with respondent in an apartment with respondent’s sister, mother, and niece, and is enrolled in school, which takes place remotely due to the COVID-19 pandemic. N.L. “is in first grade and is learning how to write, draw, etc.” N.L. is attached to her mother, Elezovic, with whom she’s lived since birth.” Respondent is not currently employed, other than occasionally helping her sister with projects.

 

 

Articles 73 through 79 of Montenegrin Family Law regulate the relations between parents and children, as well as procedures related to the exercise of parental rights. Petitioner’s expert, Vladimir Radonjic, defines parental rights as “different duties and rights of parents to care about personality, rights and interests of their children.” Respondent’s expert, Vesna Raicevic, defines parental rights as “ha[ving] custody.” Article 78 provides that “[o]ne parent shall exercise parental right on the grounds of court decision when the parents do not live together, and have not concluded an agreement on exercise of parental right.” Both experts agree that Article 78 applies to N.L. Respondent asserts, based on Raicevic’s report, that the 2015 custody judgment appointed her “as the only parent who exclusively exercises parental rights” over N.L. Petitioner,  denied that only respondent has parental rights over N.L. Article 79 provides: The agreement on the independent exercise of parental rights includes the agreement of the parents on entrusting the joint child to one parent, the agreement on the amount of contribution for the maintenance of the child from the other parent and the agreement on maintaining the child’s personal relations with the other parent. The agreement on the independent exercise of parental rights transfers the exercise of parental rights to the parent to whom the child is entrusted. A parent who does not exercise parental rights has the right and duty to support the child, to maintain personal relations with the child and to decide on issues that significantly affect the child’s life jointly and in agreement with the parent exercising parental rights. Issues that significantly affect the child’s life, in terms of this law, are considered in particular: the child’s education, undertaking major medical procedures on the child, changing the child’s residence and disposing of the child’s property of great value. The rights granted under Article 79 of the Family Law of Montenegro can be altered only by a court order.

 

          Petitioner filed the action on July 13, 2020.  Petitioner argues that he is entitled to N.L.’s return to Montenegro because he had ne exeat rights protected by the Hague Convention and respondent breached those rights by keeping N.L. in the United States beyond the six months to which he consented. Respondent claims petitioner does not have any custody rights protected by the Hague Convention and even if he did, he waived them either by consenting to unlimited travel or failing to exercise those rights when N.L. was brought to the United States.

 

The district court found that the uncontested facts proves that six-year-old N.L. was habitually resident in Montenegro before coming to the United States. “[A] child’s habitual residence depends on the totality of the circumstances specific to the case,” taking into account “the family and social environment in which the child’s life has developed.” Monasky v. Taglieri, 140 S. Ct. 719, 723, 726 (2020) “Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.” Here, it was undisputed that N.L. resided in Montenegro her entire life, up to the point when respondent took her to the United States more than eighteen months ago.

 

The district court found that Respondent breached petitioner’s ne exeat rights over N.L. The Supreme Court has recognized that ne exeat rights—meaning joint rights to determine a child’s country of residence—constitute custody rights under the Hague Convention. See Abbott, 560 U.S. at 10–11. Here, it was undisputed that Article 79 of the Montenegrin Family Law grants “[t]he parent who does not exercise parental rights” the right “to decide on ... the child’s residence” and that this right can be derogated only through court order. The parties contested whether respondent exclusively holds “parental rights” over N.L. But this dispute was immaterial because Article 79 endows ne exeat rights even to “[t]he parent who does not exercise parental rights.” In fact, both experts appear to agree that Article 79 applies in this case. Thus, Article 79 established that petitioner has presumptive ne exeat rights over N.L.

 

Petitioner also had shown that respondent wrongfully retained N.L. in breach of his ne exeat rights. “ ‘[W]rongful retention’ occurs when one parent, having taken the child to a different Contracting State with permission of the other parent, fails to return the child to the first Contracting State when required.” Marks ex rel. SM v. Hochhauser, 876 F.3d 416, 421 (2d Cir. 2017). It was undisputed that petitioner consented to N.L. traveling to the United States with respondent and that N.L.’s and respondent’s B-2 tourist visas expired on January 1, 2020, which requires them to leave the country. Respondent contested, however, the scope of petitioner’s consent. She claims that the face of the consent form authorized N.L.’s remaining in the United States indefinitely because it allows N.L. to “cross the border” for the purpose of “traveling” abroad for an “unlimited” period of time. But in evaluating consent, courts look to “the petitioner’s subjective intent, including the nature and scope of the alleged consent.” In re Kim, 404 F. Supp. 2d 495, 516 (S.D.N.Y. 2005). To preclude the return remedy, a respondent must show the petitioner had the “‘subjective intent’ to permit Respondent to remove and retain the child for an indefinite or permanent time period.” While one could interpret the term “unlimited” to encompass one trip of infinite length on its face,¹⁰ petitioner presented uncontroverted evidence that he understood the consent form only to authorize an unrestricted number of temporary trips. Not only did petitioner testify to this understanding, but respondent also confirmed it. She testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Elezovic Dep. Tr. 61:10–14, 22–24. Thus, petitioner could not have formed the intent to authorize N.L.’s indefinite relocation to the United States beyond the bounds of a tourist visa. Moreover, respondent testified that she understood both the form petitioner signed for N.L. and the nearly identical form she signed for D.L. to grant “permission just to ... freely get over the border to get out of the country, and nothing else.” Based on this evidence, no reasonable jury could find that petitioner consented to N.L.’s indefinite retention in the United States and thus petitioner has established that N.L.’s retention was wrongful after the expiration of the parties’ B-2 visas on January 1, 2020.

 

[T]he standard for evaluating whether a petitioner is exercising custody at the time of removal is fairly lenient.” Valles Rubio v. Veintimilla Castro, No. 19-CV-2524 (KAM) (ST), 2019 WL 5189011, at *18 (E.D.N.Y. Oct. 15, 2019), aff’d, 813 F. App’x 619 (2d Cir. 2020). “A ‘person cannot fail to “exercise” [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.’” Souratgar v. Fair, No. 12-CV-7797 (PKC), 2012 WL 6700214, at *4 (S.D.N.Y. Dec. 26, 2012) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)), aff’d sub nom. Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013). “[A] ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country.” Abbott, 560 U.S. at 13. “If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been exercised but for the removal or retention.” Petitioner had shown that respondent sought his permission to travel to the United States with N.L. and that he consented to temporary visits. These facts alone show that petitioner was exercising his ne exeat rights at the time respondent wrongfully retained N.L. See Valles Rubio, 2019 WL 5189011, at *18 (finding petitioner exercised ne exeat right “by consenting to limited-duration travel”). Moreover, petitioner has shown that respondent retained N.L. in the United States past the boundaries of his consent, see supra Section I.B, and that he submitted a request for return under the Hague Convention on February 3, 2020, in addition to the instant lawsuit. See Haimdas, 720 F. Supp. 2d at 204 (finding the petitioner “would have exercised her ne exeat right but for the retention” because she declined to consent to her children “staying out of England for longer than one month” but “had no way to enforce that condition once they were physically present in the United States”).

 

Petitioner established a prima facie entitlement to the return remedy that respondent has failed to rebut. Respondent raised four affirmative defenses: (1) that petitioner consented to N.L.’s retention in the United States; (2) that petitioner was not exercising custody rights at the time of N.L.’s retention; (3) that judicial proceedings were not commenced within one year of N.L.’s retention and now she is well settled in New York; and (4) that there is a grave risk that N.L.’s return would expose her to harm. She failed to show either that she was entitled to summary judgment on any of these defenses or that genuine disputes of material facts existed regarding them.

 

 

Avendano v. Balza, 2021 WL 82378 (1st Cir.,2021)[Venezuela] [age and maturity defense -the mature child exception] [Petition denied]

 

In Avendano v. Balza, 2021 WL 82378 (1^st Cir.,2021) the mother, plaintiff-appellant Veronica Luz Malaver Avendano (Avendano), sought G*’s return to Venezuela, alleging that G*’s father, defendant-appellee Leonardo Alfonzo Blanco Balza (Balza), abducted G* in contravention of a Venezuelan child custody order and the Hague Convention. The district court determined that Balza admitted to unlawfully retaining G* in contravention of the Hague Convention and the implementing statute. However, after determining that Balza had established that G* was a mature child such that the court should consider G*’s stated desire to remain with his father in the United States, the district court denied Avendano’s petition for return of her son to Venezuela. Avendano appealed that decision. The First Circuit affirmed.

 

Prior to the events leading to this litigation, G* lived with his mother in Venezuela, the country where he was born and is a citizen. Balza, a joint citizen of the United States and Venezuela with residence in Massachusetts, had joint custody over G* pursuant to a custody order by a Venezuelan court. Balza visited G* in Venezuela often while he resided there and provided financial support to G*. However, as the relationship between Avendano and Balza deteriorated, the parties sought a custody arrangement through the Venezuelan courts. That order provided for G* to visit Balza in the United States every August and every other December. Because of the poor relationship between Avendano and Balza, the Venezuelan courts had to intervene to enforce the order so that G* could travel to the United States in both 2016 and 2018. While G* was visiting Balza in the United States for his second yearly visit that began in August 2018, Balza secured U.S. citizenship on behalf of G* that resulted in the forfeiture of G*’s green card. Subsequently, Avendano refused to grant the necessary permission for issuance of G*’s U.S. passport, and a Venezuelan court refused to extend the period of visitation. Therefore, Balza declined to return G* to Venezuela at the end of his court-mandated visit, claiming that he would not return G* to Venezuela without the proper documents through which he could return to the United States. G* thus continued to live with Balza and has begun attending school in Massachusetts. The district court noted that G* speaks with his mother weekly and stays in contact with his friends in Venezuela.

 

After Balza’s retention of G* in the United States beyond the date of the Venezuelan court order, Avendano sought G*’s return by filing suit in federal district court. The parties agreed that Avendano had lawful custody of G* pursuant to a valid Venezuelan court order, that G*’s country of habitual residence was Venezuela, and that Balza wrongfully retained G* in the United States. Having conceded that he wrongfully retained G*, Balza argued that G* should nevertheless remain in the United States because G* is a mature child who objects to being returned to Venezuela and because G* would face grave conditions if returned to Venezuela. The district court determined that G* was a child of sufficient age and maturity to have his wishes taken into consideration. While finding that “[t]here is no question in the mind of the [c]ourt that Avendano is a loving and committed parent,” the district court then determined that G* genuinely objected to being returned to Venezuela because of ongoing political and societal tumult. Finally, the district court found that G*’s desire to remain in the United States was reached independently, free of undue influence by Balza. The district court “exercise[d] its discretion granted by Article 13 of the [Hague] Convention and refuse[d] Avendano’s petition for return of the child to Venezuela.”

 

The First Circuit observed that questions of fact, such as whether a child is of sufficient age and maturity to have his views considered and whether the child is subject to undue influence, are reviewed for clear error. Mendez, 778 F.3d at 344; Díaz-Alarcón, 944 F.3d at 311. “Clear-error review is demanding: this standard will be satisfied only if, ‘upon whole-record-review, an inquiring court “form[s] a strong, unyielding belief that a mistake has been made.” ’ ” United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017)(quoting United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). “It is not enough that a finding strikes us as possibly or even probably wrong.” Díaz-Alarcón, 944 F.3d at 312. To the extent that the district court interpreted and applied the Hague Convention, the review is de novo.

 

Avendano claimed that the district court erred in determining that G* was of sufficient age and maturity for the court to consider his wishes regarding his return to Venezuela.  The First Circuit noted that the Hague Convention does not set an age at which a child is considered to be sufficiently mature; rather, the determination is to be made on a case by case basis. The district court examined “whether G*, who would be twelve years old in March 2020, was sufficiently mature to have his views taken into account and if so, whether his views should carry the day.” The district court heard testimony from experts and witnesses familiar with G* and both his current and former living conditions. Finally, the district court personally interviewed G* in the offices of G*’s Guardian Ad Litem. Upon examination of this evidence, the district court determined that Balza “established by a preponderance of the evidence that G* is a mature child, whose desire to stay with his father in the United States should at least be considered.” The district court further concluded that “G* not only prefers to live in the United States, but also objects to being returned to Venezuela.” The district court noted that, while G* had positive and negative things to say about living in Venezuela and now living in the United States, G*’s desire to remain was “very clear, consistent, and rational.” There was no support in the Hague Convention or caselaw to support Avendano’s claim that the district court should have considered G*’s age retrospectively to the time he was retained in the United States. The Hague Convention ceases to apply once the child reaches the age of sixteen regardless of whether the child was wrongfully removed or retained prior to that date. It concluded that the district court did not clearly err in declining to return G* to Venezuela. The district court thoughtfully considered the age and maturity of G* and concluded that G* was of the age and maturity to have his views regarding his return to Venezuela considered. It afforded deference to the district court’s decision, in part based on its personal interview with G*, that G* was of sufficient age and maturity to have his views considered. See Díaz-Alarcón, 944 F.3d at 315 (affirming lower court decision pursuant to the Hague Convention primarily on the basis of the deference to district court’s discretion and expertise as the finder of fact); see also United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997) (“Deference to the district court’s findings of fact reflects our awareness that the trial judge, who hears the testimony, observes the witnesses’ demeanor and evaluates the facts first hand, sits in the best position to determine what actually happened.”). Thus, based on the record it did not disturb the district court’s finding that G* was sufficiently mature.

 

Avendano also claimed that the district court erred in considering G*’s wishes prior to analyzing whether Balza exerted undue influence over G*. The Hague Convention is silent on undue influence and instead emphasizes the discretion of the deciding authority in applying the mature child exception. See Pérez–Vera Report at 433. The State Department’s analysis of the Hague Convention notes that the court’s discretion in applying the age and maturity exception is important in light of the “potential for brainwashing of the child by the alleged abductor.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986) (Legal Analysis). Specifically, “[a] child’s objection to being returned may be accorded little if any weight if the court believes that the child’s preference is the product of the abductor parent’s undue influence over the child.” Id. In short, the possibility of undue influence over the child is one consideration in the competent authority’s assessment of whether a child is of the age and maturity to have their views considered. The district court noted that it was undisputed that G* wanted to stay with Balza in the United States and that “he has seemingly not waivered [sic] in his decision.” The district court then concluded that “G*’s desire to stay in the United States does not appear to be the result of undue influence or coaching by Balza.” In so determining, it pointed to testimony from the Guardian Ad Litem, testimony from Balza, and the court’s own interview with G*. The district court rejected Avendano’s claims that Balza unduly influenced G* both by questioning the truth of Avendano’s testimony and by concluding that, even if Avendano’s allegations were true, they would not rise to the level of undue influence. In determining that there was no undue influence, the district court noted that “G* feels like he is free to choose for himself whether he wants to stay in the United States or return to Venezuela,” regardless of the truth of that belief in light of conditions in Venezuela and the strained relationship between Avendano and Balza. Finally, in concluding that G* wished to remain in the United States, the court noted “that current living conditions in Venezuela” were relevant to G*’s desire to remain in the United States even though the district court ultimately did not find it necessary to decide Balza’s claim that G* would face grave conditions if returned to Venezuela.

 

 The First Circuit found that the district court did not clearly err in determining that Balza did not unduly influence G*’s desire to remain in the United States and his objection to returning to Venezuela. The analysis provided by the district court shows that it considered all the relevant evidence. Thus, the court’s conclusion that G* met the mature child exception after the court met with G* and rejected Avendano’s allegations of Balza’s undue influence should be afforded deference. See Díaz-Alarcón, 944 F.3d at 315; Young, 105 F.3d at 5.

 

Furthermore, the district court did not rely solely upon G*’s expressed desire to remain in the United States and objection to being returned to Venezuela. The district court’s ruling was also supported by socio-political conditions in Venezuela and G*’s continued access to and communication with Avendano in deciding to retain G* in the United States. In sum, the district court’s age and maturity decision properly considered Balza’s influence over G* and, based on the totality of the circumstances, the court did not clearly err or abuse its discretion in declining to order G*’s return to Venezuela. Therefore, the district court’s decision was  affirmed.

Hague Convention District Court Cases decided during 2020 (List)

Adkins, v Adkins, 2020 WL 6508616 (U.S. Dist. Ct., N.D. California, 2020)Filed  11/05/2020
[Switzerland] [Necessary Costs and expenses] [Granted requested amount of fees for US attorneys and travel costs to Switzerland][Fees denied for Swiss attorneys]

Ajami v Solano, 2020 WL 996813 (U.S. Dist. Ct., M.D. Tennessee, Nashville Division, 2020) 02/28/20
[Venezuela] [Petition granted] [Grave risk of harm defense not established]

Avendano v  Blanco Balza, 2020 WL 897686 (U.S. Dist. Ct., D. Mass, 2020) Filed 02/25/2020
[Venezuela] [Petition denied] [Wishes of child defense]

Babcock, v Babcock, 2020 WL 7020293 (U.S. Dist. Ct., S.D. Iowa, Eastern Division, 2020). Filed 11/30/2020
[Canada] [Petition granted] [Telephonic hearing] [Habitual residence] Defenses not established]

Barron,  v Kendall, 2020 WL 2521915 (U.S. Dist. Ct., S.D. California, 2020).Filed 05/18/2020
[Mexico][Petition dismissed[ Younger Abstention] Colorado River]

Beard v  Beard,  2020 WL 4548253 (U.S. Dist. Ct., S.D. Iowa, Central Division, 2020). Filed 06/19/2020
[Canada] [Motion for attorneys fees of $14,617 and costs of $597.00 granted]

Bejarno v Jimenez,  2020 WL 4188212 (U.S. Dist. Ct., D. New Jersey, 2020) Filed 07/21/2020
[Honduras][Petition denied] [Now settled defense established]

Blancarte  v Santamaria,  2020 WL 38932 (U.S. Dist. Ct., E.D. Michigan, Southern Division, 2020). 01/03/2020
[Mexico] [Petition granted][Habitual residence] [Now settled not established][Grave risk of harm not established] [Undertakings ordered]

Dorian O. Chambers,  v Leopold S.P. Russell,  2020 WL 5044036 (U.S. Dist. Ct., M.D. North Carolina, 2020).Filed 08/26/2020
[Jamaica] [Petition granted][Habitual residence] [Now settled defense not established][Wishes of child defense not established] [Grave risk of harm defense not established]

Gil Colon, v Mejia Montufar,  2020 WL 3634021, (U.S. Dist. Ct., S.D. Florida, 2020). Signed 07/02/2020
[Guatemala] [Petition denied] [Grave risk of harm not established] [Wishes of the child defense established]

Cordoba, v Mullins,  2020 WL 3429771 (U.S. Dist. Ct., N.D. Illinois, Eastern Division, 2020). 06/23/2020
[Ecuador][Abstention] Motion for Stay granted under Colorado river]

Da Silva and Biagioli, v Vieira,  2020 WL 5652710 (U.S. Dist. Ct., M.D. Florida, 2020) 09/23/2020
[Brazil] [Petition granted] {Habitual residence] [Grave risk of harm not established] [Now settled not established]

Forcelli, v Smith,  2020 WL 5015838 (U.S. Dist. Ct., D. Minnesota, 2020) Filed 08/25/2020
[Germany] [Petition granted][Habitual residence][None of the 4 defenses were established]

Gallegos, v Soto, 2020 WL 2086554 (U.S. Dist. Ct., W.D. Texas, Austin Division, 2020) Filed 04/30/2020
[Mexico] [Petition granted] District Court stayed return due to Covid19] Grave risk of harm not established] [Violation of fundamental principles not established]

Garcia, v Reynosa,  2020 WL 777247 (U.S. Dist. Ct., W.D. Washington, 2020) 02/18/2020
[Guatemala] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Guerra, v Rodas,  2020 WL 2858534.(U.S. Dist. Ct., W.D. Oklahoma, 2020) Filed 06/02/2020

[Guatemala] [Petition granted] [Habitual Residence][ Grave risk of harm not established] [Consent not established]

Hulsh v  Hulsh,  2020 WL 6381362 (U.S. Dist. Ct., N.D. Illinois, Eastern Division, 2020) 10/30/2020
[Necessary expenses][Referred to Magistrate Judge

J.C.C. v L.C., 2020 WL 6375789 (U.S. Dist. Ct., D. New Jersey, 2020) Filed 10/30/2020
[El Salvador] [Petition granted][Habitual residence] {Grave risk of harm not established]

Joya v Gonzales, 2020 WL 1181846 (U.S. Dist. Ct., E.D. Louisiana, 2020). 03/12/2020
[Honduras] [Petition granted] [Grave risk of harm defense not established]

Leon, v Ruiz,  2020 WL 1227312 (U.S. Dist. Ct., W.D. Texas, Midland-Odessa Division, 2020). Filed 03/13/2020
[Mexico] [Petition granted] [Habitual residence]

Lopez v Bamaca,  2020 WL 1915260 (U.S. Dist. Ct., D. Delaware, 2020) Filed 04/20/2020
[Mexico][Petition granted] [Failure to exercise custodial rights not established]

Monroy, v De Mendoza,  2019 WL 7630631 (U.S. Dist. Ct., N.D. Texas, Dallas Division, 2020). Filed 09/20/2019
[El Salvador] [Report Recommended Petition be granted] [Habitual residence] [Grave risk of harm defense not established

Moreno, v Zank, 2020 WL 1950834 (U.S. Dist. Ct., W.D. Michigan, Southern Division, 2020). Filed 04/23/2020
[Ecuador] [On remand] [Now settled filing within 1 year not established]

Moreno, v Zank, 2020 WL 4583755 (U.S. Dist. Ct., W.D. Michigan, Southern Division, 2020). Filed 05/21/2020 
[Ecuador] [On remand] [ Motion for Summary Judgment denied]

Oraelosi, v Nwanji,  2008 WL 11516425 (U.S. Dist. Ct., N.D. Illinois, Eastern Division, 2020). Filed: 01/24/2008
[United Kingdom] [Summary judgment denied]

Pawananun, v  Pettit, 2020 WL 7585621( U.S. Dist. Ct., N.D. Ohio, Eastern Division, 2020).12/22/2020
[Thailand] {Petition granted][Habitual residence][Grave risk of harm not established]

Pawananun, v Pettit,  2020 WL 4462255 (U.S. Dist. Ct., N.D. Ohio, Eastern Division, 2020). 08/04/2020
[Thailand] [Comity] [Motion to strike defense denied]

Radu v  Shon,  2020 WL 5576742 ( U.S. Dist. Ct., D. Arizona, 2020). 09/17/2020
[Germany][Petition granted] [Habitual residence] [Grave risk of harm not established

Radu v  Shon,  2020 WL 6741538 (U.S. Dist. Ct., D. Arizona, 2020) .11/17/2020
[Germany] [Petition granted] [Motion to stay return order pending appeal granted]

Rodriguez v  Fernandez,  2020 WL 6566036, (U.S. Dist. Ct., M.D. Tennessee, Nashville Division, 2020).11/09/2020
[Mexico] [Petition denied] [Habitual residence][Plaintiff failed to meet burden of proof]

Sacchi v Dervishi,  2020 WL 3618957 (U.S. Dist. Ct., N.D. California, 2020). 07/02/2020
[Italy] [Petition granted]{Habitual residence] [Exercise of rights of custody] [ Consent or Acquiescence not established]

Schurmann, v  Carr, Tedrick, and  Anqui-Tedrick, 2020 WL 1236916, Filed 02/24/2020
[Spain][Report & Recommendation] [ Motion to dismiss granted] 

Schwartz, v  Hinnendael,  2020 WL 6111634 (U.S. Dist. Ct., E.D. Wisconsin, 2020). Filed 10/16/2020
[Mexico] [Petition denied] [Failure to prove habitual residence in Mexico] [Grave risk of harm exception also applied]

Stone, v   Stone,  2020 WL 491194 (U.S. Dist. Ct., D. New Jersey, 2020) . Filed 01/30/2020
[Israel] [Petition denied] [Necessary Costs and expenses] [Respondents motion for attorneys fees denied as not authorized by ICARA]

Wan v Debolt, 2020 WL 6274992, (U.S. Dist. Ct., C.D. Illinois, Eastern Division, 2020)10/26/20
[Hong Kong] [Motion to dismiss denied] [Hong Kong not removed from Hague convention]

Zaoral v Meza, 2020 WL 5036521 (U.S. Dist. Ct., S.D. Texas, Houston Division, 2020) Filed 08/26/2020
[Venezuela][Petition granted][ Habitual residence] [Defenses not established]

Grano v Martin, 821 Fed.Appx. 26 (2d Cir.,2020) [Spain] [Habitual Residence] [Grave Risk of Harm] [Undertakings]

  In Grano v Martin, 821 Fed.Appx. 26 (2d Cir.,2020) (summary order)( not selected for publication) Respondent-appellant Katherine Patricia Martin appealed from a judgment of the district court, granting the petition filed by petitioner-appellee Sergi Hernandez Grano for the return of their son to Spain. Martin, the Child’s mother and an American citizen, had taken the Child from Spain to the United States without the consent of Grano, the Child’s father and a Spanish citizen. 

  On appeal, Martin argued principally that the district court erred in: (1) finding that the Child’s habitual residence was Spain, (2) concluding that the “grave risk” of harm exception did not apply; and (3) failing to require “undertakings” as a condition of the Child’s return to Spain. 

  The Second Circuit observed that under the Convention, “a child wrongfully removed from [his] country of ‘habitual residence’ ordinarily must be returned to that country,” as the interests of the child are usually best served when custody decisions are made in the courts of the home country. Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (2020). A parent can invoke the protection of the Convention only if the child is a “habitual resident” of a State signatory to the Convention and has been removed to or retained in a different State that is also a signatory of the Convention. See Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005). The burden of proof is on the petitioner to show by a preponderance of the evidence that the child was the habitual resident of a State and has been wrongfully removed to or retained in a different State. Id. at 131; see also 22 U.S.C. § 9003(e)(1)(A). Under Monasky, “a child’s habitual residence depends on the totality of the circumstances specific to the case.” 140 S. Ct. at 723. “An actual agreement between the parents is not necessary to establish a [child’s] habitual residence.”  Some factors for courts to consider in determining “habitual residence” include where a child has lived, the length of time there, acclimatization, and the “purposes and intentions of the parents.” Physical presence in a country is not a dispositive indicator of an infant’s habitual residence. 

  The Court pointed out that it reviews a “first-instance habitual-residence determination ... for clear error.” While a child’s habitual residence presents a mixed question of law and fact, “[t]he habitual-residence determination ... presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court.” Here, after carefully considering the evidence and weighing the credibility of the witnesses, the district court found that the Child’s habitual residence was Spain. There was ample support in the record for this conclusion. For example, when Martin and the Child flew to Spain on October 3, 2017, they did so on a one-way ticket, and Martin did not retain any bank accounts in the United States. Martin and Grano engaged in activities in Spain consistent with being a couple intending to raise their child in that country, including finding a school for the Child, buying a house together, and making decisions about the design and furnishing of the house. In April 2018, while Martin was on a visit to New York with the Child, she registered him with the Spanish Consulate as a Spanish citizen. Later that month, Martin returned to Spain with the Child, and in May she registered him as a resident of their town in Spain. In July 2018, Martin and Grano signed the deed to a house in Spain, and they began to live there as a family. On these and other facts in the record, and applying the deferential standard of review mandated by Monasky, it concluded that the district court did not clearly err in finding that the totality of the circumstances showed that the Child’s habitual residence was in Spain.

 

The Court further observed even if the removal of a child is wrongful, under the Convention the  relevant exception in this case is the “grave risk” exception: return will not be required if it “would place [the child] at a ‘grave risk’ of harm or otherwise in ‘an intolerable situation.’” Monasky, 140 S. Ct. at 723; see also Convention, art. 13(b) (one exception is if “there is a grave risk that [the child’s return] would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”). The grave risk exception is an affirmative defense, and the burden is on the respondent to prove the defense by clear and convincing evidence, though the underlying facts must only be proven by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(2)(A). A grave risk of harm occurs where the “petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.” Ermini, 758 F.3d at 164 (quoting Souratgar v. Lee, 720 F.3d 96, 105 (2d Cir. 2013)). Spousal violence can also create a grave risk of harm to the child, particularly if the violence occurs in front of the child. Id. This Court has held, however, that spousal abuse is “only relevant under Article 13(b) if it seriously endangers the child.” Souratgar, 720 F.3d at 103-104. In considering the parties’ arguments with respect to the grave risk exception, it reviews the district court’s factual findings for clear error, and its application of the Convention to those findings de novo. Ermini, 758 F.3d at 160. There was support in the record for the factual findings, and it was not persuaded that the district court erred in declining to invoke the grave risk exception.

 

The Court noted that where a court orders the return of a child under the Convention to his country of habitual residence, it may impose an “undertaking” to ensure that the child is not harmed upon his return. The parties disputed whether a district court has jurisdiction to order undertakings when it declines to invoke the grave risk exception. The Court held that it need not resolve the issue, for even assuming the district court had jurisdiction to order undertakings, it did not abuse its discretion in declining to do so, where, as here, there was no grave risk of harm to the Child upon his return to Spain. 

Rubio v Castro, --- Fed.Appx. ----, 2020 WL 2311897 (2d Cir.,2020)[Ecuador] [grave risk of harm][ ameliorative measures insufficient] [Petition denied]

 

In Rubio v Castro, --- Fed.Appx. ----, 2020 WL 2311897 (2d Cir.,2020) (Not selected for publication)  Respondent-Appellant Olga Katerine Veintimilla Castro (“Castro”) appealed from the memorandum decision and order of the District Court granting the petition of Petitioner-Appellee Segundo Melchor Valles Rubio (“Valles”) for the repatriation of his and Castro’s son, B.V., to Ecuador. 

The Second Circuit reviewed the district court’s interpretation of the Convention de novo and its factual determinations for clear error.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013). “

The Court observed that as is relevant here, a respondent can contest repatriation by establishing by clear and convincing evidence, 22 U.S.C. § 9003(e)(2)(A), that “there is a grave risk” that repatriation of the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” Hague Convention, art. 13(b). Even if the repatriation poses a grave risk of harm, however, “the district court is not necessarily bound to allow the child to remain with the abducting parent.” Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999). Rather, a “federal district court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.” It has  explained that “[i]n cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin v. Dubois, 238 F.3d 153, 163 n.11 (2d Cir. 2001); see also Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019) (explaining that the district court must “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” 

 

The district court concluded that, though evidence of Valles’s physical and psychological abuse of B.V. established that B.V. faced a grave risk of harm if returned to Valles’s custody, ameliorative measures such as litigation in Ecuadorian courts were sufficient to protect B.V., and it therefore granted Valles’s petition for B.V.’s return. The Court rejected Valles argument that Castro failed to meet her burden to show a grave risk of harm to B.V.. The district court found clear and convincing evidence of physical and emotional abuse, including, inter alia, four beatings with a belt, one beating with a stick, frequent verbal abuse, using B.V. as cover to transport firearms in Valles’s car, and handing B.V. a loaded firearm while making threatening comments. Nevertheless, in light of the protective measures set out in the JSU and the record of Castro’s successful litigation in Ecuadorian courts, it could not conclude that the district court abused its discretion in ordering B.V.’s repatriation. The JSU provides for weekly visits between B.V. and Castro’s family, daily conversations by video or telephone between Castro and B.V., and restrictions on B.V.’s access to firearms, including prohibitions on the presence of any firearms where B.V. resides. Castro failed to establish on appeal that these measures were  inadequate to protect B.V., nor had she shown why she could not avail herself of the Ecuadorian courts or the equitable power of the district court to enforce ameliorative measures for the protection of B.V.

  The Second Circuit agreed with Castro, however, that the district court too quickly discounted her argument that she would not return to Ecuador with B.V., and that the efficacy of any protective measures would need to be assessed in light of her absence. This Court has instructed that “[i]n cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b) [of the Hague Convention], it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin, 238 F.3d at 163 n.11. Where repatriation would return a child to the sole physical custody of their abuser, a district court does not properly weigh the safety of the child if it fails to examine the full range of ameliorative measures, including those that are enforceable when the respondent parent has chosen not to return. Here, however, the district court did not simply order repatriation without any ameliorative measures. Rather, the district court ordered the parties to negotiate the terms of the repatriation, and report back to the court on the terms on which they had agreed. In response to that order, the parties filed the JSU, providing ameliorative measures for B.V.’s repatriation to Valles’s custody in Ecuador. Castro  failed to show that these measures or the protection of the Ecuadorian courts were inadequate, even if she remained in the United States; nor did she petition the district court to amend the terms of the JSU. Accordingly, even if the district court failed to specifically examine the enforceability of ameliorative measures in light of Castro’s decision not to return to Ecuador, it could not conclude that the ameliorative measures currently in place were insufficient to mitigate the risk of harm to B.V., such that B.V.’s repatriation was an abuse of discretion.

 

Saada v Golan, 2020 WL 6303397 (2d Cir, 2020) [Italy][Grave risk of harm][ ameliorative measures] [Petition granted]

In Saada v Golan, 2020 WL 6303397 (2d Cir, 2020) ( not selected for publication) Respondent-Appellant Narkis Aliza Golan appealed the district court’s order granting the petition of Isacco Jacky Saada for the return of their son, B.A.S., to Italy. The district court granted Saada’s petition after determining that there were adequate ameliorative measures that remedied any grave risk of harm to B.A.S. upon his return to Italy. In Golan’s earlier appeal, the court  ruled that the district court’s initial order failed to adequately remedy the grave risk of harm to B.A.S. that the court found would result from B.A.S.’s return to Italy. Saada v. Golan, 930 F.3d 533, 540 (2d Cir. 2019) (Saada II). It remanded the case to allow the district court to determine if other ameliorative measures were available to remedy that risk of harm and could be “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” On remand, the district court sought out such measures, found the measures to be satisfactory, and granted Saada’s petition. Finding no clear error in the district court’s factual determinations, and concluding that those facts support its judgment, the Second Circuit affirmed.

 

Isacco Saada and Narkis Golan wed in Milan in August 2015. They had a son, B.A.S., the next June and lived in Milan for the first two years of his life. In July 2018, Golan traveled with B.A.S. to the United States for a wedding, and they have remained in the United States since that time. The district court determined that Italy was B.A.S.’s country of habitual residence for the purposes of the Hague Convention. It affirmed in the initial appeal. Saada’s relationship with Golan was abusive almost from its inception. The district court found that Saada would yell, slap, hit, and push Golan. He would call her names and pull her hair. He once threw a glass bottle at her and also threatened to kill her. This abuse often occurred in B.A.S.’s presence. The district found, based on expert testimony, that Saada’s abuse of Golan had and could continue to have severe effects on B.A.S.’s psychological health. The district court noted that Saada, at that point, had not demonstrated an ability to change his behavior or to control his anger. . As a result, the district court concluded that returning B.A.S. to Italy would subject him to a grave risk of psychological harm, and therefore the Hague Convention did not require that the district court order B.A.S.’s return. That conclusion, however, did not end the analysis. Circuit precedent required the district court to determine if there were any ameliorative measures, or “undertakings,” it could impose on Saada that would eliminate the grave risk of harm to B.A.S. and allow the court to return B.A.S. back to Italy. (citing Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999) (Blondin I)). The court decided that it could mitigate the grave risk by ordering Saada, inter alia, to pay Golan $30,000, to stay away from her in Italy, and to visit B.A.S. only with Golan’s consent. These measures were vacated on appeal as inadequate. Saada II, 930 F.3d at 540. The Court  ruled that to eliminate a grave risk of harm, the ameliorative measures must be either enforceable by the district court or supported by other sufficient guarantees of performance. Because the district court could not enforce its instructions regarding Saada’s distance from Golan and visits with B.A.S. once the parties were in Italy—and there were no other guarantees of performance—the district court’s order did not adequately ameliorate the grave risk of harm to B.A.S. It  remanded the case for the district court to determine if any other enforceable or sufficiently guaranteed ameliorative measures were available. It invited the district court to consider whether Italian courts could issue orders that prohibited Saada from approaching Golan or visiting B.A.S. without her consent. On remand, the district court communicated with Italian authorities to determine whether they could issue a protective order requiring Saada to stay away from Golan and to attend therapy. The district court then instructed the parties to petition the Italian courts for such an order. The parties complied. An Italian court entered an order requiring, inter alia, that (1) Saada not approach Golan, her place of work or residence, or B.A.S.’s school; (2) B.A.S. be entrusted to Italian social services and placed with Golan for residence; (3) Saada visit B.A.S. only in a neutral space under observation by Italian social services; and (4) Italian social services evaluate Saada and initiate psychological counseling for him.  This protective order will run for one year from when Golan and B.A.S. arrive in Italy and is renewable. In light of these developments, the district court granted Saada’s petition to return B.A.S. to Italy. Saada v. Golan, No. 118-CV-5292, 2020 WL 2128867, at *6 (E.D.N.Y. May 5, 2020) (Saada III). The district court noted that Saada had complied with previous social service investigations in Italy and that he had he abided by all conditions of his supervised visits with B.A.S. in the United States. Combined with the consequences Saada would face for violating the Italian protective order, the district court concluded that these findings provided it with sufficient confidence that Saada would comply with that order. Additionally, the district court indicated that the psychological counseling mandated by the Italian court could reduce Saada’s abusive tendencies. The district court also ordered Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their return to Italy. Taken together, the district court concluded, these measures ameliorated the “grave risk of harm to B.A.S.” that could result from “exposure to violence between” Saada and Golan. In making its decision, the court also noted the absence of “evidence in the record that [Saada] was abusive to B.A.S. or that B.A.S. would be unsafe with [Saada].” 

 

The Second Circuit employed a clear error standard to assess the district court’s findings that Saada would comply with the Italian court order and that the $150,000 payment to Golan would meet her and B.A.S.’s needs until a custody arrangement was concluded. It then determined de novo if, given those conclusions, the protective measures adequately ameliorate the “grave risk of harm” to B.A.S..

 

The Court observed that a district court that finds a grave risk of harm “must examine the full range of options that might make possible the safe return of a child” before denying repatriation. Blondin II, 238 F.3d at 163 n.11. This rule “honor[s] the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child’s home country.” However, a district court may rely only on “ameliorative measures that are either enforceable by [it] or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. In this case, the district court found that “exposure to violence” perpetuated by Saada against Golan posed a “grave risk of harm to B.A.S.” Saada III, 2020 WL 2128867, at *2.1 After taking steps to ensure that a protective order from the Italian courts would be in place upon the return of B.A.S. to Italy, however, the district court subsequently found that this Italian protective order coupled with a $150,000 payment from Saada to Golan ameliorated that risk. Id. at *2-6. These measures, if effective, will ensure that Saada and Golan are not in the same place.2 This separation, in turn, protects B.A.S. from any trauma that would result from abuse that Saada might perpetrate against Golan if they were together, and therefore ameliorates the grave risk of harm to B.A.S. *4 These measures are “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. The district court can enforce its order that Saada must make the $150,000 payment before B.A.S. is repatriated. And the existing Italian protective order and ongoing involvement of the Italian courts with this case provides sufficient assurance that Saada will not approach Golan in Italy. See id. at 541 n.33 (“In most cases, the international comity norms underlying the Hague Convention require courts in the United States to assume that an order by a foreign court imposing protective measures will guarantee performance of those measures.”).

 

Golan argued that this case presents a circumstance in which “even a foreign court order might not suffice,” because Saada will not comply with the Italian protective order. Given the record it did not have a “definite and firm conviction that a mistake has been committed” by the district court. Souratgar, 720 F.3d at 103. Saada has shown an ability to follow rules in related contexts and knows the Italian court will police his activities and punish him for violations. The district court, therefore, did not clearly err in determining that Saada will likely comply with the Italian protective order. In light of this finding, the district court correctly concluded that there existed sufficiently guaranteed ameliorative measures that would remedy the grave risk of harm to B.A.S. upon his return to Italy. It therefore properly granted Saada’s petition.

In a footnote the Court pointed out that  ‘[d]enying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases.’ ” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1).