Dawson v Dylla, 2021 WL 1534608 (D. Colorado, 2021)
[United Kingdom] [Federal & State Judicial Remedies] [Court lacks jurisdiction to adjudicate merits of the underlying custody dispute][ Petition to enforce a foreign parenting order denied.]
Wednesday, April 21, 2021
Sunday, April 4, 2021
Recent Hague Convention District Court Cases (List)
Luis Alfonso VH v Banessa Cristina AZ, 2021 WL 76971 (W.D. Virginia, 2021).
[Honduras] [Well-settled] [Petition denied]
Alverez Romero v Gajardo Bahamonde, 2020 WL 8459278 (M.D. Georgia, 2021)
[Chile] [Well-Settled] [Wishes of the child [Petition denied]
Dubikovskyy v. Goun, 2021 WL 456634 (W.D. Missouri, 2021)
[Switzerland] [Wishes of the Child] [Petition denied]
Forcelli, v. Smith,.2021 WL 638040 (D. Minnesota, 2021)
[Germany] Necessary Expenses] [not clearly inappropriate] [Reasonable attorneys fees and transportation costs awarded]
Sanchez Mena v Gomez Paz, 2021 WL 633586 (D. Utah, 2021.)
[Peru] [Federal & State Judicial Remedies] [Respondent’s motion for enlargement of time to file motion to dismiss moot. Respondent’s motion for consolidation of defenses denied. Respondent’s motion to amend the scheduling order is granted in part and denied in part.]
Colchester v Lazaro, 2021 WL 764136, (W.D. Washington, 2021)
[Spain] [Habitual Residence] [Petition granted] [Necessary expenses against Ms. Lazaro is not “clearly inappropriate]
Jose De Jesus Joya Rubio v Yelaine Memendez Alvarez, 2021 WL 956197 (S.D. Florida, 2021)
[Mexico] [Well-Settled] [Wishes of the child] [Petition denied]
Radu v Shon, 2021 WL 1056393 (D. Arizona, 2021).
[Germany] [Necessary Expenses] [Clearly inappropriate] [Motion denied]
Sanchez v Sanchez, 2021 WL 1227133 (M.D. North Carolina, 2021)
[Honduras] [Grave risk of harm] [Petition denied].
Friday, April 2, 2021
Saada v Golan, 2021 WL 1176372 (E.D. N. Y.) [Italy] [Federal & State Judicial Remedies] [Stay pending application for certiorari]
In Saada v Golan, 2021 WL 1176372 (E.D. N. Y.) the district court denied the respondent’s motion to set aside the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or in the alternative, to stay the action pending her petition for writ of certiorari to the United States Supreme Court.
The petitioner, an Italian citizen, alleged that in August of 2018, the respondent, an American citizen, wrongfully kept their minor son, B.A.S., in the United States. After a bench trial, in a March 22, 2019 decision, the district court found that B.A.S. was a habitual resident of Italy, and that while he would be subject to grave risk of harm upon repatriation, there were sufficient measures available in Italy that would ameliorate the risk to B.A.S. upon his return.
The Second Circuit affirmed the decision in part and vacated it in part. Saada v. Golan, 930 F.3d 533, 537 (2d Cir. 2009) (Saada I). The Court agreed that Italy was B.A.S.’s “habitual residence” under the Hague Convention, but determined that certain ameliorative measures could not be enforced before B.A.S. was repatriated to Italy. The Second Circuit remanded the case with instructions to ensure that the measures necessary for B.A.S.’s safe repatriation could be “enforce[d] by the District Court or supported by other sufficient guarantees of performance.” On May 5, 2020, after additional briefing and an extensive examination of the ameliorative measures available in Italy, the district court found that “the Italian courts are willing and able to resolve the parties’ multiple disputes, address the family’s history and ensure B.A.S.’s safety and well-being.” In December of 2019, the Italian court issued an order to help facilitate B.A.S.’s repatriation that included a protective order against the petitioner and an order requiring Italian social services to oversee his parenting classes and behavioral and psychoeducational therapy. Moreover, the petitioner agreed to give the respondent a sum of money to allow her to live independently of the petitioner and his family upon her return. The district court granted the petition and ordered that B.A.S. be returned to Italy. On January 21, 2021, the Court of Appeals affirmed that decision in its entirety. Saada v. Golan, 833 F. App’x 829, 831 (2d Cir. 2020) (Saada II).
On January 25, 2021, shortly after the Court of Appeals issued its mandate in Saada II, the respondent filed the motion seeking to vacate the May 5, 2020 order pursuant to Rule 60(b)(2), based on “newly discovered evidence.” Describing the Courts remarks at an October 16, 2018 proceeding as a “court order,” the respondent stated that the petitioner “hired an investigator who surveilled B.A.S. and the respondent and took pictures of them in their apartment,” in “blatant violation” of an October 16, 2018 court order directing the petitioner not to try to locate the respondent during the 2018 trial. According to the respondent, the surveillance showed that the petitioner will not comply with its orders, which in turn demonstrated that he would not follow the Italian court’s protective orders. In short, the respondent argued that this “new” evidence established that B.A.S. will face a “grave risk of harm” that cannot be ameliorated, and therefore, the petition should be denied. To support her allegation of secret surveillance, the respondent submitted the transcript of a November 2020 conversation between the petitioner, his father, and a rabbi who was working with the respondent to help her secure a get. Unbeknownst to the petitioner, the respondent was listening in, and the call was being secretly recorded.
The Court observed that Rule 60(b) outlines the grounds for relief from a final judgment, order or proceeding, including “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P. 60(b)(2). A Rule 60(b)(2) motion must be made “no more than a year after the entry of the judgment or order or the date of the proceeding,” Fed. R. Civ. P. 60(c)(1), and may not be used “simply to relitigate matters settled by the original judgment.” The decision to grant a motion for relief under Rule 60(b) is left to the discretion of the court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). The district court found there was no evidence that the petitioner or his attorneys tried to find out where the respondent lived, certainly not during the trial or anytime thereafter. Knowledge of the limited investigation that did take place would not have changed the outcome of my May 5, 2020 order, because it did not establish that the petitioner violated an order of the Court or that the protections put in place in Italy would be insufficient to protect B.A.S. from a grave risk of harm. The evidence was not sufficient grounds to reverse the judgment; therefore, the respondent’s motion to set aside the judgment was denied.
The Court pointed out that in deciding whether to stay a return order in a Hague Convention case, courts must balance the “importance of the prompt return of children wrongfully removed or retained” with the concern that “shuttling children back and forth between parents and across international borders may be detrimental to those children.” Chafin v. Chafin, 568 U.S. 165, 178 (2013). “Staying the return of a child in an action under the Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996). Courts considering whether to stay a return order must 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, 568 U.S. at 179 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). A decision to stay the return should include an “appropriate consideration of the child’s best interests.”
The district court found that given the small percentage of cases that the Supreme Court accepts each term, it was not likely that the respondent’s petition for certiorari would be successful. This case did present an interesting legal question, which appeared to be a matter of first impression before the Court. Overall, this factor did not weigh strongly for or against a stay. The court was not persuaded that the respondent would be irreparably injured absent a stay. The Italian court has put many protections in place to ensure the respondent’s safety in Italy, and she will have money to provide for herself and B.A.S. when they return. B.A.S.’s return would not moot the respondent’s claims or prevent her from continuing to litigate this action. See Chafin, 568 U.S. at 180. If the return order is reversed, there were currently no substantial barriers that would prevent the respondent’s return to the United States with B.A.S. The respondent was a United States citizen and would retain sole custody of B.A.S. in Italy, at least until the custody dispute was resolved in the Italian courts; she should be able to return to the United States if the Court ultimately decided in her favor. The prejudice to the Petitioner weighed against a stay. The Court ordered B.A.S.’s return to Italy almost two years ago, but he still resided in New York. 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. Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Friedrich, 78 F.3d at 1063). Public interest cautioned against further delay of the return order. Weighing all the factors the court declined to stay the case pending the outcome of the respondent’s petition to the Supreme Court.
Sunday, March 7, 2021
Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021)[Honduras][Now-settled] [petition denied]
The Court reviewed
the factual findings for clear error and any conclusions of law de novo.
See Yang v. Tsui, 499 F.3d 259, 270
(3d Cir. 2007). It found that in a careful and thorough analysis of
the ten factors specified in Monzon, the District Court determined
that only two weighed against L.S. being well-settled in his New Jersey home
and community: “the stability of [Appellee’s] employment or other means of
support” and “the immigration status of the child and parent.” These factors
are: “(1) the age of the child; (2) the stability of the child’s new residence;
(3) whether the child attends school ... consistently; (4) whether the child
attends church regularly [or participates in other extracurricular and
community activities]; (5) the stability of the parent’s employment or other
means of support; (6) whether the child has friends and relatives in the area;
(7) to what extent the child has maintained ties to [Honduras]; (8) the level of
parental involvement in the child’s life; (9) active measures to conceal the
child’s whereabouts ... ; and, (10) the immigration status of the child and
parent.” A16 & n.14; see Monzon, 910 F.3d at 105,
106 n.88. As to those
factors, the District Court reasoned that L.S. and Appellee were not citizens,
so “their immigration status remains uncertain,” while their asylum application is pending, and
that without a work permit, Appellee haf only “worked sporadically in a
restaurant,” Nonetheless, it concluded that these considerations were greatly
outweighed by the remaining considerations, including L.S.’s “stable” family
life with his stepfather and half-brother, with whom he has “grown very close,”;
his involvement in school, extracurricular activities, and community activities;
and his memories of and ties to America, formed from ages four to six.
The Court rejected Appellants
argument the District Court erred in declining to hear additional testimony
concerning L.S.’s and Appellee’s immigration status and in refusing to treat
this factor as dispositive of whether L.S. was well-settled. Appellee’s
immigration status would not change the outcome of the ten-factor analysis nor
would it be independently dispositive. Immigration status “is neither
dispositive nor subject to categorical rules, but instead is one relevant
factor in a multifactor test.” Hernandez v. Garcia
Pena, 820 F.3d 782, 788 (5th Cir. 2016). The Court held that the District
Court’s ultimate evaluation of the totality of the circumstances was consistent
with Article 12 of the Hague Convention and the implementing statute, the
Courts precedent, and the case law of other circuits that immigration status “cannot
undermine all of the other considerations which uniformly support a finding
that [the child] is ‘settled’ in the United States.” In re B. del C.S.B., 559 F.3d 999,
1010 (9th Cir. 2009); see Lozano v. Alvarez, 697 F.3d 41, 57
(2d Cir. 2012) (noting that “no court has held [immigration status]
to be singularly dispositive”), aff’d sub nom. Lozano v. Montoya
Alvarez, 572 U.S. 1 (2014); Alcala v. Hernandez, 826 F.3d 161, 174
(4th Cir. 2016) (same). It agreed with
the District Court’s conclusion that Appellant met her burden of showing L.S. was
well-settled in the United States.
Thursday, March 4, 2021
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 (1st 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; DÃaz-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.” DÃaz-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 DÃaz-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 DÃaz-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.
Sunday, January 10, 2021
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]
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