Velozny v Velozny, 2021 WL 3115870 (S.D. New York, 2021) [Israel] [Consent] [Grave Risk of Harm] [Mature Child Defense][Petition granted]

 

In Velozny v Velozny, 2021 WL 3115870 (S.D. New York, 2021) Petitioner Nir Velozny, an Israeli citizen, petitioned the United States District Court for the return of his children, R.V., N.V., and E.V., ages 15, 12, and 4, respectively, to Israel. Petitioner moved for summary judgment, arguing that the children were wrongfully removed and were being wrongfully retained in the United States by their mother, Respondent Tal Velozny, who currently resided in New York. Hon. George B. Daniels granted Petitioner’s motion for summary judgment and his petition for the repatriation of the children to Israel.

 

     Petitioner, Nir Velozny, was an Israeli citizen who currently resided in Israel. Respondent, Tal Velozny, a U.S. citizen, was Petitioner’s wife and currently lived in New York. The couple first met in 2001, were married in 2002 (in both the United States and Israel), and moved to Israel in 2005. The couple has three minor children: R.V., N.V., and E.V, all of whom were born in Israel. Petitioner and Respondent shared a home in Tel Aviv with their children until approximately July 2019.  Around that time, Petitioner moved out of the family home and informed Respondent that he wanted a divorce. In August 2019, Petitioner filed a petition with the State of Israel Rabbinical Courts to initiate a divorce proceeding. An initial divorce proceeding before Israel’s Rabbinical Court was scheduled for October 2, 2019. The parties, through counsel, began negotiating a divorce and custody agreement and counsel held two meetings in August. After one meeting, Petitioner’s Israeli counsel instructed Respondent’s Israeli counsel that the children were not to leave Israel without Petitioner’s consent. The parties never executed the divorce and custody agreement. On September 28, 2019, just days before they were to appear before the Rabbinical Court, Respondent booked a round-trip ticket for her and the children from Tel Aviv to the United States. Respondent left in secret, never informing Petitioner that she was moving the children to New York. Nor did she tell the children that they were going to stay in the United States. Petitioner discovered that Respondent and the children had left Israel when he went to the family home on September 28^th to check in with the children before the start of Rosh Hashana and found it dark. Petitioner went to Respondent’s parent’s home where he was told by the doorman that Petitioner had left for the airport. Petitioner next went to the police station, where the police confirmed that Respondent and the children had left Israel. Respondent and the children have remained in New York (and not returned to Israel) since September 2019.

 

The district court pointed out that neither the Hague Convention nor ICARA requires an evidentiary hearing or a full trial on the merits. March v. Levine, 136 F. Supp. 2d 831, 833-34 (M.D. Tenn. 2001); see also March v. Levine, 249 F.3d 462, 474 (6th Cir. 2001); Van De Sande v. Van De Sande, 431 F.3d 567, 572 (7th Cir. 2005). The Court heard oral argument on the Petitioner’s summary judgment motion on May 6, 2021 and then held a two-day evidentiary hearing on May 25 and June 1, 2021 where both parents testified under oath.

 

          The undisputed facts demonstrated that Petitioner established each element of a prima facie case under the Hague Convention. The United States and Israel are both signatories to the Convention. The three children are all under the age of 16, were each born in Israel, went to school exclusively in Israel, and carried Israeli and American passports. The children were habitual residents of Israel. There was no dispute that Petitioner had custody rights under Israeli law and was exercising those rights at the time the children were removed from Israel. Petitioner lived with Respondent and the children until approximately July 2019. After moving out of their shared home, Petitioner continued to make attempts to visit and contact the children until they were removed from Israel. Respondent did not dispute Petitioner’s custody rights or that those rights were being exercised. Petitioner  satisfied his burden under the Hague Convention and ICARA and established that the surreptitious removal of the children by Respondent to New York was wrongful.

 

The district court found that respondent failed to show that there were any disputed material facts that supported her affirmative defenses. “[O]nce a [petitioner] establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses.” Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999) (“Blondin II”)

 

Article 13(a) of the Hague Convention provides that a court “is not bound to order the return of the child if the person ... [who] opposes its return establishes that – the person ... having the care of the person of the child ... had consented to or subsequently acquiesced in the removal or retention.” Hague Convention, art. 13(a). The consent and acquiescence defenses are distinct from one another, and both exceptions are narrow. Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir. 2005); Blondin II, 189 F.3d at 246. In order to establish this affirmative defense, the respondent must prove by a preponderance of the evidence that petitioner either previously consented or subsequently acquiesced to the removal of the children. 22 U.S.C. § 9003 (e)(2)(B).. While “consent needn’t be formal,” Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1359 (11th Cir. 2020), it is “important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” Baxter, 423 F. 3d at 371. “The key to the consent inquiry is 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).

 

 

Respondent argued that Petitioner consented to the children’s relocation to New York during the parties’ divorce negotiations, and that the parties disagreed only on “how much money Petitioner would extract from Respondent’s family to pay his extraordinary debts.” This argument was belied by the undisputed evidence. First, it is undisputed that on August 27, 2019, Petitioner’s Israeli counsel informed Ms. Bash that the children were not to leave Israel without the Petitioner’s consent. This undisputed fact, admitted to by Respondent, undermined the statements in Ms. Bash’s declaration and the argument that Petitioner consented to the removal of the children to the United States. Second, it was undisputed that the agreements laying out the terms of the parties’ divorce and their child custody arrangement were in draft form and unexecuted. Also unavailing was Respondent’s contention that Petitioner’s communications in the years prior to her removal of the children to New York evidence consent.

 

A showing of acquiescence requires a higher degree of formality; either a formal statement by petitioner or a consistent attitude of acquiescence over a significant period of time.” Laguna, 2008 WL 1986253, at *7. An acquiescence defense “requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich, 78 F.3d at 1070. Where, as here, “a petition for the return of the children is filed prior to the end of the statutory period, courts will find acquiescence in only a limited set of scenarios.” Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1290 (S.D. Fla. 1999). Accordingly, “[e]ach of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Friedrich, 78 F.3d at 1070. Respondent’s assertion that Petitioner subsequently acquiesced to the children’s removal, based on a text message from Petitioner telling her to “stay there” the day after she arrived in New York, did not meet the level of formality required for this defense. Petitioner has actively pursued his rights under the Hague Convention by seeking counsel and filing a timely petition after learning from the Israeli police that Respondent and the children had left Israel. Baxter, 423 F.3d at 372; In re Interest of Zarate, No. 96 C 50394, 1996 WL 734613, at *3 (N.D. Ill. Dec. 23, 1996) Thus, the acquiescence defense was inapplicable.

 

 

Article 13(b) of the Hague Convention provides that a court “is not bound to order the return of the child” if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). A respondent must establish this defense by “clear and convincing evidence.” In re Lozano, 809 F. Supp. 2d 197, 220 (S.D.N.Y. 2011). “[A] grave risk of harm from repatriation arises in two situations: ‘(1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.’ ” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).“The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.”  “The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” The Second Circuit has described the grave risk determination as falling on a spectrum: “at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.” Blondin IV, 238 F.3d at 162. As with the entirety of the Hauge Convention analysis, the focus of the grave risk inquiry is “not the relationship between the two parents or the desirability of one party having custody.” Souratgar v. Fair, 2012 WL 6700214 at *7 (S.D.N.Y. 2012). Rather the focus is on whether the return of the children to the country they were removed from will create a true risk of harm to the children.

 

The grave risk defense has been found to be satisfied where respondents show “a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child.” Souratgar, 720 F.3d at 104. Additionally, spousal abuse can establish a grave risk of harm “when it occurs in the presence of the child.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014); see also Souratgar, 720 F. 3d at 103-104. Importantly, “[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Souratgar, 720 F. 3d at 104. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.”

 

It was undisputed that in July 2019 Petitioner and Respondent had an argument while in Petitioner’s car. After parking the car in front of the family home he forcibly removed Respondent from the car by grabbing her arm, resulting in a bruise on Respondent’s arm. Petitioner also admitted that, three- or four-times during arguments, when Respondent would “come to [his] face” he would “push her back.” (Respondent’s testimony confirmed these events, but noticeably absent wass any evidence that these events took place in front of the children. There was no evidence in the record to support a finding that Petitioner’s conduct towards Respondent was observed by the children or puts the children at a grave risk of harm.

 

Respondent never claimed that Petitioner ever physically abused any of the children. Respondent testified that Petitioner would “belittle” N.V. It is alleged, that Petitioner would shout at N.V. and tell him that he needed to “succeed,” “do better,” “leave [his] phone alone,” not be “stupid,” and not be “stupid like [Petitioner]” because he didn’t finish high school. These allegations, while perhaps not the most pedagogically advanced, do not amount to a grave risk of physical or emotional abuse from Petitioner. The allegations here regarding treatment of the children can be characterized as disciplinary in nature. Souratgar, 720 F.3d at 105.

 

Respondent alleged that Petitioner abused drugs, left drugs lying around the home, and was “totally consumed” by drugs to the point that he was “unable to function as a parent.” Petitioner admitted to using drugs “recreationally” about once every month or two when he would go to an event or party. “Drug use, under certain circumstances, ... may qualify as grave-risk conduct.” Mlynarski v. Pawezka, 931 F. Supp. 2d 277, 284 (D. Mass. 2013), aff’d, 2013 WL 7899192 (1st Cir. May 8, 2013). Courts use a two-step approach to determine whether allegations of drug use qualify as a grave risk. “[T]he court must first determine whether the alleged ... drug use in fact occurred. Beyond that, the court must consider as part of the grave risk analysis how such conduct, if confirmed, would affect the child were he to be returned to his habitual residence.”  Respondent admitted that she never witnessed Petitioner use drugs in front of the children. It was clear that the drug use at issue here did not rise to the level that put the children at a grave risk of harm.            Respondent failed to meet her burden to establish by clear and convincing evidence that the children’s return to Israel would expose them to a “grave risk of physical or psychological harm or otherwise place [them] in an intolerable situation.” Convention, Art. 13(b).

 

Respondent’s third and final defense relied on an unnumbered provision in Article 13 of the Hague Convention, which provides that a court may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, art. 13. There is no “minimum age at which a child is old enough and mature enough to [object and] trigger this provision.” Blondin IV, 238 F.3d at 166. However, the exception must be “construed narrowly so [its] application does not ‘undermine the express purposes of the Convention.’ ” Yang v. Tsui, 499 F.3d 259, 278 (3d Cir. 2007)). Notably, proving that the defense applies is not dispositive; courts ultimately retain discretion to order repatriation despite that showing. Blondin II, 189 F.3d at 246 n.4; see also Haimdas v. Haimdas, 720 F. Supp. 2d 183, 204 (E.D.N.Y. 2010). Generally, “[a] child’s expression of a preference to remain in the United States rather than a particularized objection to repatriation may provide a basis for a court to find the mature child exception inapplicable.” Haimdas, 720 F. Supp at 206; see also Yang, 499 F.3d at 280.

 

Having reviewed expert report submissions reflecting a combined 5 hours and 50 minutes of clinical interviews with R.V. and N.V, the Court concluded that Respondent’s child objection defense was unavailing and declined to apply the exception. Neither one of the expert reports suggested that N.V. held an unequivocal, bona fide objection to repatriation. In his interview with Dr. Favaro, N.V., who is twelve years old, stated that returning to Israel would make him “anxious and upset” because “[h]e likes the school here [in New York], ... has made good friends [in New York], and loves living with his maternal grandparents and would miss his family life if he were forced to return [to Israel].” N.V.’s wishes did not rise to the level of an unequivocal objection to return to Israel. While N.V. expressed that he would be “anxious and upset” to return, his stated reasons for feeling that way revolve around his enjoyment of his new school and new friends, and that he likes living with his maternal grandparents. These reasons did not indicate a substantial basis for his objection to a return to Israel, so much as it reflected his enjoyment of his current lifestyle in New York. The case for declining to apply the mature child exception was even stronger after examining R.V.’s alleged objections. According to Petitioner’s expert, R.V., who recently turned fifteen, “reported that life in Israel ‘was not bad.’ ” Respondent’s expert, meanwhile, reported that R.V. “expressed a preference to stay in the United States and that the quality of his life would not be satisfying if he returned to Israel.” Again, there was no unequivocal objection here—neither a mere preference nor expected quality of life are relevant considerations under the Hague Convention. R.V. “at no point ... express[ed] a clear objection to his return to Israel.” Respondent did not meet her burden of showing that R.V. unequivocally objects to repatriation to Israel. Accordingly, this Court declined to apply the discretionary mature child exception.

 

Jacquety v Baptista, 2021 WL 3034045 (S.D. New York, 2021)[France] [[Petition denied][Costs]

In Jacquety v Baptista, 2021 WL 3034045 (S.D. New York, 2021) the Court found in favor of Respondents and denied the petition for return. Respondent Tena Baptista (“Respondent”) moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1.

 

          The Court observed that the items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Section 1920 lists six categories of recoverable costs: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. § 1923]; and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].  

 

A court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (court is not authorized “to tax whatever costs may seem appropriate”). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs. When interpreting and applying the costs statute, “the Supreme Court has explained that Section 1920 should be read as limiting taxable costs ‘to relatively minor, incidental expenses,’ such that ‘the assessment of costs most often is merely a clerical matter that can be done by the court clerk.’ ” Endo Pharmaceuticals, 331 F.R.D. at 580 (quoting Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 573, 132 S. Ct. 1997, 2006 (2012)). Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006.

 

Trial Transcripts. Respondent initially sought $47,858.88 for costs of trial transcripts but, after Respondent’s objection, reduced the demand to $42,333.84 by removing costs attributable to “minuscripts” and same-day delivery of transcripts.  Fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent.

 

Printing, Copying, and Exemplification. Respondent initially claimed $44,455.49 for printing and copying, including for preparing exhibit binders provided to witnesses, opposing counsel, and the Court. Of that amount, $36,352.75 was allocated to printing and copying, and $8,102.74 to costs associated with exemplification at trial. Petitioner challenged the extent of printing and copying as excessive. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs are attributed to exemplification as distinct from those that fell under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeds what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. Taking all these considerations into account, the Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.

 

Interpreters. Interpreters were employed for trial because the parties’ native language was French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees were awardable based on this District’s local rules, because the costs sought were those associated with the testimony of Respondent who was a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4). Costs for Respondent’s interpreter were denied.

 

Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, TrialGraphix, which provided technology for and facilitated trial. Petitioner contended that Respondent is not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner was correct. Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting. Costs of conducting the trial remotely were denied.

Recent Hague Convention District Court Cases Mata- Cabello v Thula, 2021 WL 3040959 ( D. Puerto Rico, 2021) [Costs and attorneys fees] [Denied] [Costs stemming from the translation of written documents do not qualify as “compensation of interpreters,” as that term is used in 28 U.S.C. § 1920(6)] [ICARA§ 11607, provides for fees only to a prevailing petitioner; the section does not provide for fees to a prevailing respondent] .

 

Mata- Cabello v Thula, 2021 WL 3040959 ( D. Puerto Rico, 2021)

[Costs and attorneys fees] [Denied] [Costs stemming from the translation of written documents do not qualify as “compensation of interpreters,” as that term is used in 28 U.S.C. § 1920(6)] [ICARA§ 11607, provides for fees only to a prevailing petitioner; the section does not provide for fees to a prevailing respondent] .

Recent Hague Convention District Court Cases - Vieira v DeSouza, 2021 WL 2980729 (D. Mass, 2021) [Brazil] [Habitual Residence] [Petition granted][Grave risk of harm not established]

 

Vieira v DeSouza,  2021 WL 2980729 (D. Mass, 2021)

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

Recent Hague Convention District Court Cases - Ho v Ho, 2021 WL 2915161 (N.D. Illinois,2021) [New Zealand][Habitual residence][Rights of Custody][Petition granted] [Grave Risk of Harm not established]

 

Ho v  Ho, 2021 WL 2915161 (N.D. Illinois,2021)  

[New Zealand][Habitual residence][Rights of Custody][Petition granted] [Grave Risk of Harm not established]

Recent Hague Convention District Court Cases - Hart v Anderson, 2021 WL 2826774 ( D. Maryland, 2021) [France] Necessary Expenses] [Denied] [Clearly inappropriate] [Award would impair respondent’s ability to care for child][Unclean hands]

 Hart v Anderson, 2021 WL 2826774 ( D. Maryland, 2021)

[France] Necessary Expenses] [Denied] [Clearly inappropriate] [Award would impair  respondent’s ability to care for  child][Unclean hands]

Recent Hague Convention District Court Cases - Sain v Sain, 2021 WL 2784324 (M.D. Florida, 2021) [United Kingdom] [Habitual residence][Petition denied]

 Sain v Sain, 2021 WL 2784324 (M.D. Florida, 2021)

[United Kingdom] [Habitual residence][Petition denied]

Recent Hague Convention District Court Cases - Berenguela- Alvarado v Castanos, 2020 WL 10055693 ( S.D. Florida, 2020). [Chile][On remand from Court of Appeals for the Eleventh Circuit. vacating District Court Order Denying Petition for Return and remanding for further proceedings to reassess Respondent’s consent defense under the proper legal framework articulated by the Eleventh Circuit] [Petition granted] .

 Berenguela- Alvarado v Castanos, 2020 WL 10055693 ( S.D. Florida, 2020).

[Chile][On remand from Court of Appeals for the Eleventh Circuit. vacating District Court Order Denying Petition for Return and remanding for further proceedings to reassess Respondent’s consent defense under the proper legal framework articulated by the Eleventh Circuit] [Petition granted] .

Recent Hague Convention District Court Cases - Nowlan v Nowlan, 2021 WL 2379815 ( W.D. Virginia, 2021) [Canada] [Habitual residence ] [Petition granted] [Grave risk of harm].

 Nowlan v Nowlan, 2021 WL 2379815 ( W.D. Virginia, 2021)

[Canada] [Habitual residence ] [Petition granted] [Grave risk of harm].

Recent Hague Convention District Court Cases - Kenny v. Davis, 2021 WL 2275983 (D. Alaska, 2021) [Republic of Ireland] [Habitual Residence] [ Petition Denied]

 

Kenny v. Davis, 2021 WL 2275983 (D. Alaska, 2021)

[Republic of Ireland] [Habitual Residence] [ Petition Denied]

 

Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021)[Chile] [Petition denied][Mature Child][Well-Settled][Grave Risk of Harm]

 In Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021) Rodrigo Andres Alvarez Romero appealed the district court’s denial of his petition for return of his minor children to Chile. The Eleventh Circuit affirmed.  

ABB and PDCB were Alvarez Romero and Maria Eugenia Gajardo Bahamonde’s minor daughters. ABB was born in 2006 and PDCB was born in 2013. Alvarez Romero and Gajardo Bahamonde were citizens of Chile and had never been married. Their children were born in Chile. Gajardo Bahamonde, ABB, and Mauricio Loyola (Gajardo Bahamonde’s son from a prior relationship) testified that Alvarez Romero frequently abused Gajardo Bahamonde emotionally and physically, including beating her so severely she had a miscarriage. Because ABB and PDCB witnessed the abuse, the Chilean Family Court ordered them to undergo mental health treatment. In the treatment program, both children were diagnosed with “mild psycho-affective damage” due to the abuse they saw their father inflict on their mother. This abuse included an incident when Alvarez Romero broke her nose and another when he knocked her unconscious while the children were lying beside her in bed. Loyola testified that Alvarez Romero was often verbally and physically abusive to Gajardo Bahamonde in front of the children. He said that Alvarez Romero would hit his mother, call her “a whore,” and say she was worth less than him because “he was an engineer and she was nothing.” Loyola witnessed one occasion when Alvarez Romero beat Gajardo Bahamonde so severely that he broke her ribs. Loyola recounted at least one incident where ABB witnessed Alvarez Romero severely beat their mother. And both daughters often heard their father verbally abuse their mother. Alvarez Romero would beat Loyola as well, including by hitting him with a belt. ABB witnessed several other incidents, including one when Alvarez Romero almost ran into ABB while trying to hit her mother. ABB also described Alvarez Romero’s disturbing behavior toward ABB and PDCB. For example, he forced ABB to stay up for hours past her bedtime as punishment for doing poorly on a school assignment; he locked PDCB in the car while shopping when she wouldn’t stop crying that she wanted her mother; and he took the children with him to buy drugs (which he used in their presence) and drove with the children while under the influence.  Alvarez Romero denied all allegations of abuse. The district court found Alvarez Romero’s claims that he never abused the mother of his children and that she falsified the allegations of abuse not to be credible.

 

Following the separation, Gajardo Bahamonde lived with the children in abject poverty. In December 2017, Alvarez Romero told Gajardo Bahamonde he wanted to take the children to visit his mother in the United States, during which time they would also have the opportunity to visit Disney World. Gajardo Bahamonde consented to the trip, based on her belief that the children would be under the care of their grandmother. She signed a travel authorization form allowing the children to travel to the United States from December 2017 to March 2018.  

Gajardo Bahamonde testified that in January 2018, Alvarez Romero told her he would not be returning the children to Chile and that if she ever wanted to see them again, she would have to come join them in the United States. Alvarez Romero denied ever saying this. But that month, he got a full-time job in the United States, bought a car, and enrolled ABB in school and PDCB in daycare. After she learned that Alvarez Romero enrolled the daughters in school and daycare in the United States, Gajardo Bahamonde left her job in Chile and sold possessions in order to pay for a ticket to travel to Alvarez Romero’s mother’s home in Florida in February 2018 to be with the children. Two months later, Gajardo Bahamonde moved out and took PDCB with her because, she said, Alvarez Romero began sexually harassing her and verbally and physically abusing her in front of the children. ABB testified that she saw Alvarez Romero abuse Gajardo Bahamonde while she was living with them in Florida. Gajardo Bahamonde also described an incident when Alvarez Romero pushed her while she was at work, prompting a co-worker to call the police. Gajardo Bahamonde’s testimony about that incident is supported by a police report. Gajardo Bahamonde filed for a domestic violence protection order in Florida after that incident.  Initially, ABB stayed with her grandmother and father. But after her grandmother went back to Chile, ABB’s living situation worsened. ABB testified that she started missing a lot of school, there was almost no furniture in the home they stayed in, she was alone in the home for most of the day, and was left without food or a phone. Her mother came and took ABB to live with her after ABB called upset that she was stuck alone in the house with no food while Alvarez Romero was at work. The Florida court scheduled two hearings about Gajardo Bahamonde’s petition for a protective order. Alvarez Romero did not appear and instead returned to Chile. After Alvarez Romero failed to appear at the first hearing and returned to Chile, Gajardo Bahamonde moved to Georgia. The petition was dismissed for failure to appear. Gajardo Bahamonde did not further pursue the protective order after Alvarez Romero left the United States because she knew he could not return. When Alvarez Romero returned to Chile, he took the children’s passports with him. Initially, he remained in contact with ABB. They spoke about planning a trip for the children to return to Chile. Gajardo Bahamonde repeatedly asked Alvarez Romero to return the passports but he never did. Gajardo Bahamonde and the children moved to Georgia in November 2018. Since then, the children had lived in one home and attended the appropriate schools. In June 2020, Alvarez Romero filed an ICARA petition, claiming that, as of November 2018, Gajardo Bahamonde wrongfully retained the couple’s two minor children, ABB and PDCB, in the United States, at the time 14 and 7 years old, respectively.

 *4 Because Gajardo Bahamonde sought to rely on the mature child exception as to ABB, the district court interviewed ABB in chambers. The district court first spoke to ABB alone and provided a summary to the parties. Next, the district court asked ABB questions the parties submitted in advance. The parties could not directly cross-examine ABB, but they listened to the district court interview her over the phone and were permitted to submit follow-up questions. Neither party submitted any follow-up questions.

 During that hearing, ABB objected to returning to Chile. At the time of the hearing, ABB was 14 years old. She was doing well at school and the record does not indicate that she had any kind of difficulties adjusting to life in the United States. She stated that she wanted to stay in the United States because her life in Chile was unstable. In Chile, she lived in poverty, frequently moved, and was constantly in fear that Alvarez Romero would find them and hurt her mother. Without prompting, ABB described a number of instances where she saw her father beat her mother, including some incidents her mother did not know ABB witnessed. For example, she described an incident when her father threw boiling water on her mother while she was cooking, at which point ABB called the police. ABB, her mother, her sister, and her half-brother then had to live in a hotel to stay safe from her father. She recalled watching her father purchase and consume drugs in her presence. She also recalled several interactions with the police in Chile when they responded to Alvarez Romero’s violent outbursts. ABB also testified that she witnessed her father hit her half-brother, giving him a black eye.

 The Eleventh Circuit rejected Alvarez Romero argument that ABB could only testify about her objections to returning to Chile because “the Hague Convention does not authorize the Court to interview a child or any other witness in chambers, without the opportunity for cross-examination, on substantive issues in the case.” Instead, he said  a court may only interview a child to determine whether the mature child exception applies. The court held that contrary to Alvarez Romero’s contentions, courts regularly rely on the child’s testimony in Hague Convention cases for issues besides the mature child exception

 The Eleventh Circuit rejected the argument that the district court improperly applied the mature child exception to ABB. Courts have relied primarily on three considerations in determining when this exception applies: (1) whether the child is sufficiently mature; (2) whether the child has a particularized objection to being repatriated; and (3) whether the objection is the product of undue influence. See Colon v. Mejia Montufar, 470 F. Supp. 3d 1280, 1295 (S.D. Fla. 2020) (citing Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007)).  As to the first factor, courts have looked to the child’s age, ability to express mixed feelings, and to plan past obstacles as indications of maturity. Alvarez Romero said the district court relied solely on ABB’s age in finding that she was sufficiently mature, but that assertion wass not supported by the record. The district court considered ABB’s age (she was fourteen years old at the time), the fact that she was able to express some positive feelings about life in Chile, her ability to provide detailed answers demonstrating an understanding of her situation, and the testimony of her teacher in finding that she was sufficiently mature. In determining whether a child has particular objections to repatriation, courts consider whether the child is expressing merely a preference against return or is “affirmatively objecting to returning to one country—when living in that country would be unacceptable.” Rodriguez v. Yanez, 817 F.3d 466, 477 (5th Cir. 2016). Alvarez Romero claimed that ABB expressed a mere preference to stay in the United States, but he did not support this claim with references to the record. An actual review of the record showed that ABB provided lengthy and detailed particularized objections to being repatriated to Chile based on her father’s constant verbal and physical abuse of her mother. Alvarez Romero also insisted that ABB’s testimony could only be the product of Gajardo Bahamonde’s undue influence. When considering whether a child’s objection is the product of undue influence, courts place great weight on whether the objection is based on the child’s firsthand experiences. Colon, 470 F. Supp. 3d at 1298 (collecting cases). Unquestionably, ABB’s objections were based on her firsthand experiences. She described witnessing numerous incidents of Alvarez Romero physically and verbally abusing her mother, going hungry and homeless when Alvarez Romero cut off her mother financially, observing Alvarez Romero take drugs, and being subject to his harsh discipline. The district court did not err in applying the mature child exception to ABB.

When a Hague Convention petition is filed more than a year after a child is retained, the retaining parent can assert the well-settled defense. Hague Convention Art. 12 (noting that the child must still be returned if the petition is filed after one year “unless it is demonstrated that the child is now settled in its new environment.”) The retaining parent must establish that the child is well-settled by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). Alvarez Romero filed the  petition more than one year after Gajardo Bahamonde and the children remained in the United States. But Alvarez Romero complained that the district court should not have considered the well-settled defense because he says Gajardo Bahamonde concealed the children’s location from him. Alvarez Romero’s argument failed on both the facts and the law. As a factual matter, the district court determined that Gajardo Bahamonde did not conceal the children’s whereabouts from Alvarez Romero.  And even if the record indicated that Gajardo Bahamonde had concealed the location of her children, that alone would not prevent her from asserting the well-settled defense. As the Supreme Court held in Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S. Ct. 1224 (2014), concealment does not equitably toll the one-year deadline for a parent to file a petition and preclude the retaining parent from asserting the well-settled defense. Id. at 4, 134 S. Ct. at 1228. Therefore, the district court properly considered the well-settled defense here.

The Eleventh Circuit rejected the argument that the district court’s factual findings did not support its ruling that the children were well-settled in the United States. In this circuit, a child is well settled for purposes of the Hague Convention “when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment.” Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018). The district court’s application of the well-settled defense is reviewed for abuse of discretion. Courts look to how frequently children move around within their new country, whether they attend extracurricular and community activities, and whether they regularly attend school when determining whether they are well-settled. Lozano, 572 U.S. at 17, 134 S. Ct. at 1236 (collecting cases). The children had been living in the United States since December 2017, when Alvarez Romero brought them here. They had been enrolled in school in the United States since January 2018, when he first enrolled them. They changed school districts only once—when they moved to Georgia in November 2018. Both children were doing well in school. Before the onset of the Covid-19 pandemic, both children were involved in numerous extracurricular activities, including music lessons, skating, swimming, and soccer. They had close friendships at school and in their neighborhood. The children get along with each other. They were also close with their half-brother, who visited from Alabama every few weeks. Gajardo Bahamonde and the children’s visas were expired. An immigration attorney, who presented expert testimony as to immigration law matters, advised that Gajardo Bahamonde was not under any threat of removal and that she had three options for regularizing her status.

 The Court found that record clearly established that ABB and PDCB would face a grave risk of harm if returned to Chile. For years, Alvarez Romero physically and verbally abused Gajardo Bahamonde, including beating her so severely that she miscarried and breaking her ribs and nose. The children witnessed numerous incidents of abuse, to the extent that they underwent court-mandated mental health treatment. And when Gajardo Bahamonde was finally able to leave this abusive relationship, Alvarez Romero left her and their children homeless and hungry. Alvarez Romero abused drugs while caring for his children, including in their presence. Alvarez Romero challenged the district court’s factual findings. He argues that the district court should have credited his and his mother’s testimony denying abuse instead of crediting Gajardo Bahamonde, ABB, and Loyola’s testimony describing his abuse and other disturbing behavior. But Alvarez Romero again fails to show that the district court’s credibility determinations were clearly erroneous. The Court saw no basis for displacing the district court’s findings that the testimony that Alvarez Romero abused Gajardo Bahamonde for years was credible and his denials were not credible.