Douglas v Douglas, 2021 WL 4286555 (6th Cir., 2021)[Australia] [Habitual Residence] [Summary Judgment] [Petition denied]

 

In Douglas v Douglas, 2021 WL 4286555 (6th Cir., 2021) in late October 2017, Heath, an Australian man, contacted Nancy, an American woman, on a dating website. Heath lived in Curlewis, New South Wales (NSW), Australia, and Nancy lived in Boston, Massachusetts. Heath and Nancy began communicating via telephone in November 2017. The same month, the parties began planning for Nancy to visit Heath. Heath purchased a roundtrip ticket for Nancy to fly to Australia for “[a] few weeks” beginning in late December. Nancy left her associate-editor job in Boston, where she had worked since August 2016. The same company hired her to work remotely as a freelance editor. Nancy arrived in Australia on December 21, 2017. Upon her arrival, Heath gave her an American Express card with $7,000 and told her, “[L]ook, any time you want to go back, use that, go home, you don’t have to stay.” Shortly after Christmas, Heath proposed marriage, and Nancy accepted. The parties were married on February 10, 2018. Nancy moved into Heath’s home, and within a month, she became pregnant. The couple began arguing soon after their marriage. The arguments occurred “[e]very few days” and were “[s]evere.” Nancy testified that the “themes” of these arguments were “[t]hat [she] was disrespecting [Heath] and not submitting to [him].” Despite the parties’ marital strife, they attempted to build a life together in Australia. On June 6, 2018, Heath paid $7,000 to the Australian Department of Home Affairs to sponsor Nancy’s Permanent Partner Visa. Nancy obtained a debit card linked to Heath’s National Australian Bank account. On June 29, 2018, the parties signed a twelve-month lease for an apartment in Merewether, NSW. By October 2018, the parties began seeking marriage counseling. At the end of October, Heath told Nancy that he “[couldn’t] handle this” and stayed at a motel for the night.. Around the same time, he told Nancy to “get the F out” of the apartment. He then ran after her and she returned, telling him that she wanted a divorce. However, the couple did not divorce at that time. Nancy and Heath’s son, J.D., was born in Australia on November 4, 2018. Nancy’s mother flew to Australia for J.D.’s birth. On the morning of November 7, 2018, Heath and Nancy got into an argument. When Heath returned home from work, he told Nancy to “get out” of the apartment... Heath and Nancy had not lived together since November 7, 2018. On November 21, 2018, Nancy sent an e-mail to Heath stating: The marriage is over. I would like to return to America with [J.D.] Will you agree to this and sign his [Australian-passport application]? There can still be ways to see and spend time with [J.D.] .... This email confirms that we have officially separated as of today, 21/11/18. After separating from Heath, Nancy applied for child support. On December 3, 2018, a law firm representing Nancy wrote a letter to Heath informing him that Nancy “wishes to return to Michigan ... to live with her parents ... and seeks to also relocate [J.D.’s] residence to the United States.” On December 7, 2018, Heath sent Nancy an e-mail stating, “I understand that you really do not want me in your life anymore, and this really hurts.” On December 9, 2018, Heath wrote Nancy another e-mail stating, “you obviously aren’t coming back to me.”. Sometime between December 2018 and January 2019, Heath left the parties’ Merewether apartment and moved over three hours away, back to Curlewis. On December 13, 2018, Heath commenced a custody proceeding in federal circuit court in Australia.   On December 15, 2018, Nancy wrote a letter to Heath: please sign [J.D.’s Australian-passport application] so I can go somewhere where I have support and people I know and a free place to stay. I need the space. If you want, I can show you my return ticket. if you really love me, you’ll let me go. As it turns out, Nancy had not purchased a return ticket to Australia, and Heath did not ask to see a return ticket. On December 24, 2018, Heath responded: OK nancy, Merry Christmas. Please take care of our little man.. On the back of his letter, Heath wrote: No conditions. No expectations. I will provide, love heath xo. Heath signed J.D.’s Australian-passport application. Also on December 24, 2018, Heath dismissed the custody proceeding he initiated earlier that month. In January 2019, Heath paid a child-support assessment. On January 11, 2019, Heath wrote a letter to Nancy stating: You are free to go home now. I am sorry for not getting these through to you earlier, but maybe the timing is just right? I don’t know. I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing! Thanks for your patience with me as I learnt what it is to be a good Dad and friend. I have never had to sacrifice so much! Be blessed nancy!  On January 30, 2019, Heath signed a letter authorizing J.D. to travel with Nancy to the United States. The next month, Nancy unilaterally withdrew her Permanent-Partner-Visa application.

 

On February 13, 2019, Nancy and J.D. flew to the United States. Nancy ended Heath’s child-support assessments. Since their arrival, Nancy and J.D. lived with Nancy’s parents in Michigan. Nancy filed for divorce in September 2019 and served Heath with divorce papers in Australia on October 3, 2019.  Heath filed this petition for return of J.D. on May 14, 2020. Following discovery on the issue of J.D.’s habitual residence, Nancy filed a motion for summary judgment, arguing that there was no genuine dispute that J.D.’s habitual residence was the United States. The district court granted Nancy’s motion, concluding that immediately before the alleged wrongful retention, J.D.’s “habitual residence” was Michigan, not Australia. Heath appealed. 

The Sixth Circuit affirmed. It reviewed de novo a grant of summary judgment, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor. The Court observed that child’s habitual residence depends on the totality of the circumstances specific to the case.” Monasky, 140 S. Ct. at 723. “A person can have only one habitual residence.” Simcox v. Simcox, 511 F.3d 594, 602 (6th Cir. 2007). In Monasky, the Supreme Court articulated several principles for determining habitual residence. The term “habitual” “suggest[s] a fact-sensitive inquiry, not a categorical one.” Monasky, 140 S. Ct. at 726. Habitual residence does not turn on the existence of an actual agreement or on any other categorical requirement. “The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” A child’s residence in a particular country can only be considered “habitual” when “her residence there is more than transitory.” Id. “What makes a child’s residence ‘habitual’ is ... ‘some degree of integration by the child in a social and family environment.’ ” Moreover, [b]ecause locating a child’s home is a fact-driven inquiry, courts must be “sensitive to the unique circumstances of the case and informed by common sense.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence. But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus. And “[a]n infant’s ‘mere physical presence’ ... is not a dispositive indicator of an infant’s habitual residence[,] ... [b]ut a wide range of facts[,] ... including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ” 

 

Heath’s complaint alleged that Nancy’s retention of J.D. became wrongful on October 3, 2019. Heath did not challenge the wrongful-retention date on appeal. The Court noted that one factor informing a young child’s habitual residence is the caregiving parents’ “intentions and circumstances.” Monasky, 140 S. Ct. at 727. Some evidence suggests that before J.D. was born, the parties may have intended to raise him in Australia: Nancy obtained a debit card linked to Heath’s National Australian Bank account; the parties signed a twelve-month lease for an apartment in Merewether; Nancy obtained an NSW driver’s license; the parties contemplated a ten-year plan to live in Australia; and Nancy applied for a Permanent Partner Visa. 

Other evidence, however, more strongly indicated that by the wrongful-retention date, the parties intended for J.D. to live in the United States. In October 2018, the parties got into an argument in which Heath told Nancy to “get the F out” of their apartment and Nancy told Heath that she wanted a divorce. Three days after J.D. was born, Heath exiled Nancy from the apartment again. The parties lived separately after that point. On December 3, 2018, a law firm representing Nancy informed Heath that Nancy wished to return to Michigan and relocate J.D.’s residence there. Heath’s e-mails from December 7 and 9, 2018 stated, “I understand that you really do not want me in your life anymore” and “you obviously aren’t coming back to me.” On December 24, 2018, in response to Nancy’s request for Heath to sign J.D.’s passport application, Heath replied, “OK nancy, ... Please take care of our little man.” On the back of the letter, Heath wrote, “No conditions / No expectations.” On the same day, Heath signed J.D.’s passport application and dismissed the custody proceeding he had initiated eleven days earlier. On January 11, 2019, Heath sent a letter to Nancy stating, “You are free to go home now. ... I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing!” In a letter dated January 30, 2019, Heath authorized J.D. to travel with Nancy to the United States.

 

Heath argued that he wrote “No conditions / No expectations” “after Nancy’s promise to return,” and that this context creates an issue of fact as to the parties’ intent. Appellant’s Br. at 32–33. Heath testified that “No conditions / No expectations” meant he “didn’t want to put any expectation or conditions on her travel if she needed to go anywhere to see friends [or] family,” he “[did not] want to be a controlling husband[,] and [he did not] want to hold her back if she need[ed] to go anywhere.” R. 35-2, PID 274. Because we must draw all reasonable inferences in Heath’s favor, we take this testimony as true. See Fisher, 951 F.3d at 416. But even accepting this interpretation of the December 24th correspondence, other evidence in the record, including Heath’s January letters and the parties’ conduct, establish that by the wrongful-retention date, the parties intended for J.D. to live in the United States.

 

Another relevant consideration is the “degree of integration by the child in a social and family environment.” Monasky, 140 S. Ct. at 726 (quotation omitted). When Heath directed Nancy to leave their apartment, J.D. was three days old. For three months afterward, Nancy, her mother, and J.D. moved between rentals and other temporary housing. Heath moved over three hours away from the Merewether apartment. J.D. was not meaningfully integrated in any social or family environment in Australia; his residence there was merely transitory. In contrast, J.D. had lived in Michigan with his mother and maternal grandparents for over seven months by the wrongful-retention date. Thus, as of October 3, 2019, J.D. was “at home” in Michigan, not Australia.

 

Recent Hague Convention District Court Cases - Dumitrascu v. Dumitrascu, 2021 WL 4197378 ( D. Colorado, 2021) [Romania] [Habitual residence][Petition granted]

 Dumitrascu v. Dumitrascu, 2021 WL 4197378 ( D. Colorado, 2021)
[Romania] [Habitual residence][Petition granted]  

In re ICJ--- F.4th ----, 2021 WL 4187853 (9th Cir.,2021)[France][Habitual Residence] [Grave risk of harm] [Undertakings]

 

In re ICJ--- F.4th ----, 2021 WL 4187853 (9^th Cir.,2021) Kerry Jones, a British citizen, and his wife Cassandra Fairfield, a citizen of the United States, married and lived in France. In 2018, they had a daughter, ICJ, who resided with them, or one of them, in France until October, 2020. Then, after marital problems arose and Jones filed for divorce in France, Fairfield took ICJ to the United States, without the assent of Jones. Jones initiated this litigation under the Hague Convention. The Ninth Circuit held that the district court erred in denying Jones’s petition for ICJ’s return to France. It vacated the district court’s decision and remanded for further proceedings.

 

In an effort to expedite these proceedings in the district court, the parties agreed during a video hearing to present this case through documentary evidence rather than by calling witnesses. The documentary evidence included declarations by the parties which contradicted each other in numerous and material ways. The district court did not expressly resolve those material factual disputes.

 

          Jones and Fairfield met online in 2013. At that time, Jones was fifty years old, a British citizen living in France; Fairfield was an eighteen-year-old high school student in the United States. Fairfield visited Jones several times in France. The couple eventually married in 2017. Their daughter ICJ was born in France in August 2018. In January 2020, Jones and Fairfield began talking about separating. The couple’s marital discord intensified when, in March 2020, Jones began working full time from their home due to the COVID-19 pandemic. According to Fairfield: Soon after Jones began working from home, she discovered him viewing child pornography. On another occasion, she caught Jones watching child pornography while ICJ was in the room. Fairfield further discovered that Jones had downloaded hundreds of files of child pornography. Jones denied all of this. He did, however, acknowledge his prior Texas conviction for possessing child pornography. Based on that conviction, the United States removed Jones, a British citizen, and has precluded him from returning. Fairfield asserted Jones never told her about this conviction and she only discovered it sometime after the couple separated. Jones contended Fairfield has known all along about his prior conviction. According to Fairfield, after she confronted Jones about his child pornography addiction, he “became aggressive” toward her throwing a glass at her that shattered near Fairfield and their child, tossing the child’s stroller out a window, flipping a table over, holding Fairfield down and screaming that she made him crazy and violent, and on one occasion raping her. Jones acknowledges throwing the glass, but denied that it shattered near either Fairfield or ICJ. He denied Fairfield’s other accusations of abuse and rape. Between April 24 and May 1, 2020, while the family was still living together, Jones numerous times threatened suicide if Fairfield left him. On May 1, 2020, after Fairfield asked Jones to move to another of their houses, Jones hung himself from a tree outside their home. He survived after Fairfield and several neighbors cut him down. While Jones spent two days recovering in the hospital, Fairfield and ICJ moved to another of the family’s properties. After Jones recovered from the suicide attempt, he “often” visited Fairfield and ICJ. With Jones’s permission, Fairfield took ICJ to visit Fairfield’s family in the United States in June 2020. When Fairfield and ICJ returned to France, in mid-July, they lived in a hotel and then at an Airbnb rental. During this time, Jones visited ICJ frequently and, with Fairfield’s consent, Jones kept ICJ overnight on several occasions. In late July 2020, Jones showed Fairfield a letter he threatened to send to her former employer in Washington, as well as the Spokane newspaper and the Washington State Patrol, accusing Fairfield of being a pedophile and mentally ill. Jones contended this was an attempt to convince Fairfield to be reasonable about the divorce proceedings. According to Fairfield, when she met Jones at a park on July 30 so Jones could play with ICJ, Jones threatened to blackmail Fairfield in order to take custody of ICJ.

 

Jones then filed for divorce in France and Fairfield took ICJ to northern France, about five hours away. Both Jones and Fairfield hired divorce lawyers; the French courts set a hearing in the divorce proceeding for November 17, 2020. According to Fairfield, in mid-August, Jones cut off all financial support for her and ICJ by draining the couple’s joint bank account. After that, Fairfield contended that she was forced to live with ICJ in homeless shelters. While Jones did not dispute that Fairfield and ICJ lived for a period of time in homeless shelters, he denied that he ever cut off Fairfield and ICJ financially and further asserts that Fairfield and ICJ could have lived at one of the couple’s properties. In mid-October, at her attorney’s urging, Fairfield revealed her and ICJ’s location. While negotiations for visitation were ongoing and less than three weeks before the first hearing scheduled in the French divorce proceedings, Fairfield left France with ICJ on October 29, 2020. At that time, it had been three months since Jones had seen ICJ, and two and one-half months since, according to Fairfield, Jones had cut off any financial support. Fairfield filed for divorce in Washington State on November 17, 2020. Jones initiated this litigation in the Federal District Court for the Eastern District of Washington under the Hague Convention on December 29, 2020, seeking ICJ’s return to France so French courts could determine custody of ICJ..

 

          The Ninth Circuit observed that in reviewing a district court’s decision in a Hague Convention case, “we review the district court’s factual determinations for clear error, and the district court’s application of the Convention to those facts de novo.” Flores Castro v. Hernandez Renteria, 971 F.3d 882, 886 (9th Cir. 2020). We review for an abuse of discretion the district court’s determination of whether to return a child to her country of habitual residence in the face of a grave risk. See Radu, ––– F.4th at ––––, 2021 WL 3883013, at *3.”

 

 

The Ninth Circuit held that there were three legal errors in the district court’s rulings that required it to vacate the district court’s decision and remand: (1) Assuming Jones cut off financial support for ICJ, the district court erred as a matter of law in determining that was sufficient to establish that Jones was not actually exercising his custody rights to ICJ because he cut off financial support for the child, and clearly and unequivocally abandoned the child, the showing required for deeming a parent not to be exercising custody rights. (2) The district court erred in declining to return ICJ to France based on a “grave risk” defense, without first considering whether there are alternative remedies available to protect the child and permit her return to France for the period of time necessary for French courts to make the custody determination. (3) The district court erred in relying in part on the pandemic to deny Jones’s petition because the record did not include any evidence addressing what specific pandemic related risk returning ICJ to France would present.

 

The Ninth Circuit held that the district court correctly determined that ICJ’s country of habitual residence was France, French law provided both Jones and Fairfield with the right to custody of ICJ, and Fairfield’s leaving France with ICJ breached Jones’s custody rights. Nevertheless, the district court ruled that Fairfield’s removing ICJ from France was not “wrongful” because at the time of removal Jones was not actually exercising his custody rights, in light of his failure to support ICJ financially. That was error. Federal circuit courts in the United States have consistently required a showing that a parent has clearly and unequivocally abandoned a child before ruling that that parent is not actually exercising his custody rights. The parties here agreed that this is the relevant legal standard. In applying this standard, courts “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Friedrich, 78 F.3d at 1065 (6th Cir.). Once [a court] determines that the parent exercised custody rights in any manner, the court should stop—completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of the federal courts. Jones, as the petitioning parent, had the initial burden of proving by a preponderance of the evidence that he was actually exercising his custody rights to ICJ at the time Fairfield removed the child from France. See 22 U.S.C. § 9003(e)(1). Jones’s burden, however, was “minimal,” Asvesta, 580 F.3d at 1018, and he clearly met it here. The record indicated that, after Jones and Fairfield separated in May 2020, Jones saw ICJ often, both before and after Fairfield took ICJ to visit Fairfield’s family in the United States. Jones kept ICJ overnight on several occasions, with Fairfield’s consent. Jones did not see ICJ after July 30, but it is undisputed that was because Fairfield took ICJ to northern France and did not reveal their whereabouts to Jones. Jones presented evidence, including text messages and emails, indicating that he frequently asked Fairfield to let him see ICJ, to no avail. When Fairfield revealed her location, in mid-October 2020, Jones attorney directed him not to try to see the child, while the divorce attorneys negotiated visitation. Because Jones made the required minimal showing that he was exercising his custody rights, the burden shifted to Fairfield, as the party opposing returning ICJ to France, to prove by a preponderance of the evidence that Jones was not actually exercising his custodial rights. Even accepting Fairfield’s disputed assertion that Jones cut off financial support to Fairfield and ICJ for two and one-half months, Fairfield had not shown that Jones clearly and unequivocally abandoned ICJ. The test Fairfield had to meet to show that Jones had clearly and unequivocally abandoned ICJ is “stringent.” Baxter, 423 F.3d at 370 (3d Cir.) (citing Friedrich, 78 F.3d at 1065–66 (6th Cir.)). Even assuming that Jones cut off Fairfield and ICJ financially for two and one-half months after Fairfield took ICJ to northern France, that was insufficient by itself to establish that Jones clearly and unequivocally abandoned ICJ, in light of Jones’s continuous efforts to see the child. Because that was the only reason advanced by the district court to support its abandonment ruling, the district court erred in concluding Jones was not exercising his custody rights at the end of October 2020, when Fairfield took ICJ to the United States. Contrary to the district court’s decision, then, Fairfield wrongfully removed ICJ from France.

 

In its alternative ruling, the district court held that Fairfield had established that one of those narrow exceptions—when return presents “a grave risk” of placing the child “in an intolerable situation,” H.C., Art. 13(b)—precludes returning ICJ to France. That ruling was inadequate because the district court never considered whether there are “alternative remedies” available that could permit returning ICJ to France while at the same time protecting her from harm. Radu, ––– F.4th at –––– – ––––, & –––– n.2, 2021 WL 3883013, at *3–4 & *3 n.2.

). Further, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” The question, then, “is not whether the child would face a risk of grave harm should she permanently reside in [France], but rather whether she would face such a risk while courts in [France] make a custody determination.” The Court remanded so the district court can consider the possibility that alternative remedies exist and could permit returning ICJ to France for a custody determination. This court addressed in detail the relevant considerations that may affect that determination and what information might be needed, and we identified resources available to aid the district court, including the United States State Department’s Office of Children’s Issues. See Radu, ––– F.4th at –––– – ––––, 2021 WL 3883013, at *4–6. Importantly, part of the analysis on remand should include consideration of whether any suggested conditions for ameliorating a grave risk to ICJ would be enforceable or present “sufficient guarantees of performance” in France. Walsh v. Walsh, 221 F.3d 204, 219 (1st Cir. 2000)

 

In refusing to return ICJ to France, the district court noted that “[t]he COVID-19 pandemic provides an additional layer of concern for the child to travel back to France.” It appeared from this brief statement that the district court implicitly decided that sending ICJ back to France during the pandemic presented a “grave risk” of “expos[ing] the child to physical ... harm,” H.C., 13(b). That was error because there was simply no evidence in the record addressing whether COVID-19 would present a “grave risk” to ICJ’s health if she returned to France.

Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9th Cir.,2021) [Germany] [Grave risk of harm] [Petition granted] [Undertakings][Alternative remedy]

In Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9^th Cir.,2021) Persephone Johnson Shon left her husband in Germany and removed her two minor children to Arizona, where they resided for the last two years. The district court found the repatriation of the minor children to Germany posed a grave risk of psychological harm if in the father’s custody. To alleviate that risk, the district court ordered that the children be transferred back to Germany in Shon’s custody until a German court made a custody determination. The Ninth Circuit vacated and remanded for the district court to reasonably ensure compliance with its alternative remedy in Germany.

 

Bodgan Radu, a dual citizen of Romania and the United States, married Shon, a United States citizen, in 2011 in California. The couple has two children, O.S.R. born in 2013 in the United States and M.S.R. born in 2016 in Germany. The couple initially lived and worked in the United States. In December 2015, Radu traveled to Germany for a contractor job with the U.S. State Department. In March 2016, Shon moved to Germany along with O.S.R. and M.S.R. Shon, Radu, O.S.R., and M.S.R. lived together in Germany in an apartment leased from Inge Frick-Wilden. Shon was a “full-time mom” while living with Radu in Germany. Shon alleged that Radu abused her and the children after they moved to Germany. According to Shon, Radu constantly yelled and screamed at her about the messy apartment, put her down, and called her profanities. Shon did not trust Radu’s parenting because “when he would rage and get angry and mean ... [h]e couldn’t control himself.” Shon provided examples of Radu’s rage and anger. In June 2016, Shon unknowingly gave O.S.R. sour milk to drink. In response, Radu allegedly slammed his hand on the table, threatened Shon, and accused her of trying to poison their son. Janet Johnson, Shon’s mother, witnessed the sour-milk incident and testified that Radu “exploded all over [Shon] about being a terrible mother.” In October 2017, Shon tripped on a stool and spilled broccoli across the floor. Radu allegedly screamed, yelled, and called O.S.R. “bad names, calling him stupid for leaving the stool out” while O.S.R. was “cowering.” In March 2018, while Shon was handling bath time for the children, Radu allegedly flung the bathroom door open and slapped O.S.R. across the face. Finally, during a potty-training incident, while Shon was teaching M.S.R., Radu allegedly was “slamming against the door” and yelling for Shon to get M.S.R. to stop crying. Throughout these events, Shon never contacted law enforcement or sought a protective order or other legal remedy while living with Radu. However, she testified that she “was terrified of [Radu]” and “feared retaliation”—that is, he would hurt her or the children. In March 2019, after Radu allegedly sexually assaulted Shon, she decided that she was not going to stay with Radu. On June 10, 2019, Shon flew one way to Arizona with both O.S.R. and M.S.R. Since Shon’s departure, she and the children  resided in Arizona where she enrolled the children in school. Shon later filed for a divorce in Arizona. Shon obtained counseling from a licensed psychotherapist, approximately forty times. According to her, Shon exhibited symptoms of posttraumatic stress disorder.

 

On June 8, 2020, Radu filed a Verified Petition for Return of Children to Germany. The district court granted Radu’s Petition, ordering Shon to return O.S.R. and M.S.R. to Germany.. The district court carefully considered what type of remedy would safely allow the children to return to Germany. To “mitigate th[e] risk of psychological harm” to the children, the district court ordered an alternative remedy that “Shon shall retain temporary custody and care of the children until a custody determination can be made by a German court of competent jurisdiction.” The district court made several findings. First, the district court found and Shon conceded that “Shon’s removal of the children to the United States, and retention of them therein, was wrongful within the meaning of Article 3 of the Convention.” Second, the district court found that Article 12— “if less than one year has elapsed from the date of the wrongful removal or retention and the commencement of the proceedings” the children shall be returned—applied absent an exception. However, the district court found an Article 13(b) exception applied because “the children would be at grave risk of psychological harm if returned to Germany in the custody of Radu.” The district court found the “evidence presented at the evidentiary hearing supported a finding that Radu behaved in ways that could be characterized as psychologically or emotionally abusive.” At the hearing, Radu testified: “Probably in the heat of the passion, I may have called them [names] a couple of times .... So, I do regret it, looking in perspective right now. Maybe I should have used a different tone [of] voice or a different type of -- better approach in managing my children.” The district court found the “evidence insufficient to show that O.S.R. and M.S.R. would be at grave risk of physical harm if returned to Germany” and there was “no evidence of any sexual abuse of the children. Shon appealed and the district court stayed its order pending resolution of the appeal.

 

The Court pointed out that Article 13(b) gives courts discretion not to return the children if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The Convention and ICARA “dictate that custody must be determined by the home jurisdiction”—in this case, Germany—“unless the existence of a ‘grave risk’ truly renders that impossible.” If a court decides that the record supports an Article 13(b) defense, it “must proceed to consider whether that risk can be minimized or eliminated through some alternative remedy.”

 

The Court observed that its ,controlling precedent on alternative remedies is set forth in Gaudin. 415 F.3d 1028. “[B]efore denying the return of a child because of a grave risk of harm, a court must consider alternative remedies that would allow both the return of the children to their home country and their protection from harm.” The “question is simply whether any reasonable remedy can be forged that will permit the children to be returned to their home jurisdiction for a custody determination while avoiding the ‘grave risk of psychological harm’ that would result from living with” the petitioning parent. It noted a few guidelines for determining whether a grave risk of harm may be mitigated through an alternative remedy: (1) the district court must consider the “effect of any possible remedies in light of circumstances as they exist in the present” meaning “whether a grave risk of harm now exists, and if so, whether that risk can be minimized through an alternative remedy” and (2) the district court must not be influenced by or accord weight to any existing custody proceedings. If a district court makes an Article 13(b) grave-risk-of-harm finding—as the district court did below—the alternative remedy must significantly reduce, if not eliminate, the grave risk of harm to the children. See Saada v. Golan, 930 F.3d 533, 541 (2d Cir. 2019) To that end, district courts need to determine whether and how the alternative remedy is likely to be performed. An alternative remedy evaluation in the context of an Article 13(b) finding must consider whether the return remedy is more likely than not to reduce the short-term risk of harm accompanying repatriation, thus protecting the child’s psychological safety. A district court’s evidence-gathering cannot weigh matters or apply measures treading on the ultimate custody determination—e.g., whether the children are better off with one parent or another. Nor should the alternative remedy incorporate any long-term considerations or conditions that conflict with the Convention and ICARA.

 

The Court held that the  children’s interests, not the parents’ preference or inconvenience, are paramount to evaluating whether an alternative remedy mitigates the grave risk of harm. Appropriate considerations include the enforceability of the alternative remedy in the foreign jurisdiction based on the availability of legal measures to mitigate the child’s risk of harm, reliability of testimony indicating compliance with any court orders or legal measures, as well as history of the parent’s relationship, cooperation, and interpersonal communications. See Saada, 930 F.3d at 541–42. Any supportive reinforcements that may be necessary should reflect these considerations. Accordingly, the district court may solicit any promises, commitments, or other assurances to facilitate repatriation, which may involve directing parents to arrange for legal measures in the foreign jurisdiction—the children’s habitual residence. The district court may need to review foreign law to evaluate the reach of that foreign court’s authority in issuing legal measures or other relief in support of the alternative remedy.

 

Radu discussed German Code of Civil Procedure § 328 for its standards on enforcing foreign judgments. The Court of Appeals found that an analysis of Germany’s pertinent civil laws, and other aspects of its legal apparatus (processes, procedures, and so forth) may inform whether the district court should direct the parties to obtain protective measures abroad or confirm whether domestic orders suffice. But given its limited authority abroad and potential comity concerns, the district court should not make the order of return with an alternative remedy contingent on the entry of an order by the children’s country of habitual residence. The district court may also solicit supplementary evidence, and in particular testimony, from the parents on these or related issues to determine the nature of supportive reinforcements. In rare circumstances, oral commitments from one parent to obey court orders may be enough. Voluntary commitments or agreements—those without third-party intervention—are acceptable depending on the parties’ pattern of behavior and the severity of risk of harm to the children (which must be low).

 

The Court of Appeals held that the  district court should also, if needed, contact the United States Department of State Office of Children’s Issues to coordinate legal safeguards or otherwise procure assistance from the foreign jurisdiction to address or resolve any issues animating the Article 13(b) grave risk of harm finding. Citing Convention Art. 7 (listing measures available through Central Authorities). Logistical arrangements such as financing the return of the children or securing housing or temporary placement should not undermine the alternative remedy. The options are extensive, but this framework provides the guideposts for navigating the provisions of the Convention and ICARA and creating a reasonable remedy for a short-term period. The district court may also consider activity in the children’s habitual residence, including criminal proceedings, if it could significantly interfere with implementing the supportive reinforcements and otherwise reduce the likelihood of performance. Supportive reinforcements generally should be limited in scope and thus not extremely burdensome to either party to avoid litigation over the merits of custody issues. Resolving the parameters of safe repatriation of the children is paramount.

 

On appeal, Radu did not properly challenge the district court’s finding that his children would face a grave risk of psychological harm if returned to Germany. The focus of the inquiry here was  the alternative remedy based on the district court’s findings. The Ninth Circuit vacated and remanded the alternative remedy order since the record did not adequately support whether the order of the children’s return in Shon’s custody had a high likelihood of performance through supportive reinforcements.

 

Shon argued that the alternative remedy “is overbroad and exceeds the scope of the lower court’s authority” because it required her to move to Germany, “orders the children to remain” in her custody, and “implicitly requires [her] to file a custody case in Germany and the German court to act on it.” The Court held that the Convention presumes relocation of the children to facilitate repatriation. If relocation of the abducting parent (or a responsible family member) can help alleviate any grave risk of harm from repatriation of the kids, the district court retains that discretion. The Court held that because Shon wrongfully removed the children, as she conceded, the district court in no way exceeded its authority to mandate the children’s return to Germany accompanied by Shon. But in the context of an Article 13(b) finding, the district court needed a fuller record to have sufficient guarantees that the alternative remedy will be enforced in Germany. There are multiple resources the district court may engage, including assistance via the U.S. Department of State, to fulfill the Convention’s presumptive goal of the speedy return of the children. That Germany is a treaty partner with the United States already informs baseline expectations. It must respect that another treaty partner—a contracting State to the Convention—is well-equipped with the proper legal mechanisms and internal processes and procedures to support alternative remedies and otherwise fulfill treaty obligations. An Article 13(b) grave risk of psychological harm finding does not automatically terminate further investigation into a reasonable alternative remedy.

Recent Hague Convention District Court Cases - Nobrega v Colmenares, 2021 WL 3518154 ( M.D. Florida, 2021) [Venezuela] [Petition granted][Grave risk of harm not established]

 

Nobrega v Colmenares, 2021 WL 3518154 ( M.D. Florida, 2021)

[Venezuela] [Petition granted][Grave risk of harm not established]

Grano v Martin, 2021 WL 3500164 (S.D. New York, 2021) [Spain] [Petition granted] [Necessary Costs & Expenses] [Award reduced by 85% due to inability to pay]

 

In Grano v Martin, 2021 WL 3500164 (S.D. New York, 2021) the parties filed objections to the  Report and Recommendation (“R&R”) of  Magistrate Judge Davison recommending that Petitioner’s motion for attorney’s fees and costs incurred in connection with prosecuting this case be granted in part and denied in part. Petitioner requested a total of $467,944.46 ($359,799.05 in fees and $108,145.41 in costs). The District Court adopted the R&R in part and awarded Petitioner fees and costs in the amount of $34,296.19.

 

        The successful Petitioner filed a motion for attorney’s fees and costs.  Respondent argued that an award would be inappropriate, and that the motion should be denied, because of the abuse she suffered from Petitioner and her indigent financial condition. In the alternative, Respondent argued that Petitioner’s requested amount should be reduced because Petitioner’s counsel’s hours were not necessary or reasonable, and the records were insufficient to evaluate the necessity of the work performed.

 

The Court observed that in reviewing a magistrate judge’s report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A party may object to the magistrate judge’s report and recommendation, but the objections must be “specific,” “written,” and submitted “[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(C). A district court must review de novo those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). “The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see Marji v. Rock, No. 09-CV-2420, 2011 WL 4888829, at *1 (S.D.N.Y. Oct. 13, 2011). The district court may adopt those portions of a report and recommendation to which no objections have been made, provided no clear error is apparent from the face of the record. See White v. Fischer, No. 04-CV-5358, 2008 WL 4210478, at *1 (S.D.N.Y. Sept. 12, 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); Fed. R. Civ. P. 72 advisory committee note (b).

 

 

The court noted that the reasonable hourly rate is the “prevailing market rate, i.e., the rate prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Farbotko v. Clinton County, 433 F.3d 204, 208 (2d Cir. 2005) (cleaned up). Mr. Abbott billed at a rate of $675 when representing Petitioner. Mr. Morley billed at a rate of $600 when representing Petitioner. Mr. Saltzman billed at a rate of $400 when representing Petitioner. The Court found  a  rate of $425 to be reasonable for Mr. Morley. Because Mr. Abbott was not as well-credentialed as Mr. Morley in Hague Convention matters it found a rate of $400 is reasonable and appropriate for him. The court found  a rate of $375, consistent with Mr. Saltzman’s rate of $375, was  reasonable for two other attorneys. As to the paralegals,  $129 was  reasonable.

 

The Court found that “retaining multiple counsel in a case as complex as this one was ... entirely reasonable.”  The Court agreed with Judge Davison’s recommendation that the Court disallow compensation for fees associated with collateral state proceedings and reduce all unclear or comingled time entries by 50%, arguing that those hours were necessarily incurred to secure the return of the child. It found Petitioner’s necessary fees and costs are as follows: $183,686.42 (fees) + $6,692.11 (costs paid by counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25 in fees and costs.

 

Respondent objected to the R&R on the basis that Petitioner’s coercive control and psychological abuse towards her rendered an award of fees and costs “clearly inappropriate” under ICARA, 22 U.S.C. § 9007(b)(3), relying on Souratgar, 818 F.3d at 79, Radu v. Shon, No. 20-CV-246, 2021 WL 1056393, at *4 (D. Ariz. Mar. 19, 2021), Guaragno, 2011 WL 108946, at *2, and Silverman v. Silverman, No. 00-CV-2274, 2004 WL 2066778 (D. Minn. Aug. 26, 2004).

 

The Court noted that Second Circuit has held that an award of fees and costs is clearly inappropriate when the successful petitioner bears responsibility for “the circumstances giving rise to the petition.” Souratgar, 818 F.3d at 79-80. The Souratgar petitioner bore such responsibility because (1) he committed acts of physical violence against the respondent that did not stop after the respondent had left the family home, (2) the respondent’s departure from the country was related to the petitioner’s violence, and (3) there were no countervailing factors that favored the petitioner. Likewise, in both Guaragno and Silverman, the court found that the petitioner’s physical and mental abuse of respondent was an appropriate consideration in determining if the fee award was inappropriate. See Guaragno, 2011 WL 108946, at *3; Silverman, 2004 WL 2066778, at *4. In Radu, the abuse was almost entirely psychological, as it was here, but the abuse was only one of several reasons for concluding that a fee award was clearly inappropriate. See 2021 WL 1056393, at *3-4 (no fee awarded because petitioner prevailed only in part, award would prevent respondent from caring for children, petitioner provided no support for children and petitioner was psychologically abusive). The “unclean hands” exception to a fee award is almost always applied to acts of physical violence, sometimes coupled with acts of emotional abuse, and Respondent had not provided authority for the proposition that an award can be clearly inappropriate based on emotional abuse alone. See Hart v. Anderson, No. 19-CV-2601, 2021 WL 2826774, at *6 (D. Md. July 7, 2021) (finding petitioner’s “repeated pattern of alcohol abuse and violence” rendered a fee award inappropriate); see also Jimenéz Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 428357, at *2 (E.D. Mich. Jan. 28, 2020) (finding an award for fees and costs inappropriate where petitioner had physically abused respondent and their child); Asumadu v. Baffoe, No. 18-CV-1418, 2019 WL 1531793, at *1 (D. Ariz. Apr. 9, 2019) (finding same when petitioner physically abused the respondent more than once). Souratgar referred repeatedly to the petitioner’s “violence,” as opposed to “abuse,” which suggests the Court meant physical, not mental, abuse. See 818 F.3d at 79-82. The court found that this case, which was almost entirely about psychological as opposed to physical abuse, and in which both sides were less than candid, did not rise to the level of those cases justifying complete denial of an award. Further, an award of at least some fees serves the statutory purpose of deterring future child abductions. In re JR, No. 16-CV-3863, 2017 WL 74739, at *4 (S.D.N.Y. Jan. 5, 2017). Although the coercive control Respondent experienced was no doubt serious domestic abuse, the court agreed with Judge Davison that Respondent had not met her burden to show that a fee award to Petitioner would be clearly inappropriate.

 

 

The Court observed that “[A] respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar, 818 F.3d at 81; see In re J.R., 2017 WL 74739, at *4. Courts in the Second Circuit have been “mindful that an expenses award that is greater than a respondent’s total assets requires, at the very least[,] a reasoned explanation.” Sanguineti, 2016 WL 1466552, at *9 (cleaned up); accord Lukic v. Elezovic, No. 20-CV-3110, 2021 WL 1904258, at *2 (E.D.N.Y. May 12, 2021). When a respondent demonstrates financial hardship, courts have reduced the fee award proportionately. See, e.g., Whallon v. Lyon, 356 F.3d 138, 141 (1st Cir. 2004) (affirming reduction in fees and expenses by 65%); Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir. 1995) (reducing fee award by around 46% after considering respondent’s straitened financial circumstances); In re J.R., 2017 WL 74739, at *4 (reducing award by two-thirds after considering respondent’s inability to pay); Willing v. Purtill, 07-CV-1618, 2008 WL 299073, at *1 (D. Or. Jan. 31, 2008) (reducing award by 15% due to respondent’s financial circumstances, including respondent’s unemployment). An award should be reduced with ICARA’s purpose in mind, meaning the award should still deter future violations of the Convention. See In re J.R., 2017 WL 74739, at *4; Willing, 2008 WL 299073, at *1.

 

Here, Judge Davison reduced the award by 85% in light of Respondent’s demonstrated financial hardships. Respondent demonstrated that she was under financial strain: she had not been able to secure employment in Spain as she was not a legal resident there, and she owed her attorneys over $170,000. She represented that she had no savings, assets, or property. Her most recent bank statement provided to the Court represented that she had a savings account with a balance of $395.10, and a checking account with a balance of $3,255.36. Her net income in 2019 was approximately $27,551. As such, Respondent had sufficiently demonstrated that a substantial fee award for Petitioner would greatly strain her finances, and Respondent clearly would not be able to pay an unreduced award of fees and expenses totaling $228,641.25. While a complete reduction in fees and costs was not necessary –she had a graduate degree from a Spanish university and should at some point be able to get permission to work, the court agreed  with Judge Davison’s reduction of the award by 85%.

 

           The revised lodestar amount was as follows: ($183,686.42 (fees) + $6,692.11 (costs paid by Petitioner’s counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25, reduced by 85% = $34,296.19.

 

Recent Hague Convention District Court Cases - Wan v DeBolt, 2021 WL 3510232, (United States District Court, C.D. Illinois, 2021) [Hong Kong][Petition granted][Necessary Costs] [Petitioner sought $518,307 in attorneys’ fees and $155,710.07 in costs; Court awarded Petitioner $310,933.50 in attorneys’ fees and $134,355.95 in costs; $650 hourly rate of Feinberg reduced to $425 an hour]

 

Wan v DeBolt, 2021 WL 3510232, (United States District Court, C.D. Illinois, 2021)

[Hong Kong][Petition granted][Necessary Costs] [Petitioner sought $518,307 in attorneys’ fees and $155,710.07 in costs; Court awarded Petitioner $310,933.50 in attorneys’ fees and $134,355.95 in costs; $650 hourly rate of Feinberg reduced to $425 an hour]

Recent Hague Convention District Court Cases - Luis Alfonso V.H. v. Banessa Cristina A.Z., 512 F.Supp.3d 633 (2021) ( W.D. Virginia, 2021) [ Honduras] Petition denied] [well-settled exception] .

 

Luis Alfonso V.H. v. Banessa Cristina A.Z., 512 F.Supp.3d 633 (2021) ( W.D. Virginia, 2021)

[ Honduras] Petition denied] [well-settled exception] .

 

Aluker v Yan, --- Fed.Appx. ----, 2021 WL 3417968 (4th Cir. 2021)[Portugal] [Habitual Residence] [Rights of Custody][Petition denied]

 

           In Aluker  v Yan, --- Fed.Appx. ----, 2021 WL 3417968 (4th Cir. 2021) the Fourth Circuit affirmed the holding of the  district court which concluded that Serge Aluker, the father of two minor children, did not have custody rights recognized by the Hague Convention and, therefore, failed to prove that the children’s mother, Simin Yan, wrongfully removed the children from Portugal to the United States.

 

Aluker was a United States citizen, a Russian citizen, and a legal resident of Portugal. Yan was a United States citizen who presently resided in Virginia. In 2006, Aluker and Yan were married in China, and they moved to the United States in 2008. While living in the United States, Aluker and Yan had two children. The family moved to Spain in 2015, and to Portugal in 2017. Shortly after their move to Portugal, Aluker and Yan separated. Initially, they shared parental responsibilities. However, in November 2018, Aluker and Yan executed a Separation and Property Settlement Agreement (PSA), which stated in relevant part: The parties … agree as follows: ... [Yan] shall have sole legal and primary physical custody of [the two children]. [Aluker] shall be entitled liberal and reasonable visitation with the children. ... The parties acknowledge that this Agreement is a full and final settlement that contains the entire understanding of the parties, and there are no representations, warranties, covenants, or undertakings other than those expressly set forth herein.... This Agreement shall be construed in accordance with the law of the Commonwealth of Virginia. Aluker also agreed in the PSA that Yan would have sole ownership of their house in Falls Church, Virginia. The parties further stipulated therein that each had “the right to reside at any place ... without the consent of the other party.” The PSA was not incorporated into any court order. Several months after the PSA was executed, Aluker initiated proceedings in May 2019 in a Portuguese court seeking an adjudication of child custody rights. The Portuguese court had not taken any action when, on October 3, 2019, Yan sent Aluker an e-mail stating that she was taking the children to the United States to live. Yan and the children traveled to the United States on the same day. Almost a year later, in September 2020, Aluker filed a petition in the district court under the Hague Convention. In his “verified petition of return of children to Portugal,” Aluker contended that the children were wrongfully removed from Portugal. On the day of a scheduled bench trial, Yan requested a judgment on partial findings under Federal Rule of Civil Procedure 52(c). The court conducted a brief evidentiary hearing, allowed Aluker to file a response memorandum, and later granted Yan’s motion. The court concluded that the PSA was a valid agreement, which established that Yan had legal custody of the children at the time she removed the children from Portugal. The court held that Yan’s status as legal custodian of the children defeated Aluker’s claim of wrongful removal.

 

The Fourth Circuit pointed out that in  cases involving claims brought under the Hague Convention, it review sa district court’s findings of fact for clear error and its conclusions of law de novo. Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). It noted that Article 3 of the Hague Convention provides: The removal or the retention of a child is to be considered wrongful where ... it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention ... The rights of custody mentioned ... above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Hague Convention, art. 3. To establish a claim of wrongful removal under the Hague Convention, a petitioner must show that: (1) the children habitually resided in “the petitioner’s country of residence at the time of removal;” (2) the removal breached “the petitioner’s custody rights under the law of his home state;” and (3) the petitioner was actually exercising his custody rights at the time of removal. Bader, 484 F.3d at 668; see also Hague Convention, art. 3.

 

The Fourth Circuit held that irrespective whether the children were habitual residents of Portugal at the time of their removal, Aluker’s wrongful removal claim failed because he did not establish the other two requirements for proving his claim, namely, that when the children were taken to the United States, he had custody rights under Portuguese law and he was actually exercising those rights. See Bader, 484 F.3d at 668; Hague Convention, art. 3. At the time the children were removed from Portugal, no court had awarded custody rights to Aluker, and the parties had not entered into any written agreement providing Aluker with such rights. When the children were removed from Portugal, Yan had sole legal custody of the children, as agreed by the parties in the PSA.

 

Portuguese choice of law rules required that it apply United States law in this case. Article 57 of the Portuguese Civil Code directs that “[r]elationships between parents and children are regulated by the common national law of the parents, and in the lack thereof, by the law of their common habitual residence; if the parents habitually reside in different countries, the law of the child’s country of origin shall apply.” In applying Portugal’s choice of law provision to this case, the “common national law of the parents” is the United States, because both Aluker and Yan are United States citizens. Accordingly, United States law, here, the law of Virginia, applies to resolve this matter. It found that Aluker has failed to prove under Virginia law that he had any custody rights at the time the children were removed from Portugal. The PSA unambiguously provided that Yan “shall have sole legal and primary physical custody” of the two children. Although Virginia courts have the power to modify any private custody agreement that parents execute, parents still may enter into such custody agreements and courts may rely on them in making custody determinations. See Shoup v. Shoup, 556 S.E.2d 783, 787-89 (Va. Ct. App. 2001); Va. Code Ann. § 20-109.1 At the time the children were removed from Portugal, no court had altered the terms of the PSA or had adjudicated the issue of the children’s custody.

 

The terms of the Hague Convention also supported the district court’s conclusion that the PSA was a valid agreement addressing custody rights. Under the Hague Convention, custody rights can be determined by “an agreement having legal effect under the law of the [state of the child’s habitual residence].” Hague Convention, art. 3. An agreement having “legal effect” under the Hague Convention can include “simple private transactions between the parties concerning the custody of their children.” Elisa Pérez-Vera, Explanatory Report on the 1980 HCCH Child Abduction Convention, in 3 Actes et Documents de la Quatorziéme Session – Child Abduction, at 426, 447, ¶ 70 (1980). It concluded that the district court did not err in holding that the PSA had “legal effect” within the meaning of the Hague Convention, and that Aluker failed to prove his claim of wrongful removal.