Recent Hague Convention District Court Cases - Sain on behalf of VRS v Sain, 548 F.Supp.3d 1181 (M.D. Florida,2021)

Sain on behalf of VRS v Sain, 548 F.Supp.3d 1181 (M.D. Florida,2021)
[China][Habitual residence][Petition denied][China, not United Kingdom (UK), was children’s habitual residence and thus father did not wrongfully remove children from United Kingdom; children lived in China for nearly entire life, father took children on vacation with intent to return to China but their return was blocked by COVID-19 pandemic restrictions, and their nine-month stay in UK after their return to China was blocked did not transform UK into children’s habitual residence, as children never acclimatized to UK and never attended school in UK, and father’s actions evinced clear intent to return to China with children once possible.]

Recent Hague Convention District Court Cases - Tchenguiz v Bird, 2022 WL 519174 (D. Montana, 2022)

 Tchenguiz v Bird, 2022 WL 519174 (D. Montana, 2022) 

Tchenguiz’s motion to strike was granted  to the extent that Bird was prohibited from raising the “grave risk of harm” defense or introducing evidence or witnesses related to this defense at the hearing based in part on the lack of a mental evaluation and  insufficient discovery responses from Bird. The court also recognized England as the child’s country of habitual residence. Motion denied insofar as Bird was permitted to  present a “mature child” defense.

Kenny v Davis, Not Reported in Fed. Rptr., 2022 WL 501625 (9th Circuit, 2022) [Ireland][Habitual residence][Petition denied]

          In Kenny v Davis, Not Reported in Fed. Rptr., 2022 WL 501625 (9^th Circuit, 2022) Petitioner-Appellant Patrick Daniel Kenny appealed from a district court order denying his petition to have his toddler son repatriated from the United States to the Republic of Ireland for custody proceedings against Respondent-Appellee Grace-Anne Davis.

     The Ninth Circuit reviewed the district court’s legal rulings de novo and its factual findings as to the habitual residence of the child for clear error, Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020), and affirmed.

     Kenny argued that the district court clearly erred in finding that Alaska was his son’s habitual residence immediately before the July 9, 2020, wrongful retention date.  He cited an out-of-circuit opinion in suggesting the relevant inquiry is “whether the parents or guardians ... shared an intent to change the child’s habitual residence. His  reasoning was inconsistent with controlling Supreme Court precedent. It is true that, 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” in identification of a child’s habitual residence. Monasky, 140 S. Ct. at 727. The Supreme Court has, however, held that “[t]here are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement for infants. By contrast, “a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier [of fact] to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ And this factual inquiry is guided by common sense. Kenny’s narrow focus on mutual intent misstates and unduly restricts the law. Applying these principles, the district court’s factual finding that “the place of habitual residence of the child immediately prior to July 9, 2020, was Alaska” is not clearly erroneous. Kenny’s father sold the Irish business for which Kenny was working. After Kenny, Davis, and their son traveled to Alaska, Davis began working at her mother’s business. Kenny applied for Legal Permanent Resident (LPR) status and work authorization. Davis and her mother testified to the district court that Kenny had explored working as a real estate agent in Alaska. And Davis researched Alaskan apartments where she could live with Kenny and their son after Kenny got into a fight with Davis’s brother and was allegedly told to leave his accommodations at the home of Davis’s parents. When aggregated, these facts can properly be construed as indicating that Kenny and Davis made their home in Alaska, so the district court did not clearly err in making its factual finding that Alaska was the child’s habitual residence immediately before the July 9, 2020, wrongful retention date. See Monasky, 140 S. Ct. at 729; Brnovich v. Dem. Nat’l Comm., 141 S. Ct. 2321, 2348–49 (2021) (“If the district court’s view of the evidence is plausible in light of the entire record, an appellate court may not reverse even if it is convinced that it would have weighed the evidence differently in the first instance.” (cleaned up)).

         Kenny urged the panel to reach a contrary conclusion on the grounds that the district court improperly disregarded evidence and testimony allegedly establishing that Kenny’s son was a habitual resident of Ireland at all relevant times. This discussion was inapposite. See Brnovich, 141 S. Ct. at 2349 (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”  The district court did not clearly err in finding that Kenny’s son was a habitual resident of Alaska immediately prior to the wrongful retention date. See Monasky, 140 S. Ct. at 723, 730.

 

Recent Hague Convention District Court Cases - Romanov v Soto, 2022 WL 356205 (M.D. Florida, 2022).

Romanov v Soto, 2022 WL 356205 (M.D. Florida, 2022). 

[Canada] [Petition granted] [ Father’s failure to assist with the renewal of the Children’s passports is not acquiescence] [Despite Mature Child exception as to one child, both Children ordered to be returned ]

 

Nowlan v Nowlan, Not Reported in Fed. Rptr., 2022 WL 34141 (4th Cir, 2022) [Canada] [Habitual Residence] [Petition granted]

 

In Nowlan v Nowlan, Not Reported in Fed. Rptr., 2022 WL 34141 (4th Cir, 2022) Nina Lynn Nowlan appealed the district court’s order granting Bryce Gerald Randall Nowlan’s Petition for Return of the Child under the Hague Convention on the Civil Aspects of International Child Abduction. The court determined that the Nowlans’ child, AEN, was a habitual resident of Canada when Nina took AEN to Virginia. The court further determined that Nina did not show by clear and convincing evidence that AEN would be in grave risk of harm if AEN was returned to Canada to live with Bryce. The Fourth Circuit affirmed in an unpublished opinion. It noted that a  child’s habitual residence is a mixed question of law and fact. Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020). The first issue is whether the district court identified “the governing totality-of-the-circumstances standard.”  The second issue involves answering a factual question: “Was the child at home in the particular country at issue.” Its  review of the district court’s decision was for clear error. It concluded  that the district court applied the correct legal standard and did not clearly err in determining that AEN’s habitual residence was Canada when Nina took AEN to Virginia. the district court did not err in determining that Nina did not prove by clear and convincing evidence that AEN would be in grave risk of harm if the child was returned to Canada. See Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (stating burden of proof). It affirmed  for the reasons stated by the district court. See Nowlan v. Nowlan, No. 5:20-cv-00102-TTC (W.D. Va. June 10, 2021). 

Recent Hague Convention District Court Cases - Radu v Shon, 2021 WL 6197905 ( D. Arizona, 2021)

 [Germany] [Grave risk of harm] [ameliorative measures] [Petition granted]

In Radu v Shon, 2021 WL 6197905 ( D. Arizona, 2021) on June 8, 2020, Petitioner Bogdan Radu filed a Petition for Return of Children to Germany. The Court held an evidentiary and issued an Order granting the Petition and ordering the return of minor children O.S.R. and M.S.R. to Germany. The Court found, under Article 13(b) of the Convention, that the children would be at grave risk of psychological harm if returned to Germany in the custody of Radu, but it further found that such harm could be mitigated by ordering that the children be returned in the temporary custody of Respondent Persephone Johnson Shon. On August 31, 2021, the Ninth Circuit held that the Order “is permissible under the Convention,” but it vacated and remanded for the district Court “to reasonably ensure compliance with its alternative remedy in Germany.” Radu v. Shon, 11 F.4th 1080, 1084 (9th Cir. 2021). The Court held a further evidentiary hearing and  also contacted the United States Department of State for assistance. The testimony at the post-remand evidentiary hearing, as well as the information obtained by the Court from the German Central Authority, established that, under German law, Shon and Radu currently had joint custody rights, and a German court would be able to make a custody determination within six months of the return of O.S.R. and M.S.R., with the court having discretion to make such a determination earlier, and with custody matters receiving priority for expedited processing. At a minimum, Shon was able to return to Germany for three months as a tourist. Furthermore, it was likely Shon’s parents would be willing to travel to Germany as tourists to assist as necessary with the caregiving of O.S.R. and M.S.R., given their history of consistently providing as-needed support to Shon and the children. Accordingly, Shon, followed by her parents if necessary, would be capable of staying in Germany until a custody determination could be made by a German court of competent jurisdiction. Even if a German court declines to make a custody determination until O.S.R. and M.S.R. have resided in Germany for six months, and even if Shon’s parents decline to travel to Germany, Shon’s ability to stay with the children in Germany with joint custody rights for the first three months would help the children transition back to German society and to the care of their father. The Court found  that ordering Shon to return with O.S.R. and M.S.R. to Germany where she and Radu had joint custody rights was sufficient to ameliorative any risk of psychological harm to the children. The petition was granted.

Recent Hague Convention District Court Cases - Pawananun v. Pettit, 2022 WL 99721 (N.D. Ohio, 2022)

 Pawananun v. Pettit, 2022 WL 99721 (N.D. Ohio, 2022) 

[Thailand] [Attorneys fees and expenses of $63,680 awarded as appropriate and necessary] [Good faith defense rejected.  Respondent did not act in good faith in removing the children] 

Recent Hague Convention District Court Cases - Garcia v. Ramsis, 2022 WL 287031 ( E.D. Texas, 2022)

 Garcia v. Ramsis, 2022 WL 287031 ( E.D. Texas, 2022) 

[Spain] [Petition granted] [Habitual residence][Grave risk of harm not established by sustained spousal abuse not connected to the child]

Recent Hague Convention District Court Cases Dawson v Dylla, 534 F.Supp.3d 1360 ( D. Colorado, 2021)

 

Dawson v Dylla, 534 F.Supp.3d 1360 ( D. Colorado, 2021)
Petition seeking enforcement of foreign parenting order pursuant ICARA denied where no abduction or wrongful removal of child occurred, and Convention and ICARA did not apply.

Velozny v Velozny, 2021 WL 5567265 (2d Cir.,2021) [Israel][Federal & State Judicial Remedies][Summary judgment][Grave Risk of harm] [Petition granted]

In Velozny v Velozny, 2021 WL 5567265 (2d Cir.,2021) the Second Circuit affirmed a judgment of the United States District Court for the Southern District of New York (Daniels, J.), granting Petitioner-Appellee Nir Velozny’s motion for summary judgment and petition to return the children R.V., N.V., and E.V. to Israel .

On appeal Ms. Velozny challenged the district court’s order and judgment to the extent that it declined to apply the grave risk of harm exception, as well as the district court’s discretionary decision declining to apply the mature child exception. Ms. Velozny also challenged the district court’s use of expedited proceedings and its decision limiting Ms. Velozny’s ability to submit certain evidence.

The Second Circuit held that the district court did not err in holding expedited proceedings or in declining to hear testimony from certain witnesses or interview the elder two children in camera. Its decision to hear two days of live testimony to supplement the evidence filed along with the summary judgment papers was in keeping with the Hague Convention’s explicit emphasis on expeditious judicial resolution. 

The Court held that the district court did not err when declined to interview R.V. and N.V. in camera, because both parties filed affidavits from their experts based on extensive interviews with both children, among other evidence. As the district court explained, “I am hesitant to put the children through [in camera interviews] after having gone through hours and hours with the psychologist. ... I don’t see that there is any significant additional evidence that would be determinative of this case given the complete examination done by the experts and their full reports on these issues.” In addition, the district court properly declined to hear additional live testimony as duplicative or immaterial to the disposition of the case.

The Second Circuit held that district court also did not err in its analysis of the grave risk of harm defense. This exception must be applied narrowly to avoid “frustrat[ing] a paramount purpose of [the Hague Convention]—namely, to ‘preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.’ ” Blondin II, 189 F.3d at 246 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993)). The district court properly found that the grave risk exception did not apply based on the undisputed facts. As the district court pointed out, “as late as August 26, 2019, approximately one month before her removal of the children, [Ms. Velozny] was willing to let her children travel unaccompanied to Israel twice a year and be alone with their father.” In addition, the district court properly found that the undisputed facts with respect to the alleged risks from exposure to spousal abuse, physical or emotional abuse of the children, and petitioner’s drug use did not warrant application of the grave risk exception. The district court also considered potential ameliorative measures, noting that (1) Ms. Velozny “has not established that an Israeli court could not provide adequate protection for the children during any divorce or custody proceedings,” and (2) “the effect of this decision is only to order the return of the children to Israel,”. The district court expressly noted the undisputed fact that “[t]he children and [Ms. Velozny] are not required ... to live with [Mr. Velozny] again, and the parties are free to devise their own living and custody arrangements or seek the intervention of an Israeli court.” Thus, the district court did not err in finding that the grave risk of harm exception did not apply.

The Court also found that district court did not err in declining to apply the mature child exception. the district court noted that the parties agreed that E.V., the youngest, was too young to have her views considered. Then, after discussing R.V.’s and N.V.’s opinions on returning to Israel, the district court found that R.V. only preferred to stay in the United States (but did not object to returning to Israel) and N.V.’s statements may have constituted an objection to returning to Israel. The district court then stated that, even assuming both R.V. and N.V. were mature enough to have their views considered and that N.V.’s view constituted an objection within the meaning of Article 13, it would still decline to apply the mature child exception in order to keep all three children together. Such a decision fell well within the district court’s discretion in Hague Convention proceedings. See Blondin IV, 238 F.3d at 166.

Dawson v Dawson, 2021 WL 5232251 (10th Circuit, 2021) [United Kingdom][Federal & State Judicial Remedies][Enforcement][Younger Abstention]

 

In Dawson v Dawson, 2021 WL 5232251 (10^th Circuit, 2021)  Petitioner Clive Edward Dawson appealed from the district court’s order dismissing with prejudice his petition for relief under the Hague Convention. The 10^th Circuit vacated the judgment of the district court and remanded with directions to dismiss Dawson’s petition without prejudice.

 

Dawson was a citizen of the United Kingdom. Respondent Dylla was a citizen of the United States. Dawson and Dylla met in the United States and were married in New Mexico on September 18, 2011. At the time of their marriage, Dawson was working as an information technology consultant and Dylla was an attorney. At some point after they were married, Dawson and Dylla moved to the United Kingdom. The couple’s daughter, R., was born in the United Kingdom on April 12, 2013. The couple separated on July 10, 2015. Following the separation, Dylla informed Dawson that she was interested in relocating to the United States with R. Dawson opposed the idea of R. living in the United States with Dylla. On January 11, 2016, a family court in Manchester, England issued a custody order that determined, in pertinent part, that it was in R.’s best interests to live with Dylla in the United States. The custody order also, however, granted Dawson parenting time on at least three occasions per year, with two of those occasions to occur in the United States and one to occur in the United Kingdom. . The two annual periods of parenting time in the United States were to each be between three and four weeks in duration, and the single period of parenting time in the United Kingdom was to be for a minimum of two weeks.  In addition, the Manchester family court ordered that Dylla and Dawson would alternate having custody of R. at Christmas time, and it directed Dylla to make R. available for “Google Hangouts” with Dawson for five to fifteen minutes every other day (and vice-versa during the periods when R. was in Dawson’s custody). Lastly, the Manchester family court directed Dylla to register the custody order in Colorado. In early 2016, Dawson registered the Manchester family court’s custody order in Elbert County, Colorado, by filing a petition in the District Court for Elbert County, Colorado (the state court) pursuant to Colo. Rev. Stat. § 14–13–305.

  

On January 28, 2021, Dawson initiated these federal proceedings by filing a pro se petition against Dylla seeking expedited enforcement of the Manchester family court’s January 11, 2016 custody order pursuant to the Hague Convention and ICARA.  On March 23, 2021, the district court conducted a telephonic status conference and heard arguments from Dawson and Dylla. On April 19, 2021, the district court issued an order dismissing Dawson’s petition with prejudice. The order concluded that the Hague Convention and ICARA were inapplicable because “[t]he evidence establish[ed] that there ha[d] been no abduction or wrongful removal of the parties’ child,” and, instead, that “Dylla brought R[.] to the U.S. in 2016 with the express permission and order of the family court in Manchester, England,” and “[t]he child’s habitual residence has been in the U.S. and in particular in Colorado, since that time.” Id. at 145. The order further stated: Final judgment was entered in the case on April 19, 2021. After filing an unsuccessful motion for new trial, Dawson appealed to this court.

 

Dawson argued in his appeal that the district court erred in dismissing his action. Dawson did not claim that R. was internationally abducted or wrongfully retained by Dylla, nor did he claim that R. should be returned to the United Kingdom for custody proceedings. Dawson sought to enforce the rights of custody and access that were granted to him by the Manchester family court’s January 11, 2016 custody order. There is a circuit split regarding whether ICARA authorizes federal courts to entertain the type of access claim that Dawson sought to assert here, i.e., a claim seeking to secure the exercise of visitation rights that were previously afforded to him by the Manchester family court. See Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013) (concluding that ICARA expressly authorizes federal courts to hear access claims); Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006) (concluding that federal courts are not authorized under ICARA to hear access claims).

 

It was unnecessary to resolve that issue in this appeal because even assuming that ICARA authorizes federal courts to hear access claims, the district court in this case should have abstained from exercising jurisdiction over Dawson’s access claims pursuant to Younger v. Harris, 401 U.S. 37 (1971). Younger abstention applies when “(1) there is an ongoing criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests.” Weitzel v. Div. of Occupational & Prof’l Licensing of Dep’t of Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (quotation marks omitted). If these three requirements are met and no exceptions apply, a federal court must abstain from hearing the case. The record on appeal in this case indicates that all three requirements were met. The judgment of the district court was vacated and the matter remanded with directions to dismiss the petition without prejudice.

 

Matter of E.Z., and S.Z. v Zarak, 2021 WL 5106637 ( S.D. New York, 2021)[Iceland][Habitual residence][Petition granted]

 

In Matter of  E.Z., and S.Z. v Zarak, 2021 WL 5106637 ( S.D. New York, 2021) the district court granted the Petition finding that the habitual residence of the two children was Iceland.

Petitioner Arnaldur Schram, a citizen of Iceland, and Respondent Tania Zarak, a citizen of Mexico, met in the summer of 2013 in New York City. They were married about two years later. The couple had two children in New York. Throughout their marriage, the couple was fairly transient, frequently relocating their home and their children. During the six years before the Petition was filed in this matter, the couple moved five times and lived for extended periods of time in four different cities. E.Z., born in 2014, lived for about four years in three different residences in New York where she was born, in Los Angeles for a year, then another eight months in New York, in Mexico for four months, and lastly, Iceland for about a year, until removed to New York by Respondent in July 2021. S.Z., born in 2019, lived for two months in Los Angeles where he was born, eight months in New York, four months in Mexico, and about a year in Iceland until he was likewise removed to New York by Respondent in July 2021. The family arrived in Iceland on August 1, 2020.  E.Z. had already been an Icelandic citizen from 2015, shortly after his birth, and the parties obtained Icelandic citizenship for R.Z. and S.Z. when they arrived in August 2020. Petitioner’s parents, two brothers, their children, and his extended family live in Iceland. While living in Iceland, Respondent declared herself a nonresident of New York for tax purposes. Respondent stopped making maintenance payments for their New York apartment  during her time in Iceland. The couple also took out a long-term car rental at Hertz and, in March 2021, purchased a car.  In the spring and summer of 2021, the couple talked about plans to travel to Mexico for a family visit in connection with a reunion of Respondent’s family long scheduled for June 2021 in Mexico. Respondent’s family held a family reunion every two to three years and Respondent told Petitioner that she wanted to go to the summer 2021 reunion with the children. . During their conversations, the parties discussed that the trip to Mexico in June 2021 would be a temporary visit and that Respondent, E.Z., and S.Z. would thereafter return to their home in Iceland. When she left for Mexico, Respondent told Petitioner that she would return to Iceland after her trip. In fact, Respondent told several others that she would return to Iceland after her trip to Mexico. In late spring 2021, Respondent mentioned to Ms. Thorsteinsson that their children could visit summer camps in Iceland in August after Respondent returned from her vacation to Mexico. About two weeks before her trip to Mexico, Respondent told Mr. Pedersen that she was about to travel there for a family reunion and that she would then return to Iceland.. On June 15, 2021, Respondent texted a close friend of hers in Iceland, Jonas Moody, that “things are better,” that she was going to Mexico, and that she would be returning to Iceland around mid-July. There was no evidence reflecting that at any time Respondent indicated that she intended to abandon Iceland after she visited Mexico for the family reunion. However, on June 2, 2021, shortly before the anticipated departure to Mexico for the family reunion, Petitioner received an email from P.S. 9 indicating that the children were enrolled in the school in New York for the upcoming school year. This enrollment was done by Respondent without Petitioner’s knowledge or consent.. This revelation led to an argument between the parties and Petitioner started to suspect that by secretly enrolling the children at P.S.9, Respondent was planning to remove the children to New York after her upcoming trip to Mexico.. Ultimately, Petitioner agreed to let Respondent go to Mexico, but with only E.Z. and S.Z. He did this because he was afraid that, due to their deteriorating marriage, Respondent would take the children out of Iceland.  

 

On June 17, 2021, Respondent flew from Iceland to Mexico with E.Z., S.Z., and the children’s nanny. The ostensible reason for the trip was for the family to visit Mexico to attend Respondent’s family reunion and thereafter return to Iceland. While in Mexico at this time, on June 20, 2021, Respondent wrote to a company that manages Airbnb properties in Reykjavik that her mother was coming to Iceland in August for a month and asked if apartments were available. Respondent testified that at this time she was still considering all her options. Sometime between June 20, 2021, and July 21, 2021, however, Respondent’s intent to return to Iceland apparently changed and, on July 21, 2021, Respondent traveled from Mexico to New York with E.Z. and S.Z. Petitioner became aware within about a week that Respondent was in New York with E.Z. and S.Z. The Court found that contrary to what Respondent now contended, the couple never changed their shared intent that, in the summer of 2021, the habitual residence of the children was Iceland. Rather, it was apparent that Respondent unilaterally decided to remove E.Z. and S.Z. to New York, rather than return to Iceland as she had told Petitioner and many of their friends she would do.. It appeared that Respondent removed the children and took them with her to New York perhaps due to the escalating marital difficulties. She offered no explanation whatsoever of how or why she ended up in New York in July 2021 with two of the couple’s three children.

 

On the same day she arrived in New York, Respondent filed an action for divorce in Supreme Court, New York County. That same day, Respondent filed an Emergency Order to Show Cause seeking, among other things, a temporary restraining order for interim sole custody of the children and for Petitioner to return R.Z. to New York. Justice O’Neill Levy denied the application. On August 2, 2021, Petitioner filed custody proceedings in Iceland. On August 13, 2021, Petitioner filed a petition under the Hague Convention, seeking the return of E.Z. and S.Z. to Iceland.

 

 The District Court observed that Second Circuit has not defined the term, but has instructed that in determining “habitual residence,” district courts should apply a two-part test: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Hofmann v. Sender, 716 F.3d 282, 291–92 (2d Cir. 2013) (quoting Gitter, 396 F.3d at 134); see Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019).

 

Recently, the Supreme Court clarified that “a child’s habitual residence depends on the totality of the circumstances specific to [a given] case.” Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020). The Court noted that “locating a child’s home is a fact-driven inquiry,” and “courts must be sensitive to the unique circumstances of the case and informed by common sense.” Id. at 727 (internal quotation marks omitted). Accordingly, “[b]ecause 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.” Id. “In other words, the parents’ last shared intent is a relevant consideration, but it is by no means dispositive of the habitual residence inquiry.” Grano v. Martin, 443 F. Supp. 3d 510, 535 (S.D.N.Y. 2020), aff’d, 821 F. App’x 26 (2d Cir. 2020).  “[A] wide range of facts other than an actual agreement, 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.’ ” Monasky, 140 S. Ct. at 729. “The bottom line: There are no categorical requirements for establishing a child’s habitual residence – least of all an actual-agreement requirement for infants.” Id. at 728. In instructing courts to look at the totality of the circumstances, the Supreme Court has provided a nonexclusive list of facts the Court can consider: “a change in geography combined with the passage of an appreciable period of time,” “age of the child,” “immigration status of child and parent,” “academic activities,” “social engagements,” “participation in sports programs and excursions,” “meaningful connections with the people and places in the child’s new country,” “language proficiency,” and “location of personal belongings.”. It is the petitioner’s burden to “establish[ ] by a preponderance of the evidence a child’s habitual residence at the time of the contested removal.” Guzzo v. Cristofano, 719 F.3d 100, 107 (2d Cir. 2013). 

 

The Court began its analysis with an evaluation of the shared intent of the parties. It is the intent of the parents “at the latest time that their intent was shared” that is relevant to a determination of habitual residence. Gitter, 396 F.3d at 134. This inquiry in turn involves two questions: whether the parents formed a shared, “settled intention” to “abandon” the child’s previous habitual residence, id. at 132, and whether the parents “have mutually intended that the child acquire a new habitual residence” in a new location, id. at 133; accord Berezowsky v. Ojeda, 765 F.3d 456, 468 (5th Cir. 2014) (courts “usually [ ] try to determine when the parents last had a shared plan regarding their child’s future[ ] and what that plan entailed”). A settled intention to abandon a prior habitual residence need not be expressly declared “if it is manifest from one’s actions; indeed one’s actions may belie any declaration that no abandonment was intended.” Mozes, 239 F.3d at 1075. “Often parents will not agree about what their shared intentions were once litigation is underway, and so we must take account of the parents’ actions as well as what they say.” Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011). Moreover, “one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary.” Mozes, 239 F.3d at 1075.

 

The Court concluded that the family intended to abandon New York when they moved to Iceland in August 2020. The inquiry here was not straightforward because, throughout their marriage, the parties were indecisive with respect to their permanent long-term plans and both parties were in agreement that the decision to move to Iceland was not meant to be a definitive plan to move to Iceland permanently. However, although “[d]etermining intent when the parents disagree about their child’s habitual residence is an Augean chore[,] ... it is necessary to look beyond the subjective intent of the parents to the objective manifestations of that intent.” Armiliato, 169 F. Supp. 2d at 237. Here, the objective facts surrounding the parties’ move to Iceland supported the Court’s finding of a shared intent to abandon New York indefinitely when the couple moved its family to Iceland and set down roots in Iceland. The Court found that once the couple decided to move to Iceland, their shared intent was to remain there indefinitely, though not necessarily permanently. Grano, 443 F. Supp. 3d at 537 (finding that the child’s habitual residence was where the family intended to relocate indefinitely). The Court found credible Petitioner’s candid explanation that they intended to stay for a few years, “see how it goes,” and see if they would have a better life there. While the couple left the door open to returning to the United States or elsewhere at some point, at the relevant time when Respondent took the children from Iceland under the pretext of visiting family in Mexico, clearly the family’s home was Iceland. Mozes, at 1077 (even if “the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration[,] [s]ometimes the circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely”); see also Koch v. Koch, 450 F.3d 703, 713 (7th Cir. 2006); Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004).

 

This shared intent was not only supported by some of Respondent’s messages to her friends, but also the parties’ “objective manifestations of that intent” in planning their move and once they arrived in Iceland. Other facts supported the conclusion that the parties made Iceland the habitual residence of their family, including E.Z. and S.Z., when they moved to Iceland in the summer of 2020. Respondent began taking Icelandic language lessons. The couple signed E.Z. up for extracurricular activities in Iceland including music lessons, karate, soccer, basketball, and a swimming class.. The parties registered E.Z. at a gymnastics club for the 2021–2022 school year. The couple took steps to enroll E.Z. in school in Iceland for the 2021–2022 school year. On June 10, 2021, only one week before her trip to Mexico, Respondent emailed Landakotsskoli about enrolling E.Z. into both violin and piano lessons. In June 2021, Petitioner and Respondent also enrolled S.Z. in school in Iceland. The shared intent of the parties to make Iceland the family’s habitual residence when they moved there in 2020 was also supported by a comparison with the objective facts surrounding the family’s other relocations. As such, the Court found that the parties had a shared intent in the fall of 2020 to abandon New York and to establish a new habitual residence for themselves and the children in Iceland.

 

The Court pointed out that under Monasky, the parties’ last shared intent is not, in and of itself, dispositive of what the “habitual residence” of E.Z. and S.Z. was at the time they were removed to New York. The conclusion that the family’s habitual residence was Iceland at the time the two children were removed by Respondent is also strongly supported by the totality of the evidence set forth above — i.e., objective facts suggesting that E.Z. and S.Z. were at home in Iceland. As the Supreme Court instructs, at bottom, the habitual residence inquiry is designed simply to ascertain where a child “is at home[ ] at the time of removal or retention.” Monasky, 140 S. Ct. at 726. While intent is helpful to that determination, so too are the objective facts regarding where the child actually lives. Not only do the couple’s actions while in Iceland suggest that their intent was to live there for an indeterminate amount of time, but relevant facts also suggest that E.Z. and S.Z. were at home in Iceland when Respondent removed them to New York. To the extent that S.Z. may have been too young to acclimate to his new environment in Iceland, it would only put more weight on the Court’s conclusion that the parents’ last shared intent was to make Iceland the family’s habitual residence. See Guzzo, 719 F.3d at 109 n.7. Nevertheless, the facts here supported the conclusion that both E.Z. and S.Z. had acclimated to and were at home in Iceland. E.Z. and S.Z. were citizens of Iceland. E.Z. was attending school in Iceland and had several friends there. She also had an active social life, which included playdates and sleepovers with the three or four friends she made in Iceland.. While in Iceland, she attended birthday parties her friends’ hockey classes, extracurriculars such as music lessons, karate, soccer, and basketball, and ice skating and swimming classes. She also enjoyed family and social activities, including visiting museums and zoos, and sight-seeing some of Iceland’s scenic natural attractions. S.Z., only about two years old at the time, had also begun to socialize in Iceland with other children. And he participated in family activities, went on family outings, and visited along with his parents and siblings with Petitioner’s parents, brothers, and their cousins.

  

The Court found that Petitioner has proven by a preponderance of the evidence that E.Z. and S.Z. were habitual residents of Iceland at the time Respondent removed them to New York. Respondent did not contest that Petitioner had otherwise established the other two elements of his claim under the Convention. The petition was granted.

 

Colchester v Lazaro, --- F.4th ----, 2021 WL 4929601 (9th Cir., 2021)[Spain] [Petition granted][Grave risk of harm][Discovery] Reversed for abuse of discretion]

 

In Colchester v Lazaro, --- F.4th ----, 2021 WL 4929601 (9^th Cir., 2021) the child’s father sought the return of the child to Spain. The mother argued that returning the child to her father, who she alleged had abused both her and her baby, would present a grave risk of psychological or physical harm to the child, and a defense under Article 13(b) of the Convention applied. The district court granted  the  petition for the return. The Fifth Circuit held that the district court abused its discretion in denying Lazaro’s application for a meaningful psychological examination of S.L.C. which resulted in actual and substantial prejudice to Lazaro, since there was a reasonable probability that ordering the exam would have changed the result at trial. The court’s denial of that examination therefore constituted reversible error. It vacated the order and remanded the matter to the district court for appointment of a psychologist and a new trial

 

The Court pointed out that the Hague Convention’s central operating feature is the return remedy. Where a parent files a petition for return alleging that a child under the age of 16 was wrongfully removed or retained within the last year, “the country to which the child has been brought must ‘order the return of the child forthwith,’ unless certain exceptions apply.” Among those exceptions is the “grave risk” defense: Article 13(b) of the Convention provides that “the judicial ... authority ... is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or would otherwise place the child in an intolerable situation.” Convention, art. 13(b), 19 I.L.M. at 1502. This “grave risk” defense reflects the proposition that “the remedy of return ... is inappropriate when the abductor is a primary caretaker who is seeking to protect herself and the children from the other parent’s violence.”  A respondent parent can establish a grave risk of harm from abuse “where the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Spousal violence may also “establish a grave risk of harm to the child, particularly when it occurs in the presence of the child.” The grave risk exception is narrowly drawn. ICARA requires that a respondent must establish the Article 13(b) grave risk defense by clear and convincing evidence. And even when the respondent establishes that a grave risk of harm exists, the court may still order the child’s return if it determines there are ameliorative measures that would “allow both the return of the child[ ] to [his or her] home country and [the child’s] protection from harm.”

 

S.L.C. was the now-six-year-old, U.S.-citizen daughter of Appellant Jewel Lazaro, who resided in or around Seattle, WA, and Appellee Seth Colchester, who resided in or around Barcelona, Spain. In January 2020, Colchester was given sole custody of S.L.C. by a Spanish court sitting in Barcelona. Lazaro, who lacked the resources to live in Spain fulltime, was visiting Colchester and S.L.C. in April 2020, as the COVID-19 pandemic erupted. According to Lazaro’s testimony at the bench trial below, during that visit Colchester often “screamed at and acted aggressively toward both her and S.L.C.” Lazaro testified about several specific instances of alleged abuse that occurred at the time, including: • Colchester grabbing S.L.C. by the arm and throwing her down the hallway, leading S.L.C. to cry and hide in her room with Lazaro;• Colchester screaming at S.L.C. to “get downstairs, before I kick you downstairs” and then kicking S.L.C. down the stairs; • Colchester screaming at S.L.C. on various occasions for things like not folding his laundry, and sticking his finger in her face and making her cry;

More generally, Lazaro also alleged that Colchester repeatedly screamed at five-year-old S.L.C. and compelled S.L.C. to do various chores, including his dishes and laundry. Following these incidents, Lazaro absconded with S.L.C. After fleeing Colchester’s home, she falsely told local Spanish police that she had legal custody of S.L.C. She also hired a Spanish forensic psychologist, Dr. Alicia Romero Fernandez, who conducted a preliminary examination of S.L.C. for approximately 90-minute via Skype and through a translator. After Lazaro was unable to find anywhere to stay in Spain because of the COVID-19 lockdown, she and S.L.C. fled to the United States using a passport for S.L.C. that Lazaro had previously claimed to have lost. Colchester then filed a Hague Convention application in Spanish court, filed a criminal complaint against Lazaro in Spain, and applied to the governments of Spain and the United States for S.L.C.’s return. The Spanish court eventually issued a warrant, based on an order declaring that Spain was S.L.C.’s habitual residence and that Lazaro’s removal of S.L.C. to the United States was wrongful under the Convention. Lazaro and S.L.C. eventually made it to Washington State.

 

Colchester filed the Hague Convention proceeding on July 20, 2020 in Snohomish County Superior Court, seeking S.L.C.’s return under the Convention and ICARA. On October 25, 2020, Lazaro’s counsel accepted service of the Hague Convention petition and removed this action to the Western District of Washington.

 

After Colchester belatedly requested expedited proceedings in mid-January, the district court held a status conference on January 27, 2021. Lazaro filed a pre-conference memorandum setting forth two limited discovery requests: a psychological examination of S.L.C. and limited document requests. At the conference, the court questioned why a psychological exam was required, since Dr. Romero had already examined S.L.C. in April 2020 by video. Lazaro’s counsel explained that the prior exam was a relatively short “initial screening” conducted through an interpreter and that the psychologist recommended a more extensive examination. Counsel explained that it would be difficult to continue working with the Spanish psychologist, not just because of the challenges posed by conducting an effective examination through a translator, but also because the nine-hour time difference would complicate efforts to complete the necessary exams and trial preparation on the expedited schedule Colchester had requested. Counsel argued that it was necessary to conduct an exam informed by the case law applicable in the district court, which Dr. Romero had not considered. Counsel explained that such psychological exams of children are routine in Convention cases and that Lazaro would develop reliable evidence that S.L.C. suffered psychological harm from Colchester’s alleged abuse of her and Lazaro, which would be “critical” to establishing the affirmative defense that S.L.C. faced a grave risk of psychological harm from living with Colchester. In support, Lazaro cited a recent Convention case in the Western District of Washington in which the judge declined to find that a grave risk of harm to the child existed, despite crediting the respondent mother’s allegations of severe domestic violence, because no psychological expert testified about the “potential for psychological harm to children in cases of spousal abuse.” Consequently, counsel argued that “we can’t rely solely on witness testimony, and the relatively cursory Spanish evaluation, to prove grave risk by clear and convincing evidence.” The Court then ruled, without explanation and even though there had been no discovery, that “we’re going to have no more discovery. I’m not going to order the evaluation to take place.” The court then set a four-day bench trial for February 22, 2021.

 

The bench trial, conducted over videoconference, started three weeks later. Lazaro attempted to present evidence of alleged domestic violence through fact witness testimony, medical records, and the testimony of Dr. Romero (the Spanish psychologist who had conducted a preliminary examination of S.L.C. over videoconference in April 2020). On the first morning of trial, the district court denied Lazaro’s offer for S.L.C. to testify in whatever manner the court deemed appropriate, such as in camera and ex parte. The court thus precluded the testimony of the person with the most personal knowledge of whether S.L.C. had been abused, namely, S.L.C. herself. At trial, Lazaro alleged other instances of Colchester abusing her and S.L.C. beyond those said to have occurred during her spring 2020 visit to Colchester’s Barcelona home (as previously referenced). These included: Throwing a bowl of soup at Lazaro’s head, leaving a bruise;  Keeping Lazaro and S.L.C. “under [his] control financially ... ma[king] her beg him on a weekly basis just for money for food;” Kicking Lazaro in the stomach when she was three-months pregnant with S.L.C. and forcing her to sleep in the closet; Punching and screaming at Lazaro when she was seven-months pregnant, after she sat in the driver’s seat of his car, then throwing her to the ground, dragging her through the gravel, and leaving her on the side of the road for hours; Hitting Lazaro in the head with S.L.C.’s bag, in front of S.L.C.; Smashing Lazaro’s guitar, in front of S.L.C., after Colchester’s associate told him that Lazaro was out with a friend; Shoving Lazaro into walls, on numerous occasions, in front of S.L.C.; Slapping Lazaro and ripping S.L.C. away, when she was breastfeeding S.L.C. rather than paying attention to Colchester; Throwing S.L.C. out of a first-floor kitchen window, after screaming at her about breakfast dishes, then locking S.L.C. outside until dinnertime without giving her food. Some of these incidents were corroborated with contemporaneous evidence, including text and photo messages exchanged with Colchester, emails to domestic violence organizations, and an audio recording, as well as testimony from cross examination of Colchester’s mother.

 

Dr. Romero testified at trial as a psychological expert in forensic evaluation of children. Her opinions were based entirely on her spring 2020 evaluation of S.L.C. Dr. Romero testified that she concluded there was “the possibility that [S.L.C.] [wa]s being abused by her father” because she “verbalized that she was scared of her father and that she had suffered physical abuse at the hand of the father.” She further testified that she did “not detect[ ] any indication that [S.L.C.] had been manipulated,” and that she did not discern that Lazaro was affected by any “pathology.” Finally, she testified as to the developmental risks that are created when an abusive parent obtains sole custody of a child. On cross examination, Dr. Romero acknowledged that there were limitations to her opinion, including that she was not able to do an in-person evaluation and that she was unable to spend time alone with S.L.C.,and explained that they were due to the need to respond to the “emergency situation” presented by Lazaro’s flight from Colchester’s alleged abuse and the COVID-19 lockdown measures in place at the time of her examination.

 

 

The district court issued a five-page order the day after the trial concluded. The order begins by noting that it was undisputed that Lazaro’s removal of S.L.C. from Spain was unlawful under the Convention and that S.L.C.’s habitual residence (not challenged on appeal) was Spain and Lazaro had not presented clear and convincing evidence that returning S.L.C. to Colchester’s custody in Spain would subject her to a grave risk of physical or psychological harm. The Court ordered that S.L.C. be returned to Spain, provided that Colchester must facilitate “daily electronic communications” between S.L.C. and Lazaro, and that Lazaro be permitted supervised visits with S.L.C., limited to two days per month. The district court’s order did not discuss any of the testimony or evidence regarding Colchester’s alleged abuse. In lieu of setting forth its own findings of fact, the order stated that the court “adopts and incorporates paragraphs one through ten and thirteen of Mr. Colchester’s proposed findings of fact and conclusions of law.” Colchester’s ¶ 10 did not address any of the evidence Lazaro presented during the trial. Instead, ¶ 10 stated that “[m]any of the allegations of domestic violence and ‘drug trafficking’ that Ms. Lazaro has raised to attempt to use this ‘grave risk’ exception ... were raised and rejected” in prior U.S. and Spanish courts. The only three paragraphs drafted by the court itself did not address the substance of Lazaro’s grave risk defense.

 

Lazaro’s allegations that Colchester had abused both S.L.C. and herself formed the core of her Article 13(b) defense that returning S.L.C. to live with Colchester in Spain would subject S.L.C. to a grave risk of physical or psychological harm. Lazaro therefore argued to the district court at the pre-trial conference that credible testimony from a psychological expert who had examined S.L.C. would be essential to her case, and she sought an order permitting the necessary examination. The district court nonetheless denied her application, apparently because Lazaro could put on Dr. Romero, a Spanish psychologist who had interviewed S.L.C. over videoconference and through an interpreter for 90-minutes, even though, as Lazaro argued, Dr. Romero’s brief interview was no substitute for an in-depth interview by a psychological expert. (The court also rejected Lazaro’s offer for the judge to hear from S.L.C. herself, either on the stand or in camera and ex parte.) But after the trial, the district court indicated that it viewed Dr. Romero’s testimony as not credible because her opinion was based on an inadequate examination, the very reason Lazaro had sought a new exam before trial. The court subsequently held that Lazaro had failed to present clear and convincing evidence to establish her Article 13(b) defense.

 

Lazaro argued on appeal that the district court’s refusal to permit an in-depth psychological examination rendered the bench trial unfair. The Ninth Circuit agreed. It noted that Psychological evidence is particularly important in cases like this one, where the respondent (usually the mother) alleges that she fled with her children because the petitioner (usually the father) had abused her and/or her children. In these cases, psychological evidence can be important both because it can help the court determine whether the alleged abuse occurred and because it can aid the court in assessing the effect any abuse had on the child’s psychological health. Courts hearing Convention petitions thus routinely grant requests to order psychological examinations of children and credit testimony of psychological experts. The Seventh Circuit held in Khan v. Fatima that it was reversible error for a district court to refuse a respondent mother’s request for a psychological evaluation of her child where there was credible evidence that the petitioning father had physically and psychologically abused her in the child’s presence. 680 F.3d at 787–88. “The failure to allow psychological evidence,” along with inadequate findings of fact, made “the evidentiary hearing ... inadequate.”.

 

The Court held that as a threshold matter, the district court did not provide a reasoned decision when it denied Lazaro’s application for a psychological examination of S.L.C. The district court’s brief remarks were just one-sentence questions during argument, and when the court announced its decision, it provided no reasons. It impliedly misstated the record, by saying that “[w]e’re going to have no more discovery” when no discovery at all had yet taken place in this action. The transcript reflects no discussion of whether the parties could conduct limited discovery before an expedited trial, whether Lazaro’s proposed expert could conduct a psychological examination in the time allotted, or whether Colchester was entitled to his delayed request for expedition. It held that the district court’s wholesale denial of discovery in general and of the psychological examination in particular was unreasonable. This alone would suffice for remand. Moreover, it would have been unfair for the district court to first refuse the exam because Dr. Romero had already examined S.L.C. but later conclude that Dr. Romero’s examination was too brief to be reliable and that her testimony should never have been admitted because her opinion was based on an inadequate examination. Together, these rulings rendered the bench trial fundamentally unfair. This error was further compounded by the district court’s peremptory refusal to permit S.L.C. to testify herself. In effect, the district court’s rulings made it practically impossible for Lazaro to make out her case. Finally, the district court’s abuse of discretion in denying Lazaro’s application for a meaningful psychological examination of S.L.C. resulted in actual and substantial prejudice to Lazaro, since there is a reasonable probability that ordering the exam would have changed the result at trial. The court’s denial of that examination therefore constituted reversible error.

 

The panel also found the district court erred by failing to make findings of fact adequate to support its order returning the child to Spain. The only findings of fact supporting the post-trial return order were those portions of the petitioner’s proposed findings of fact that the district court simply adopted by reference. But the petitioner’s proposed findings were entirely conclusory and failed to engage with any of the evidence or testimony adduced at trial. Federal Rule of Civil Procedure 52 demands more. Reversal was warranted because, “[a]s a consequence [of the omitted findings], there was  no way of knowing whether the district court’s decision in favor of [Colchester] on [Lazaro’s Article 13(b) defense] was based on resolution of the determinative facts in [his] favor; or whether the court erroneously concluded that [the alleged abuse] could, under no circumstances have ... implications” for Lazaro’s grave risk claim. The district court failed to comply with Fed. R. Civ. P. 52(a), because the order below did not resolve the factual disputes necessary to support its legal conclusions.