Recent Hague Convention District Court Cases - Argueta v Lemus, 2022 WL 880039 (N.D. Mississippi, (2022))

Argueta v Lemus,  2022 WL 880039 (N.D. Mississippi, (2022))

[Honduras][ Parties stipulated Father established a prima facia case] [Mother had not established that Father consented or acquiesced to permanent removal of his minor son from Honduras. Mother failed to prove by clear and convincing evidence that the parties’ child would be subject to a grave risk of physical or psychological harm if the child were returned to Honduras. Mother’s assertions that Father was abusive toward her, including bruising her shoulder by grabbing it on one occasion and pushing her on to the bed, and pulling her hair on another, did not rise to the level of a grave risk of harm.  Mother failed to prove that returning the child to Honduras would place the child in an “intolerable situation.” Well-Settled defense not established. (Report and Recommendation that the petition be granted] 

  

Recent Hague Convention District Court Cases - Galli v Marques, 2021 WL 7451915 (M.D. Florida, 2021)

 

Galli v Marques, 2021 WL 7451915 (M.D. Florida, 2021)

[Brazil][Habitual residence][Well-Settled][Petition granted] [Respondent stipulated that the Petition, coupled with the exhibits submitted, established Petitioner’s prima facie case that a wrongful retention of D.L.M.G. occurred.  Respondent did not demonstrate by a preponderance of the evidence that D.L.M.G. was now “well settled” in the United States for purposes of the Convention. (Report & Recommendation)

Recent Hague Convention District Court Cases - Soto v Garcia, 2022 WL 780701 (N.D. Texas, 2022)

 

Soto v Garcia, 2022 WL 780701 (N.D. Texas, 2022)

[Mexico][Habitual residence][Petition granted] [ Child’s habitual residence was Torreón, Coahuila, Mexico; Respondent wrongfully retained the Child in the United States, in violation of Petitioner’s custodial rights. Petitioner did not consent or acquiesce to the Child’s retention in the United States. The Child’s return to Mexico would not place her at grave risk of psychological or physical harm.

Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021) [France][Petition denied][Costs]

In Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021)  following the denial of the father’s petition for return of the child ( 2021 WL 1885263) Respondent  moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1. 

Respondent requested total costs in the amount of f $87,305.06. Petitioner contests the amount sought and argues that an award of costs should be limited to $18,105.34.

The district court observed that Federal Rule Of Civil Procedure 54 provides that, “unless a federal statute, these rules, or a court order provides otherwise, costs – other than attorney’s fees – should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1) (“Rule 54”)). The items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497, 96 L.Ed.2d 385 (1987). 28 U.S.C. § 1920  lists six categories of recoverable costs: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. § 1923]; and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].  A court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497. “Rather, absent a contract or statute that authorizes a court to award additional costs to the prevailing party, only those costs that are set out in Section 1920 are properly taxable.” Endo Pharmaceuticals, Inc. v. Amneal Pharmaceuticals, LLC, 331 F.R.D. 575, 579 (S.D.N.Y. 2019) (citing Crawford Fitting, 482 U.S. at 445, 107 S. Ct. at 2499). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs.’ ”Endo Pharmaceuticals, 331 F.R.D. at 578-79 (quoting National Organics, Inc. v. Nutraceutical Corp., No. 01-CV-384, 2009 WL 2424188, at *2 (S.D.N.Y. Aug. 6, 2009))  Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006. Section 1920 thus does not direct that the court “must” or “shall” award costs, but rather that a judge or clerk of court “may” tax costs as set forth in the statute. 28 U.S.C. § 1920; see Endo Pharmaceuticals, 331 F.R.D. at 580. Similarly, Rule 54 provides that although certain costs “should” be awarded, a court may order “otherwise.” Fed. R. Civ. P. 54(d)(1).

 

Respondent requested payment for the following categories of costs, among others: trial transcripts; printing, copying, and exemplification; fees paid to interpreters; and the fees paid for remote trial services. Petitioner contended that much of what Respondent requests is not taxable as costs and should not be awarded. The Court addressed each disputed category in turn.

 

Trial Transcripts. The court held that fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent. The Court could not determine that amount from the invoices provided by counsel and required Respondent to provide a revised bill of costs that makes the appropriate adjustment.

 

Printing, Copying, and Exemplification. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs were attributed to exemplification as distinct from those that fall under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeded what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. And while exhibits were exchanged and displayed digitally, paper copies could not be avoided.  The Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.

 

Interpreters. Interpreters were employed for trial because the parties’ native language is French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees are awardable based on this District’s local rules, because the costs sought are those associated with the testimony of Respondent who is a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4). Section 1920 expressly identifies costs that “may” be awarded, thus permitting courts to award less than what “may” otherwise be allowed. Rule 54 does exactly that. See Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (“Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d). It is phrased permissively because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party.”). Respondent’s argument was premised on the incorrect assumption that all costs contemplated  by Section 1920 are mandatory. The Court was not aware of any authority so holding. Accordingly, costs for Respondent’s interpreter were not awarded.

 

Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, Trial Graphix, which provided technology for and facilitated trial. Petitioner contends that Respondent was not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner is correct. The Court noted that remote trial costs are not mentioned in any category of costs under 28 U.S.C. § 1920 or Local Rule 54.1. Another court in this District recently confronted the very issue presented here: whether the costs of retaining Trial Graphix to facilitate a remote trial fall within the ambit of recoverable costs. Chain v. North East Freightways, Inc., 16-CV-3371, 2021 WL 1611953 (S.D.N.Y. April 26, 2021). The Chain court held that they do not, distinguishing between the costs of preparing demonstrative exhibits, which may be recoverable, and costs for remote trial hosting, the service provided by Trial Graphix both there and here.  Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting.  Accordingly, costs of conducting the trial remotely were not awarded.

 

Cruvinel v Cruvinel, 2022 WL 757955 ( E.D. N.Y., 2022) [Brazil] [Age & maturity][Grave Risk of Harm][Petition denied]

 

In Cruvinel v Cruvinel, 2022 WL 757955 ( E.D. N.Y., 2022) the district court denied the petition filed by  Pablo Menezes Cruvinel against Respondent Leila Coelho Soares Cruvinel seeking the return to Brazil of their 13-year-old daughter (“AC”).

The Court held a virtual hearing commencing December 7, 2020.   Petitioner and Respondent met in Brazil in 2002.  Petitioner and Respondent were married in early 2007. AC was born on March 2, 2007. Prior to marriage the respondent learned that Petitioner was a substance abuser who became aggressive when high. Although Respondent hoped that Petitioner’s behavior would change with the arrival of AC, his substance abuse only worsened, with petitioner frequently drinking and getting “high from marijuana and painkillers.”  Throughout the marriage, Petitioner regularly berated and yelled at Respondent in front of AC and made no effort to conceal his aggression or substance abuse. Petitioner’s aggressive behavior continued when AC entered primary school. On December 8, 2014, when AC was seven years old, Petitioner and Respondent had a particularly violent argument.  Petitioner began yelling at Respondent while at the kitchen table, shouting that she was a “slut” and “worthless,” and yelling “I will have you killed!” Petitioner then began punching the kitchen table before pulling off the tablecloth and knocking its contents to the floor. Respondent ran out of the apartment hoping to get to the police station, but Petitioner chased after her with a broomstick, hid the car keys, and broke their car mirrors with the broomstick. Respondent ultimately took a taxi to the police station and filed a police report of the incident. Still, after returning home, Respondent accepted Petitioner’s apology and decided to stay in a relationship with Petitioner. However, the violence continued. On July 20, 2016, Respondent took AC to her cousin’s debutante party..) The party ran late and, when Respondent and AC eventually returned home, Petitioner, who was drunk, became upset and began to argue with Respondent. Respondent went to AC’s bedroom to sleep on a mattress on the floor. Respondent did not want to engage with Petitioner while he was intoxicated, but Petitioner continued to bang on the bedroom door, yelling and threatening to knock down the door if Respondent did not open it. When Respondent finally opened the door, Petitioner entered the bedroom, threw the contents of the bedside table about the room, and tried to suffocate Respondent with the mattress. AC, who was nine years old at the time, was awake and “petrified” in the next bed. Petitioner continued to suffocate Respondent with the mattress until AC yelled for him to stop. The next day, Respondent and AC left Goiania, where they lived at the time. Respondent filed a police report and took AC to Tocantins, Brazil. Over the next week, Petitioner called Respondent repeatedly, insisting that he would change his behavior. (espondent returned to Goiania for a couple of weeks but nothing changed. Throughout this time, AC repeatedly asked Respondent why she would not divorce Petitioner. 

 

Petitioner and Respondent formally separated in or around August 2016. They shared joint custody of AC, though AC spent the majority of time with Respondent. When AC stayed with him, Petitioner continued to abuse substances and failed to provide AC with any structure. On January 4, 2017 Petitioner drunkenly called Respondent and threatened to “do away” with her and destroy the computers at Respondent’s workplace. Respondent then went to her workplace where she discovered Petitioner. Petitioner then drunkenly called her a “whore” and “bitch.” Petitioner showed Respondent his civil union contract before throwing a computer at Respondent. Respondent called the police in fear for her safety. When the police arrived, they arrested Petitioner. Both Respondent and a police officer at the scene provided statements, describing Petitioner’s belligerent behavior and violent conduct. Petitioner and Respondent divorced on April 26, 2018. The divorce decree provided that Respondent would maintain primary residential custody of AC and that Petitioner would retain “free form” joint custody of AC with Respondent. 

In May of 2018, Respondent informed Petitioner that she intended to move to New York with AC. After Respondent obtained a passport for AC, Petitioner signed AC’s Brazilian travel authorization form, which was valid for three months.   Respondent and AC settled in Mineola, New York, with Jean Cabral on August 13, 2018. (On September 6, 2018, Respondent and Mr. Cabral married. In June 2019, Respondent gave birth to her second daughter. AC has described her half-sister as “her dream.” In September of 2018, AC enrolled in Mineola Middle School as a sixth-grade student. (AC adjusted quickly to her new environment: her teachers and school administrators reported that she appears to be very happy, has made many friends, and is involved in a number of extracurricular activities, such as the jazz band. Throughout their time in the United States, Respondent has ensured that AC kept in contact with her father. Though Petitioner and AC have kept in touch by message and phone, his messages to AC have included threats, bribes, guilting and coercive messages, and lies. In one message, Petitioner told AC: You will be a bastard daughter there, because your mother will be with her daughter and her husband[.] Your father is here, you will be a bastard daughter there. Your mom is going to make you work and do everything for her. You will be a maid for them, and you will be a bastard daughter. Petitioner has sent multiple messages to AC, including a photo of his gun, threatening that his lawsuit would send Respondent to jail and force AC to return to Brazil against her will. Petitioner’s messages have caused AC to be afraid, stressed, and to cry. Most recently, AC has been hesitant to open Petitioner’s messages because of the stress they cause her. 

 

The district court found that the  abuse suffered by Respondent had a direct impact on AC. AC testified that she “lived in a home where [she] only experienced ... a lot of aggression. [She] didn’t really experience that much love” and she “could see that [her] dad [was] also very bipolar sometimes and he does have a lot of anger issues and [she] experienced everything that a child should have not experienced.” AC testified that Respondent tried to make her “feel like [she] had a home” and was safe and could “express [her] emotions” and “live happily.” For instance, in consultation with AC’s teachers, Respondent sought the assistance of mental health professionals to help AC cope with her volatile home life. 

 

Dr. Favaro, a psychologist, testified that Petitioner’s aggressive behavior was both troubling and dangerous. This risk of danger is exacerbated by Petitioner’s substance abuse. As a result of the physical and psychological “stressors” to which AC was exposed, she will likely “retain memories that create fear, anxiety, panic and emotional distress and trauma if forced to return to those stressors.” Children who witness domestic violence, such as that which AC witnessed Petitioner commit against Respondent, suffer emotional trauma, including shock, fear and guilt as a result.  AC’s psychological health and well-being have improved since she was removed from the environment she associates with these distressing and traumatic events. Dr. Favaro testified that the “stressors which would be related to a return to an environment which AC associates with recollections of coercion, entrapment and violence against her motion would likely cause confusion, maladjustment and panic in her[.]” Dr. Favaro determined that removing AC from the United States to Brazil “would be detrimental to her adjustment and could expose her to catastrophically negative influences on her emotional health and development and as such is contrary to her best interests.” 

 

The district court observed that “[A] court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.” Blondin v. Dubois (“Blondin IV”), 238 F.3d 153, 166 (2d Cir. 2001). See Laguna v. Avila, No. 07-cv-5136, 2008 WL 1986253, at *9 (E.D.N.Y. May 7, 2008) (“[T]here is no precise age at which a child will be deemed sufficiently mature under the Convention.... Rather, the child’s maturity is a question for the district court, to be determined upon the specific facts of each case.” On balance, age 13 has been determined to be sufficiently mature under the statute. 

 

The parties agreed that AC had attained a sufficient age and maturity to choose where she should live, and both parties agreed that AC unequivocally wished to remain in the United States. The Court found no basis to disagree with the parties’ conclusions. 

The Court also noted that grave risk defense applies where “the child faces a real risk of being hurt, physically or psychologically” and where “the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Blondin IV, 238 F.3d at 162. The grave risk inquiry is “fact-intensive” and considers a wide range of conduct, including manipulative or alienating behavior, physical or psychological abuse, spousal abuse, the petitioner’s general pattern of or propensity for violence, Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017), as well as the extent to which the child is “so deeply rooted in the United States” that her return would result in impermissible psychological harm, Elyashiv v. Elyashiv, 353 F. Supp. 2d 394, 406 (E.D.N.Y 2005) To establish the grave risk defense, the respondent may adduce individual facts, each of which “need only be proven by a preponderance of the evidence,” that, taken together, establish “clear and convincing evidence” that a grave risk exists. Elyashiv, 353 F. Supp. 2d at 404 (citation omitted). “[E]vidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense.” Davies, 717 F. App’x at 48; see also Valles Rubio v. Veintimilla Castro, No. 19-CV-2524, 2019 WL 5189011, at *22 (E.D.N.Y. Oct. 15, 2019) “A parent’s general pattern of violence” or propensity for violent abuse is also relevant to the grave risk inquiry. Elyashiv, 353 F. Supp. 2d at 408. 

 

The court found that there was  clear and convincing evidence that returning AC to Brazil would expose her to a grave risk of psychological and physical harm. First, AC witnessed much of Petitioner’s psychological spousal abuse as well as at least one episode of serious physical violence—Petitioner’s attempt to suffocate Respondent. This sort of spousal abuse has had a lasting and profound effect on AC, who still recalls the details of such abuse. Returning to the site of that abuse would only intensify its traumatic effects. Second, AC herself has suffered, and continues to suffer psychological harm as a result of Petitioner’s behavior. The record is replete with instances when Petitioner has sent AC alarming, and sometimes threatening text messages, including messages reprimanding AC for disrespecting and disobeying him and others insisting that her mother is a criminal who must be punished.  Incredibly, at one point Petitioner sent AC a message attaching a photo of a gun. These communications have made AC “stressed out,” and AC “feel[s] so uncomfortable when [Petitioner] starts talking about [Respondent] because ... you just shouldn’t talk about your other significant parents like that to your own child.” As Dr. Favaro testified, if AC is forced to return to Brazil, in close physical proximity to her father’s manipulative and alienating behavior, she will be overcome by “a sense of fear that [would] pervade[ ] all elements of [her] life,” akin to “being taken hostage.” Further, returning to that environment “would likely cause confusion, maladjustment and panic” and “would be detrimental to her adjustment and could expose her to catastrophically negative influences on her emotional health and development.” Accordingly, Respondent  established the grave risk of harm defense under the Hague Convention. 

Recent Hague Convention District Court Cases - Galaviz v Reyes, 2022 WL 620702 (W.D. Texas, 2022)

[Mexico][Article 20 defense established] [Grave risk of harm established][Petition denied]

[Under Article 20 the court need not order the return of a child if doing so would violate fundamental principles relating to the protection of human rights and fundamental freedoms. The Universal Declaration of Human Rights deems the right to an education a human right. Petitioner’s inability to be present with the children, as required so that they could attend school, effectively denied the two special needs children the fundamental right to an education. The denial of an education to in their most formative years utterly shocked the conscience of the court. Respondent established an affirmative defense to removal pursuant to Article 20.] [ Respondent established that prior to the retention, and while in the care of Petitioner, the children suffered serious abuse and neglect. Respondent put forth evidence demonstrating that while in the care of Petitioner: (1) the children’s physical and cognitive abilities declined; (2) the children did not attend school although they suffered severe special needs; (3) G.A.R.G. received no treatment for her special needs; (4) the children remained completely non-verbal; (5) the children’s healthcare needs were being neglected as the children were missing vaccines, and had unaddressed auditory, visual, and dental issues; (6) the children’s hygiene was being neglected; (6) the children’s ability to use the toilet regressed and the children reverted to using diapers; (7) the children had been physically abused; and (8) there was a strong suggestion the children experienced sexual abuse. The incidents of abuse and neglect collectively and the strong suggestion of sexual abuse constitute a grave risk of physical and psychological harm and an intolerable situation should the children return to Juarez.]

Recent Hague Convention District Court Cases - Colchester v. Lazaro, 2022 WL 621536 (W.D. Washington, 2022)

Colchester v. Lazaro, 2022 WL 621536 (W.D. Washington, 2022) 
[Spain] [After trial, the District Court  ordered S.L.C. returned to Spain.The Ninth Circuit reversed in October 2021. It held the Court abused its discretion by denying Respondent the opportunity to develop her defense of domestic abuse by having S.L.C. evaluated by a psychologist. Colchestr v. Lazaro, 16 F.4th 712, 723 (9th Cir. 2021).It also held the Court’s findings and conclusions were inadequate because they did not discuss Respondent’s defense and merely adopted Petitioner’s proposed findings verbatim. The Ninth Circuit found the trial had been “fundamentally unfair” and remanded for a new trial and the appointment of a psychologist to examine S.L.C. After S.L.C. returned to Spain, and while the appeal was pending, the Spanish custody order was modified, in July 2021. Under the current order, Petitioner had custody and Respondent has visitation rights, but visitation must occur in Spain. Respondent may not bring S.L.C. outside of Spain without Petitioner’s consent. Petitioner and S.L.C. resided in Barcelona. Respondent lived in Washington but goes to Spain for one week each month for her visitation. Petitioner argued this case was moot because the relief he sought in the petition, return of S.L.C. to Spain and his custody, has been achieved. The only relief available to Respondent, , is an order denying the petition by way of proving her grave-risk defense. The Court rejected his argument and set the case down for trial. The Ninth Circuit remanded for a psychological exam and trial. Dismissing this case as moot would be inconsistent with that mandate. The fact that S.L.C. returned to Spain does not alter the analysis, because the Ninth Circuit was well aware of that fact. In addition, dismissing based on mootness would render appellate review ineffective.]

 

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.