Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) [Attorney for Child Appointment]

 

In Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) on October 24, 2022, attorney Sarah Phillips of the law firm Simpson Thatcher & Bartlett, LLP filed a notice of appearance in this Hague Convention case on behalf of the minor children, R.A.L. and S.M.L. On October 25, 2022, the Court provisionally appointed Simpson Thatcher as counsel for the children, pending briefing by the parties. The Court observed that Petitioner generally objected to the appointment of an attorney for the children, as “the Mother has several attorneys on her team who are tasked of rendering proof” related to the defenses that pertain to the children, such as “grave risk of harm” and the children’s wishes, and “the defenses asserted by the Mother are identical (duplicative) if the issues that would need to be addressed by the Attorney for the Children.” The Court disagreed. Appointing independent counsel for the children in this case was “consistent” with the procedures “adopted by district courts in Hague Convention cases.” Johnson v. Johnson, No. 11 Civ. 37, 2011 WL 569876, at *2 (S.D.N.Y. Feb. 10, 2011); see also Sanchez v. R.G.L., 761 F.3d 495, 508 (5th Cir. 2014)) (quoting Chaffin v. Chaffin, 568 U.S. 165, 178 (2013)). This case presented complex and delicate issues that pertain to the children, and appointment of counsel was not only consistent with regular practice in Hague Convention cases, but is also warranted. This was particularly true where it is possible that one or more children may be questioned by the Court, whether in camera or otherwise. See McGovern v. McGovern, 58 A.D.3d 911, 915, 870 N.Y.S.2d 618, 622 (2009) The role of the children’s counsel here was quite limited. The scope of children’s counsel’s representation in a Hague Convention proceeding is limited to precisely [the] types of issues raised under the Convention. Counsel does not perform a best interests analysis or make custody-related recommendations. The role of the children’s counsel, would be to advance the children’s articulated wishes, assist the children in understanding the proceedings and to appear on their behalf as needed by the Court to assess the parties’ claims. For this limited purpose and for the needs of this case the appointment of counsel for the children was appropriate, rather than the appointment of a guardian ad litem. Out of an abundance of caution, the Court determined that it was appropriate to add court-appointed co-counsel with experience representing children in Hague Convention cases. The Court therefore appointed Professor Jennifer Baum, the Director of the Child Advocacy Clinic at St. John’s University School of Law, as co-counsel along with Simpson Thatcher for both minor children.

 

Dubikovskyy v Goun, --- F.4th ----, 2022 WL 17421509 (Eighth Circuit, 2022) [Switzerland] [Age and Maturity Exception] [Petition granted]

 

In Dubikovskyy v Goun, --- F.4th ----, 2022 WL 17421509 (Eighth Circuit, 2022)  Elena Goun violated her joint custody agreement with Vladyslav Dubikovskyy by traveling from Switzerland to the United States with their then-12-year-old daughter, M.D., in July 2020. Dubikovskyy filed a petition seeking M.D.’s return to Switzerland, pursuant to the Hague Convention. After an evidentiary hearing on the merits, the district court denied the petition based on the mature child defense, finding that M.D. was of sufficient age and maturity such that the court should take account of her views and that she objected to returning to Switzerland. The Eight Circuit reversed the judgment of the district court and remanded the case with directions to grant the petition for the return of M.D. under the Hague Convention on the Civil Aspects of International Child Abduction.

 Dubikovskyy, a citizen of Ukraine, and Goun, a citizen of Russia, married in December 2007 while living in California. They have one child together, M.D., who was born in June 2008 in California and is a United States citizen. In 2011, the family moved to Lausanne, Switzerland, where Goun had taken a job as a chemistry professor at a university, and became permanent Swiss residents. On July 28, 2020, Dubikovskyy learned Goun and M.D. had traveled to the United States. Two days later, he petitioned a Swiss court to order their return to Switzerland, and on August 4, the court ordered Goun to return M.D. to Switzerland in time for her to start the school year. On August 13, 2020, Goun petitioned a Swiss court to transfer M.D.’s residence to the United States on the grounds that M.D. had decided she wanted to stay in Missouri. The Swiss court denied the petition and characterized Goun’s actions as an illegal abduction. The court found that Goun violated the custody arrangement and granted Dubikovskyy the sole right to determine M.D.’s residence. The ruling was upheld on appeal on September 11, 2020. Dubikovskyy also initiated criminal proceedings against Goun in Switzerland, and there is a warrant for Goun’s arrest if she returns to Switzerland or any other country in the Schengen Area. Despite the Swiss court’s ruling, Goun and M.D. remained in Columbia, Missouri, with M.D.’s half-sister and Goun’s partner, and M.D. started attending middle school in Missouri when the 2020–21 school year began. On October 23, 2020, Dubikovskyy filed a petition with the United States District Court for the Western District of Missouri seeking return of M.D. to Switzerland pursuant to the Hague Convention, implemented through the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–11. Dubikovskyy alleged that M.D.’s country of habitual residence is Switzerland and that Goun’s actions constitute an unlawful retention. He asked that the court order M.D. be returned to Switzerland. In response, Goun asserted two affirmative defenses—that there is a grave risk that M.D. would be exposed to physical or psychological harm or otherwise be in an intolerable situation if she returned to Switzerland (the grave risk of harm defense), and that M.D. objects to being returned and has attained an age and degree of maturity such that the court should take account of her views (the mature child defense).

 

On December 2, 2020, the district court held an evidentiary hearing on the merits of the petition. Two days after the evidentiary hearing, the district court, pursuant to Federal Rule of Evidence 706,³ appointed psychologist Dr. James Straub to “provide information about the maturity and independence of [M.D.]” because the court was concerned that M.D. may have been unduly influenced by her mother when she was removed from Switzerland. Dubikovskyy objected to Dr. Straub’s appointment. Notwithstanding that objection, Dr. Straub examined M.D. and submitted a written report to the court on December 14, 2020. After receiving the report, the district court again interviewed M.D. in camera, this time outside the presence of counsel. On January 7, 2021, the district court denied Dubikovskyy’s petition, relying on the mature child defense. The district court found that M.D. was “sufficiently mature and independent [such that the court could] account for her views” and that M.D. had “stated an objection to returning to Switzerland,” with reasons similar to those “an adult might consider when deciding where to live, i.e.[,] family responsibilities, comfort, and opportunities to pursue goals that are meaningful and inspiring to them.” The district court noted M.D. “was reluctant to use the word objection because she did not want to make her father sad,” but nonetheless concluded that “there is no doubt based on her words and expressions that she does not want to return to Switzerland.” The court further explained it was “confident M.D.’s decision [was] made independently of either parent’s influence.” On February 5, 2021, Dubikovskyy appealed.⁴

 

The Eighth Circuit found that there was no dispute that Dubikovskyy has established a prima facie case; the sole issue on appeal is whether the district court erred by applying one of the narrow exceptions—the mature child defense—to deny his petition. The mature child defense comes from Article 13 of the Hague Convention, which provides that a judicial or administrative authority may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” For the mature child defense to apply, the respondent must establish by a preponderance of the evidence that (1) the child has attained an age and degree of maturity at which it is appropriate to take account of her views, and (2) the child objects to being returned. Custodio, 842 F.3d at 1089 (citing Hague Convention art. 13); see also 22 U.S.C. § 9003(e)(2)(B). If a child is found to be mature, the reasons the child objects to being returned are immaterial. See Custodio, 842 F.3d at 1091 (adopting the rule from Rodriguez, 817 F.3d at 475–76, that the mature child defense may apply “whatever the reason for the child’s objection”). The Court construes the mature child defense narrowly. Id., 842 F.3d at 1089. A stricter standard also applies when a child’s views are the sole reason for denying repatriation. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007).

 

          On appeal, Dubikovskyy did not contest the district court’s finding that M.D. had attained an age and degree of maturity at which it is appropriate to take account of her views. Rather, Dubikovskyy argued that the district court erred at the second step by accepting M.D.’s preference for staying in Missouri, rather than requiring an objection to returning to Switzerland. Indeed, “[a] preference is not an objection,” and there is a “substantive difference between preferring to live in one of two countries ... and affirmatively objecting to returning to one country.” Rodriguez, 817 F.3d at 476–77. Under the Hague Convention, a child’s preference or “generalized desire” to remain in the United States is insufficient to invoke the narrow mature child exception. See Tsai-Yi Yang, 499 F.3d at 279. Instead, the child’s testimony must include “particularized objections” to returning to the former country of residence. Id. The district court recognized the important distinction between a preference and an objection, citing a dictionary definition for objection, “a reason, ground, or cause for expressing opposition,” and noting that an objection “connotes more than a preference for the alternative.” M.D. testified that she “would love to live [in Missouri] because [she has a] lot of things here, and it would be really great for [her] dad to come [to Missouri] for vacation.” When asked about returning to Switzerland, however, she said that she thought she would be “okay,” and that she was not afraid to go back there. But she added that she would be “unhappy” if she had to move to Switzerland, and she gave several reasons: she would not be able to attend the same school as her close friend who lived in a different Swiss town; she could not bring her dog with her; she would miss her mother, her half-sister, and her friends in Missouri; and it was more difficult to ride horses in Switzerland.

 

In an effort to determine whether M.D. truly “objected” to returning to Switzerland, the district court asked her if she knew the meaning of the words “objection” and “preference.” M.D., speaking in a second language,⁵ said she did not understand “object.” The court tried to explain the difference between the two words by offering M.D. some examples: “I object to cleaning the bathroom.” “I object to my little sister yelling in my ears.” “Do you object to getting up early in the morning to go to school?” The court continued by saying that “[a]n objection is something you don’t want. You’re displeased. One is stronger than the other.” When the court then asked M.D. whether she “objected” to returning to Switzerland or whether she simply “preferred” one location over the other, M.D. was equivocal. Her most complete answer was: “I would say it’s, like, middle, but, yeah. Maybe I object — I don’t know. ... I mean, I — I’m kind of in the middle, but I think I — I’m more on the object — object side. I don’t know. Objection. Yeah.” The court asked M.D. why she hesitated in her answer, and M.D. responded, “I don’t know. It’s, like, hard ....”

 

The Eighth Circuit recognized the challenges that come with deciphering the difference between an objection and a preference in a child’s testimony. If given two choices, country A and country B, an objection to living in A will almost always (although not invariably) indicate a preference for living in B. But a preference to live in B does not necessarily indicate an objection to living in A. In this case, M.D.’s testimony failed to show by a preponderance of the evidence that she “objected” to returning to Switzerland. Rather, when asked why she would be “unhappy,” or “dissatisfied” if she had to go back to Switzerland, M.D. consistently responded with reasons why she preferred to stay in Missouri.⁶ As to the district court’s discussion of M.D.’s above-average intelligence, strong personality, and well-developed sense of responsibility for her younger sibling and the feelings of others, such findings are relevant to whether the child has reached the age and maturity at which it is appropriate to consider her views on repatriation. But these observations do not speak to whether M.D. has in fact lodged an objection to being returned to Switzerland. Here, M.D.’s desire to remain in the United States was not coupled with a particularized objection to returning to Switzerland. As a result, it was insufficient to meet the strict standard that applies when the mature child defense is the sole grounds for denying an abducted child’s return. See Tsai-Yi Yang, 499 F.3d at 278. Because M.D. did not express a particularized objection to returning to Switzerland, instead describing a preference—for a variety of understandable reasons—to remain in the United States, the district court’s finding that M.D.’s statements constituted an objection within the meaning of the mature child defense was clearly erroneous. Custodio, 842 F.3d at 1089 (whether a mature child has objected to the return to her country of habitual residence is reviewed for clear error).

Recent Hague Convention District Court Cases - Soulier v Matsumoto, 2022 WL 17250549 (D. New Jersey, 2022)

 

[Belgium][Necessary Expenses] [Granted] 

In Soulier v Matsumoto, 2022 WL 17250549 (D. New Jersey, 2022) on July 8, 2022, the district court granted Petitioner’s application, and ordered that the Children be returned to Belgium, and also granted Petitioner leave to file this motion for attorney’s fees and costs. The Court granted the Petitioners motion for Counsel fees and Costs but reduced the amount requested. The  district court pointed out that in an action brought under section 9003 ... shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3); see also Cillikova v. Cillik, Civ. No. 15-2823, 2016 WL 541134, at *3 (D.N.J. Feb. 9, 2016). Therefore, it is presumed that a prevailing ICARA petitioner will be awarded fees, unless the respondent establishes that the award would be clearly inappropriate. To determine whether the award demanded by the prevailing party would be clearly inappropriate, courts assess the opposing party’s financial circumstances, and whether such an award would significantly impair that party’s ability to provide for the child. See id. at *5;³ Hirts v. Hirts, 152 F. App’x 137, 139 (3d Cir. 2005); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004). Courts also consider a respondent’s basis for removing and/or retaining the child. See, e.g., Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013); Clarke v. Clarke, Civ. No. 08-690, 2008 WL 5191682, at *3 (E.D. Pa. Dec. 11, 2008) District courts also may apply equitable principles in determining such fees. See Ozaltin, 708 F.3d at 375. The Court reduces the block-billed entries for use of the vague “review of file” description, but otherwise concludes that the block-billed entries were  reasonable in terms of the time expended on the tasks performed. It also agreed with  Respondent that Petitioner’s counsel should not be allowed to charge his partner rate for tasks that non-lawyers could have performed.. “A claim by a lawyer for maximum rates for ... tasks [that can be] performed by administrative assistants, paralegals, or secretaries” is unreasonable. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). After accounting for the reductions via the lodestar analysis above, the Petitioner’s attorney’s fees were reduced to $76,620.00. The court rejected respondents argument that she had a reasonable basis for retaining the Children. However, it reduced the attorney’s fees by 20% because while Respondent was employed and lived with her parents through the litigation, she has few assets. Second, taking care of the Children may require that Respondent travel to Europe, or the Children visit the United States. Also, it was not apparent to the Court whether Respondent will have any financial obligations related to the Children after the parties resolve their custody dispute. A reduction was warranted in the amount of $15,324.00 (20% of the Court’s reduced total from its analysis. The Court granted Petitioner’s motion for attorney’s fees and costs in the reduced amount of $65,821.54, consisting of: $61,296.00 in attorney’s fees; $2,406.75 in travel expenses; and $2,118.79 in costs.

 

 

Recent Hague Convention District Court Cases - Esparza v Nares, 2022 WL 17724414 ( S.D. Texas, 2022)

 

[Mexico] [Age and Maturity exception] [Petition granted]

In Esparza v Nares, 2022 WL 17724414 ( S.D. Texas, 2022) the District Court granted the petition for the return of the two minor children to Mexico. Petitioner and Respondent were Mexican. During their marriage, Esparza and Nares had two children: M.G.R.D. and V.N.R.D. The Children were both Mexican citizens, having been born in Nuevo Leon, Mexico. They resided there for the majority of their lives. In April  2021, Esparza and Nares divorced. As part of their divorce, the parties, entered into a divorce decree, that governs the legal custody arrangement of the Children. Under the decree, that was agreed to by both sides, the parents maintained joint legal custody of the Children. Pursuant to that decree, Esparza was permitted to see and live with his daughters from 11:00 a.m. to 8:00 p.m. on Saturdays and from 2:00 p.m. to 9:00 p.m. on Wednesdays. At all other times, the Children remained with Nares. The divorce agreement also specified how the parents were to travel with the Children. Under that agreement, each parent was allowed to travel with the Children, but travel was limited to 15 days per trip and the parties were required to inform one another about the trips. In May 2022, Nares, without permission or prior notice to Esparza, left Nueva Leon and brought the two Children to Texas. The Children remained in Texas ever since. The only issue for the Court to decide was whether the Hague Convention’s Article 13 age and maturity exception applied. It states, “[t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague International Child Abduction Convention; 51 Fed. Reg.at 10494-01, Art. 13. The party opposing the child’s return must establish the child’s maturity by a preponderance of the evidence. England v. England, 234 F.3d 268, 272 (5th Cir. 2000). “[W]hether a child is of sufficient age and maturity is a fact-intensive process,” and the Fifth Circuit has “declined to hold, as a matter of law, that any particular age is sufficient of insufficient to meet the defense.” Dietz v. Dietz, 349 F. App’x 930, 934 (5th Cir. 2009). The  age and maturity exception is to be applied narrowly. The two Children here were  eleven and six years old. Neither speaks English; consequently, the Court’s interpreter translated. The girls were interviewed separately so the Court could evaluate them separately. During their respective interviews, both kept their eye cast downwards and spoke in a quiet manner. Both Children only spoke a couple of words at a time. For the most part, they were unable to explain their answers, often sticking to yes, no, I don’t know or one word answers. The case shared similarities with Dietz v. Dietz. In the Dietz case, the court held a 13-year-old was not mature under the Hague Convention. Dietz, 349 F. App’x at 934. The court noted that he was “highly defensive,... he spoke in a short and cut manner in a low monotone and kept his eyes cast downward.” The court also pointed to the report of a child psychologist who examined the boy and determine despite showing high average to superior intelligence, he displayed only average verbal skills, and performed poorly in school. Id. Also in that case, the Court did not credit 9-year-old Angus’s preference because it found that his views were “unduly influenced by his father.” The Court acknowledged that both Children voiced a preference for remaining in Texas with their mother, but this testimony, even when one gives due consideration to the circumstances surrounding the questioning, was not sufficient to prove by a preponderance of the evidence that the Children were mature enough for the Court to appropriately take into account their views under the age and maturity exception. Rodriguez v. Yanez, 817 F.3d 466, 476 (5th Cir. 2016) (requiring an “[o]bject[tion] not a mere preference.”). In so holding, this Court considered their answers, but also their demeanor, their attention to what was being asked, and the manner of their responses. The totality of the evidence made it clear that neither girl demonstrated the age and maturity necessary for the Court to take their views into account. Since the Court found the Children were not of sufficient age and maturity, and ordered the two minor children be returned to Nuevo Leon, Mexico.

 

 

 

Poix v Santana, 2022 WL 16751915 ( S.D. New York, 2022)[Dominican Republic] [Petition granted] [ Temporary stay granted]

 

In Poix v Santana,  2022 WL 16751915( S.D. New York, 2022) on October 17, 2022, the Court granted  Petitioner Joseph Etienne’s Petition for the return of his children, M.G.E. and A.F.E., to the Dominican Republic. Respondent filed a notice of appeal and a motion to stay its order for the return of the children pending appeal. The District Court observed that courts should apply the four traditional stay factors in considering whether to stay a return order: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Chafin v. Chafin, 568 U.S. 165, 179 (2013) “[A] district court’s application of these four factors to its own return order under the Hague Convention will rarely augur in favor of issuing a stay.” Hofmann v. Sender, No. 12 Civ. 8104 (KMK), 2012 WL 8466673, at *1 (S.D.N.Y. Dec 20, 2012); see also Lukic v. Elezovic, No. 20 Civ. 3110 (ARR) (LB), 2021 WL 804384, at *3 (E.D.N.Y. Mar. 3, 2021) (“[S]tays pending appeal of Hague Convention return orders ... are heavily disfavored.”; Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y. 2010) (“Staying the return of a child in an action under the Convention should hardly be a matter of course.” Three of the four factors clearly favored denying a stay.  Nor did the remaining factor—irreparable harm to the moving party—favor granting a stay. The return of the children would  not moot Respondent’s appeal to the Second Circuit, see Chafin, 568 U.S. at 180, and were the Court’s decision to be reversed she should be able to bring the children back to the United States, since she retained temporary guardianship of them in the Dominican Republic. Nonetheless, although staying return is ordinarily disfavored in the context of Hague Convention cases, district courts in this Circuit often grant brief, temporary stays to enable respondents to seek emergency relief from the Court of Appeals for the Second Circuit before a child is returned. See, e.g., In re E.Z., No. 21 Civ. 6524 (MKV), 2021 WL 5106637, at *26 (S.D.N.Y. Nov. 2, 2021); Lukic, 2021 WL 804384, at *4; Grano v. Martin, 443 F. Supp. 3d 510, 545 (S.D.N.Y. 2020); Souratgar v. Fair, No. 12 Civ. 7797 (PKC), 2012 WL 6700214, at *18 (S.D.N.Y. Dec. 26, 2012); Hofmann, 2012 WL 8466673, at *2; Haimdas, 720 F. Supp. 2d at 211-12. And the Court of Appeals has indicated that it finds such brief delays helpful. See Diorinou v. Mezitis, 237 F.3d 133, 138 (2d Cir. 2001) (“The District Court helpfully stayed its order until November 30 to permit Mezitis to seek a stay pending appeal from this Court.”). For that reason, the Court granted a brief stay of one week of its October 17, 2022 order that Respondent return M.G.E. and A.F.E. to the Dominican Republic, so that Respondent may seek emergency relief from the Court of Appeals.

Poix v Santana, 2022 WL 9847347 ( S.D. New York, 2022) [Dominican Republic] [Petition granted] [Habitual residence][Grave risk of harm not established]

In Poix v Santana, 2022 WL 9847347 ( S.D. New York, 2022) the Court granted the Petition and ordered the children M.G.E. and A.F.E., returned to the Dominican Republic.

 Petitioner, who was born in Haiti in 1968, was a citizen of the Dominican Republic and Haiti, while Respondent was born in the Dominican Republic in 1986. The two met in 2013 and were married in the Dominican Republic in April 2014. Following their marriage, they resided in Santo Domingo in the Dominican Republic. They had two children. M.G.E was born in Manhattan in January 2016, and A.F.E. was born in Manhattan in October 2017. Soon after each child was born in the United States, thereby securing U.S. citizenship, the Respondent and the child returned to the Dominican Republic, In April 2020, the parties separated, and the Respondent and the children moved out of the family’s joint residence. The parties subsequently were divorced by mutual consent in December 2020. At some point around the end of July 2021, Respondent moved with the children from Santo Domingo to Santiago, the city in the Dominican Republic where her family resided. Then, on August 22, 2021, the Respondent and the children traveled from the Dominican Republic to the United States. They currently resided in New York City, where the Respondent worked as a teacher. Petitioner realized that Respondent and the children had left the Dominican Republic for the United States at some point in September 2021. 

 

The Court found that the evidence at trial established that, aside from their births, M.G.E. and A.F.E. lived in the Dominican Republic until the Respondent removed them to the United States in August 2021. The testimony further revealed that, while married, Petitioner and Respondent both intended the Dominican Republic to be the children’s habitual residence. Dominican family law grants “[p]arental authority ... equally to the father and mother.”  Dominican Republic Law 136-03, art. 67 That parental authority ends when a child reaches adulthood, marries, or dies, or when it is terminated by a court. The children are not adults, they have not married, and they have not died, nor has Petitioner’s parental authority been terminated by a court. Respondent was granted temporary guardianship of the children in the decree of divorce that dissolved their marriage. But an award of temporary guardianship to one parent does not constitute an order terminating the other’s parental authority. Thus, Petitioner retained parental authority over the children after his divorce from Respondent, including at the point when she removed them from the Dominican Republic to the United States. Under Dominican law, Petitioner’s parental authority grants him a ne exeat right to prevent the children from being taken from the country without his consent: “If one of the parents intends to leave the country with one of their sons or daughters, they may not do so without the written consent of the other [parent].” Dominican Republic Law 136-03, art. 204; Respondent herself acknowledged to Petitioner when renewing the children’s passports that she would need his consent to take them out of the country. Because she removed the children from the Dominican Republic without Petitioner’s written consent, Respondent violated Petitioner’s ne exeat right under Dominican family law. And since a ne exeat right is a right of custody under the Convention, see Abbott, 560 U.S. at 10, the removal was “in breach of rights of custody” under Article 3 of the Convention, as Respondent conceded, The evidence submitted at trial easily satisfied Petitioner’s burden of showing that his involvement with the children prior to their removal constituted the exercise of his rights of custody. After the separation, he saw them “[a]t least once a week on a regular basis.”  Beyond his in-person interactions with the children, Petitioner further exercised his rights of custody by helping with the children’s expenses and participating in childcare—as Respondent herself acknowledged at trial. With all three elements under the Convention established, see Gitter, 396 F.3d at 130-31, the Court concluded that the children were wrongfully removed from the Dominican Republic for purposes of the Convention. 

The Respondent argued that Petitioner ceased to exercise his rights of custody during the months immediately before the children’s removal from the Dominican Republic. During that period, she argued, he did not visit them in person, he refused to communicate with them over telephone or video chat, and he refused to visit them in person by traveling from Santo Domingo, where he lived, to Santiago, where Respondent was living with the children. The parties do not dispute those facts. Petitioner did not see the children in person from late June or early July 2021 until their removal (and, indeed, has not seen them since). During that period, Petitioner acknowledged, he refused to travel to Santiago even though Respondent had said she would let him see the children there. And when Respondent told him that she was willing to permit him to communicate with the children only via telephone or video chat, he responded not by using those methods of communication but rather by telling her that her offer was “unacceptable.” The court noted that in some circumstances, a parent’s cessation of communications or in-person visits with a child might suggest that he stopped exercising his rights of custody. But while Petitioner did not actually communicate with the children or see them in person after around late June 2021, the evidence at trial showed that he attempted to maintain contact with them in July and August 2021 before they left the Dominican Republic for the United States. The evidence established that Petitioner did attempt to maintain regular contact with the children between June 2021 and their departure from the Dominican Republic in August 2021: he repeatedly asked Respondent to allow him to visit them in person, and the Court concludes that he would have continued to maintain contact with them had those requests been granted. Thus, although he did not visit them in person after June 2021, in these circumstances that fact did not reflect a failure to exercise rights of custody at the time of the removal. Accordingly, Petitioner established at trial by a preponderance of the evidence that he was exercising rights of custody at the time the children were removed from the Dominican Republic. Consequently, their removal was wrongful under Article 3 of the Convention. Furthermore, because Respondent had not produced sufficient evidence to show that Petitioner “was not actually exercising the custody rights at the time of removal,” the exception established by Article 13(a) of the Convention cannot apply.

 

The Court rejected the Respondent's grave risk defense under Article 13(b) of the Convention, which permits a court not to return a child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention art. 13(b). While Respondent did present some evidence in support of her Article 13(b) defense, that evidence was insufficient to show it highly probable or reasonably certain that returning the children would expose them to a grave risk of physical or psychological harm. Consequently, Respondent did not show that Article 13(b) permits this Court to decline to order the return of the children to the Dominican Republic.

 

Respondent’s counsel argued at trial that returning the children to the Dominican Republic would risk exposing them to physical violence from Petitioner. Tr. at 239:20-23. Without a doubt, violence directed at a child could qualify as severe harm under Article 13(b). See Ermini v. Vittori, 758 F.3d 153, 164-65 (2d Cir. 2014) (finding a “sustained pattern of physical abuse” on the part of a petitioner sufficient for an Article 13(b) defense).  The primary event Respondent cited as evidence of that risk is the incident of spousal violence, that she alleged took place while she was pregnant with A.F.E. As described, the incident was disturbing and abhorrent. But even accepting Respondent’s characterization as accurate, it would provide only weak evidence in support of an Article 13(b) defense, however poorly the incident might otherwise reflect upon Petitioner. For even if it demonstrates that Respondent might have faced a grave risk of further violence were she to have remained in a relationship with Petitioner, “[t]he Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.” Souratgar, 720 F.3d at 104 (emphasis added). That is, spousal violence bears on Respondent’s Article 13(b) defense only to the extent that it identifies a grave risk of violence that the children would face if returned. Certainly, spousal violence can sometimes support a finding that such a risk to the children exists if it “show[s] a sustained pattern of physical abuse and/or a propensity for violent abuse.” But a single incident of violence does not suffice to demonstrate a sustained pattern of or propensity for abuse. “[L]imited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Indeed, the Second Circuit has affirmed an order for a child’s return despite evidence of repeated spousal violence; because given “the lack of any indicia of ill-will on the part of [the petitioner] toward [the child], and contrary credited evidence of a loving father-son relationship,” the spousal violence was insufficient to establish a “clear and convincing showing in the record that the boy faces a grave risk of harm from his father,” id. at 106. And if repeated spousal violence does not suffice for an Article 13(b) defense, then the single incident Respondent alleged cannot suffice either, especially when combined with the absence of any evidence that Petitioner ever abused the children and the ample evidence of his loving relationship with them.

 

To support her Article 13(b) defense, Respondent also pointed to the social gathering in Puerto Plata in 2017 that she, Petitioner, and M.G.E. attended. At that gathering, some friends of Petitioner’s were smoking marijuana, causing Respondent to feel unsafe and ultimately to leave with M.G.E. Subsequently, she was forced to make her way home by herself via taxi and public transportation, despite having very little cash on her. Petitioner’s conduct on this occasion, while perhaps not exemplary, did not amount to clear and convincing evidence that returning the children would expose them to a grave risk of physical or psychological harm. An Article 13(b) defense may succeed based on the risk that a petitioner himself will cause harm “in cases of serious abuse or neglect.” Souratgar, 720 F.3d at 103  

The Court rejected the argument that Petitioner’s refusal to contact the children via telephone or video chat after they were removed from the Dominican Republic justifies a finding that returning them would create a grave risk because his failure to contact the children demonstrates his lack of empathy for them and disregard for their wellbeing. 

 The remaining evidence Respondent advanced to sustain her Article 13(b) defense largely concerned Petitioner’s treatment of her during their marriage. Respondent testified that Petitioner misinformed her about the number of children he had and about the nature of his relationships with some of them; he began drinking during the marriage; he would not let her visit her family for the holidays; he misled her about his faith,  he was unfaithful to her after she gave birth to M.G.E.; he verbally abused her,  he used his control of the family’s finances to control her; and he argued with her in public around the couple’s friends. As a result, both Respondent and her witnesses testified that she was depressed and unhappy in the marriage. Article 13(b) does not establish an exception to return based on the relationship between the parents; rather, it permits children not to be returned only when there is a grave risk of harm to the children. Thus, the reasons for the breakdown of the parties’ marriage are not relevant to the Article 13(b) analysis unless they establish a very high likelihood that the children will suffer severe harm if they are returned. And while this evidence may establish Petitioner’s unsuitability to be married to Respondent, Respondent advanced no argument for why it showed that the children will likely suffer harm if they are returned to the Dominican Republic.

 

Respondent did not establish by clear and convincing evidence, the grave risk that returning the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. See Hague Convention art. 13(b).  

Recent Hague Convention District Court Cases - Mejia Rodriguez v. Molina, --- F.Supp.3d ----, 2022 WL 4597455 ( S.D. Iowa, 2022)

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

In Mejia Rodriguez v. Molina, --- F.Supp.3d ----, 2022 WL 4597455 ( S.D. Iowa, 2022) minor Child was born in Honduras to Eny Adamy Mejia Rodriguez and Dennys Antonio Reyes Molina. She lived with both parents for the first months of her life until they separated. Afterwards, she lived with Petitioner full-time while Respondent and Respondent’s family remained involved in her life. Minor Child lived with Petitioner from their separation until Respondent brought her to the United States. Court heard testimony from several people explaining how Petitioner struck Minor Child as punishment for misbehavior. The period of abuse started when the Minor Child was two and continued until she was removed from Honduras at the age of five. Respondent testified that Petitioner used physical violence to punish Minor Child for her behavior. She used a broom to strike the child for being energetic at the age of two. She repeatedly utilized either her fist or the palm of her hand to hit the Minor Child on the back as punishment, which started at the age of four. On another occasion, she repeatedly hit the Minor Child with a belt, leaving significant bruises, after she urinated in her bed. This caused the child to be so scared that she urinated in the bed again. Respondent’s sister, Luz Marina Reyes Molina, testified to Petitioner’s history of striking the minor child as well. She stated Petitioner once hit the child in her home when Petitioner and the child visited. Specifically, Petitioner punched the child in the back for being disrespectful. She recalled Minor Child would visit her house and tell her something like “mom hit me” during the visits. Respondent’s other sister, Lillian Maritza Reyes Molina, also witnessed Petitioner strike the child during a visit. She observed an instance of Petitioner hitting the Minor Child as punishment for her behavior. Petitioner kicked her other child, the child’s older brother, during the same visit. Beyond this incident, she stated there were two other instances where Petitioner was intoxicated and struck the child, although the timeframe of these incidents was unclear.

The parties did not dispute that Petitioner  established a prima facie case of improper removal under the Convention. The court found that Respondent had not established the applicability of a grave risk exception by clear and convincing evidence. The Petition for Return was granted. The Court held that Grave risk constitutes an affirmative defense when there will likely be “serious abuse or neglect” upon return. The key inquiry is “the gravity of risk” facing the child. This analysis focuses on “the probability of harm, but also the magnitude of the harm if the probability materializes. ”A court must cite “specific evidence of potential harm” to a child as part of the inquiry.  There are several factors to consider when examining the grave risk of serious abuse or neglect in the context of physical abuse. The first consideration is if a parent abused their children. The second factor is a parent’s ability to manage their anger. The third factor is spousal abuse. The Court found the record did not show by clear and convincing evidence that Minor Child would face a similarly grave risk of serious harm upon return to Honduras. The Court held the evidence was insufficient to grant Respondent the relief he sought. 

Recent Hague Convention District Court Cases - Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022).

 

[Germany][Petition granted] [Request for third Stay denied]

 In Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022) on August 22, 2022, the Court granted Radu’s Petition for Return of Children to Germany. Respondent filed a Notice of Appeal and a Motion to Stay the Court’s Third Return Order pending the appeal . The Court held that in considering whether to stay a return order in a Hague Convention case, courts consider the traditional stay factors: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably inured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 568 U.S. 165, 179 (2013). The Court did not find that Respondent had made a strong showing that she is likely to succeed on the merits of her appeal. The second factor weighed in favor of a stay because returning to Germany while Respondent’s appeal was pending will be disruptive to Respondent and the children. See Chafin, 568 U.S. at 178 (“shuttling children back and forth between parents and across international borders may be detrimental to those children”). The third factor weighed strongly against a stay, even though Respondent’s appeal had been expedited. Petitioner has joint custody rights under German law and yet, as a result of Respondent’s actions, he had been unable to see his children in over three years. The testimony and evidence before the Court indicated that Respondent interfered with Petitioner’s ability to contact his children. Respondent’s interference with Petitioner’s ability to see and contact his children has and continues to cause substantial and irreparable injury to Petitioner—and, appears to be causing injury to O.S.R., as well. The fourth factor was neutral, as the public interest favors both the prompt return of wrongfully removed children and the safeguarding of the well-being of children. On balance, the relevant factors weighed against granting a stay pending resolution of Respondent’s appeal. However, the Court granted Respondent’s alternative request to temporarily stay its Third Return Order until the Ninth Circuit Court of Appeals rules on a timely filed motion to stay.

 

Recent Hague Convention District Court Cases - Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022)

 Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022)

[Japan] [Petition granted] [Habitual residence] [Grave risk of harm not established][Consent or acquiescence not established]

 

In Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022) the Petitioner demonstrated, by a preponderance of the evidence, that Japan was the habitual residence of L.T. immediately prior to her removal from Japan on October 15, 2021. There was significant evidence that L.T. acclimatized to Japan during her time there. Although the evidence regarding the intentions of L.T.’s parents was conflicting, it generally supported a finding that the parents had the settled purpose of creating a home in Japan, perhaps not forever, but for a significant period of time.

As of the time L.T. was removed from Japan, L.T.’s place of habitual residence was Japan. The burden thus shifted to Respondent to establish an affirmative defense to L.T.’s prompt return.

 In her Answer, Respondent asserted two affirmative defenses: (1) that returning L.T. to Japan would expose L.T. to a grave risk of physical or psychological harm; and (2) that Petitioner consented to and acquiesced in Respondent’s retaining L.T. in the United States. In her Answer, Respondent alleged that Petitioner had “abused, isolated, controlled, and assaulted Respondent and the Minor Child, both physically and verbally,” and that “[t]he Minor Child has expressed fear of Petitioner and is afraid of further harm at the hands of Petitioner.” Respondent also alleged that she and the child were held in Japan against their will for twenty months, and that Petitioner “told Respondent that if she ever tried to leave Petitioner’s control, he would kill her.” When she testified at trial, Respondent offered no evidence in support of most of these allegations. The Court found no evidence, let alone clear and convincing evidence, that returning L.T. to Japan would subject L.T. to a grave risk of physical or psychological harm.  In her Answer, Respondent alleged that prior to leaving Japan, she informed Petitioner of her intent to come home to the United States, that Petitioner was aware at all times that Respondent had left Japan with the child for the United States and was in continuous contact with Respondent; and that Petitioner did not make any effort to secure the return of the child until 180 days had passed after the removal and until over 150 days after Respondent filed divorce proceedings. Respondent did not address this defense in her trial brief or in the proposed memorandum opinion she filed after trial. Based on the evidence presented at trial, the Court found that Respondent had not demonstrated, by a preponderance of the evidence, either that Petitioner consented to the removal of L.T. before it occurred or that Petitioner acquiesced in the removal after it occurred.

Recent Hague Convention District Court Cases - Homer v Homer, 2022 WL 4290465 (S.D. Texas, 2022)

 

Homer v Homer, 2022 WL 4290465 (S.D. Texas, 2022)

[Sweden] [Motion for Attorney’s Fees, Expenses and Costs] granted in part and denied in part.

The Court awarded Derek $32,780 for attorney’s fees and $5,205.65 for expenses. Derek filed motion to recover his attorney’s fees, expenses and costs incurred for the return of S.C.H. in the amount o of $40,437 for Derek’s attorney’s fees and $16,198.22 for Derek’s costs and expenses in the United States and Sweden.  The Court observed that he respondent, not the movant. bears the burden of demonstrating that a fee award is clearly inappropriate. Ebele’s response failed to cite any case interpreting or applying the statute in support of an argument that there was an equitable basis for reducing the award of fees and costs. Ebele’s response did  not provide any evidence regarding her financial condition, employment status or other evidence that courts have used as an equitable basis to reduce an award. Instead, Ebele globally argued that the total amount of fees and costs requested are “patently not reasonable.  

Recent Hague Convention District Court Cases - Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022)

 

[Germany][Petition granted][Grave risk of Harm][Ameliorative measures]

 In  Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022) on December 30, 2021, the Court granted Petitioner Bogdan Radu’s Petition for Return of Children to Germany. Respondent appealed and the Ninth Circuit Court of Appeals remanded for the Court to reconsider its ruling in light of Golan v. Saada, __ U.S. __, 142 S. Ct. 1880 (2022). The Court held a further evidentiary hearing and contacted the United States Department of State for assistance. On December 30, 2021, the Court again ordered Respondent to return O.S.R. and M.S.R. to Germany. The Court recognized that this is “a borderline case whether an Article 13(b) finding is warranted.” The Court further found that the alternative remedy of ordering Respondent to return with O.S.R. and M.S.R. to Germany would ameliorate the risk of psychological harm to O.S.R. and M.S.R. given the unique circumstances of this case, including Germany’s child protection services, the ability of a German court to prioritize child custody matters for expedited processing pursuant to Section 155 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, Respondent’s joint custody rights under German law, Respondent’s ability to stay in Germany for at least three months, and Petitioner’s commitment to paying, if necessary, for the airfare of O.S.R. and M.S.R., as well as rent for a separate residence for Respondent and the children until a German court makes a custody determination. On June 15, 2022, the United States Supreme Court issued Golan, holding that “consideration of ameliorative measures” after an Article 13(b) finding is not required under the Convention but, rather, “is within a district court’s discretion.” 142 S. Ct. at 1893. The Supreme Court also clarified that a district court’s consideration of ameliorative measures (1) “must prioritize the child’s physical and psychological safety,” (2) must “not usurp the role of the court that will adjudicate the underlying custody dispute,” and (3) “must accord with the Convention’s requirement that the courts act expeditiously in proceedings for the return of children.” “[A] district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings.”  The Court, in its discretion, found that consideration of ameliorative measures was appropriate in this case,  and the ameliorative measure set forth in its December 30, 2021 Order—namely, that Respondent return with O.S.R. and M.S.R. to Germany—satisfied the requirements outlined in Golan.

Recent Hague Convention District Court Cases - Ruiz v Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)

 

[Colombia] [Petition granted]

 

In Ruiz v Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)the District Court found that  in 2014, Petitioner was deported to Colombia. Sometime in 2015, Respondent moved with K.P.C.A. to Colombia to live with the Petitioner. Though Petitioner and Respondent never married, the family lived together in Medellín, Colombia from sometime in 2015 until May 28, 2021.Colombian law requires that, before a child leaves Colombia with one parent or a third party, the parent remaining in Colombia sign a “Permiso Para Salir Del Pais.” This document authorizes the child to be out of the country for the dates specified in the document. Petitioner signed and notarized a Permiso Para Salir Del Pais authorizing K.P.C.A. to travel to the United States from May 28, 2021 through June 17, 2021. At the point that Petitioner signed the travel authorization, it was clear that the trip was to be no more than three-weeks. However, at some point between May 28 and June 17, Respondent decided not to return as planned. She cancelled her ticket and stayed in the United States with K.P.C.A. In October 2021, it became clear to Petitioner that Respondent had no intentions of ever returning. This petition was filed on June 9, 2022 pursuant to Article 3 of the Convention. The Court found that the retention of K.P.C.A. in the United States as of June 18, 2021 was wrongful. It further finds that Respondent did not meet her burden of proving an affirmative defense under the Convention. K.P.C.A. did not articulate a particularized objection to returning to Colombia sufficient to meet the mature-child-objection defense. Respondent failed to meet her burden as to this affirmative defense.  Respondent failed to meet her burden concerning consent. Nor was there evidence presented of formal acquiescence, such as testimony in a judicial proceeding or a convincing written renunciation of rights. Respondent raised the well-settled defense, but the Court found that it is not available to her as a matter of law since Petitioner filed his Petition within one year of the wrongful retention. Pursuant to Article 13(b) of the Convention, courts are not required to order a child to return where “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Respondent bears the burden of proving this defense by clear and convincing evidence. Respondent put forth minimal evidence in support. She submitted the United States State Department’s travel advisory for Colombia as well as some evidence that Petitioner had previous issues with drugs and alcohol. Both Respondent and K.P.C.A. stated that they had never witnessed any crime or act of terrorism in Colombia, or any reasonable risk of harm at the hands of Petitioner. This did not meet the standard to show that K.P.C.A. would be in a grave risk of harm if returned to Colombia.