Hernandez v Erazo, 2023 WL 3175471 (5th Cir.,2023) - [Mexico] [Petition Granted] Motion for Stay Pending appeal denied]

In Hernandez v Erazo, 2023 WL 3175471 (5^th Cir.,2023) the Fifth Circuit denied the motion by Respondent-Appellant Ruth Sarai Erazo to stay pending appeal the district court order granting the petition for the return of her minor child to his father in Mexico pursuant to the Hague Convention.

 

On September 29, 2022, Petitioner-Appellee Luis Ortiz Hernandez submitted a petition in the United States District for the return of his minor son, M.S.O., to Mexico. In his petition, Ortiz asserted that M.S.O.’s mother, Respondent-Appellant Ruth Sarai Erazo, wrongfully removed M.S.O. from Mexico and crossed with him unlawfully into the United States. Mother and son now resided with her aunt, Telma Marilu Chinchilla Reyes, in San Antonio. On January 5, 2023, the district court held a hearing on Ortiz’s motion, at which Ortiz, Erazo, and Reyes testified. On February 28, 2023, the district court issued an order granting Ortiz’s petition. The court began its analysis by determining that M.S.O. had been wrongfully removed under the Hague Convention. Erazo, asserted two affirmative defenses—consent and M.S.O. being well-settled—Ortiz and Erazo had met and began dating in August 2019 while working in Cancun; the two were eventually engaged in December 2019. They both lost their jobs in the spring of 2020 due to the COVID-19 pandemic and learned that Erazo was pregnant with M.S.O. in June. After learning of the pregnancy, Ortiz and Erazo decided to move to Mexico City to live with Ortiz’s parents. M.S.O. was born on January 25, 2021.

 

Ortiz testified that Erazo, who is a Honduran citizen, had initially expressed that her “ultimate intention” was to move to the United States but had later ceased speaking of such intentions once the engagement and pregnancy had occurred. According to Ortiz, Erazo had stopped expressing interest in her earlier plans because Ortiz, who is a Mexican citizen, is barred from returning to the United States after he was deported for overstaying his visa in 2016.

 

Erazo testified that the birth of M.S.O. only increased the urgency she felt to come to the United States and that she and Ortiz had jointly agreed on a plan where they could all resettle there. According to Erazo, she and Ortiz agreed that she and M.S.O. would leave first; Ortiz would join them later once Erazo managed to secure an apartment for them in San Antonio. On October 3, 2021, Ortiz, Erazo, and M.S.O. left for Monterrey, Nuevo Leon, Mexico, where they arrived the next day and stayed with Ortiz’s aunt. Meanwhile, Erazo and M.S.O. met with a Honduran coyote on October 5. Erazo paid the coyote $2,000, which she borrowed from Reyes, for her and M.S.O.’s passage to the United States. Erazo testified that Ortiz helped her and M.S.O. into the car for the first leg of their journey, purchased a phone for her in preparation for the crossing, and that the two were in daily contact throughout her journey.

 

Ortiz disputed that he was involved in or aware of Erazo’s crossing into the United States. He returned to Mexico City alone on October 6. On October 11, Erazo and M.S.O. surrendered to the United States Border Patrol and after a few days were released to Reyes in San Antonio. Erazo ended her relationship with Ortiz on October 31 after it deteriorated upon her arrival in the United States.

 

The district court found that M.S.O. had not been removed from Mexico without Ortiz’s permission. Instead, based on Erazo’s testimony, the court found that Ortiz had consented to M.S.O.’s removal, but on the condition that Ortiz would be reunited with both mother and son in the United States. The court held that Erazo had failed to show that Ortiz had consented to M.S.O.’s removal notwithstanding the status of the couple’s relationship or his ability to join M.S.O. in the United States. The court also ruled that Erazo failed to adequately prove her second affirmative defense: that M.S.O. was well-settled in his new environment. The court ordered that M.S.O. “be promptly and safely returned to Ortiz’s custody in Mexico.”

 

Erazo now appealed the Final Order. Erazo now moved for a stay of the Final Order pending the resolution of her appeal.

 

The Court observed that in deciding whether to issue a stay pending an appeal, it considers four factors: (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. The first two factors of the traditional standard are the most critical.” If, however, (1) the latter three factors are “heavily tilted in the movant’s favor”—i.e., “the balance of the equities weighs heavily in favor of granting the stay”—and (2) a “serious legal question is involved,” an applicant “need only present a substantial case on the merits.” Ruiz v. Estelle, 650 F.2d 555, 565–66 (5th Cir. Unit A June 26, 1981) The Court found that Erazo could not satisfy any of the requirements under Ruiz.

 

First, Erazo had not shown that she wouldl present a substantial case on the merits. Ruiz, 650 F.2d at 565.  Erazo argued that the record was devoid of evidence demonstrating that Ortiz only provided her with his conditional consent to cross with M.S.O. into the United States. But the district court relied on Erazo’s own testimony in finding that “Ortiz eventually planned to join his family in the United States.” Indeed, Erazo testified that she and Ortiz had discussed and eventually decided to come to the United States as a family. She also testified that “the plan was that by the time he [Ortiz] got here [to San Antonio] I would already have an apartment for the two of us.” The court relied on Erazo’s testimony concerning Ortiz’s conduct in determining that he had only provided his conditional consent. Furthermore, the court’s analysis below was consistent with the applicable standard: that courts “liberally find ‘exercise’ ” in such situations. Sealed Appellant, 394 F.3d at 344. Erazo’s argument that the district court erred in relying on analogous caselaw involving conditional consent was thus misplaced. See Hofmann v. Sender, 716 F.3d 282, 293 (2d Cir. 2013); Mota v. Castillo, 692 F.3d 108, 117 (2d Cir. 2012); Baxter, 423 F.3d at 372–73.

 

“Article 12 of the Convention provides, in relevant part, that when return proceedings are commenced more than one year after the date of wrongful removal, the court must ‘order the return of the child, unless it is demonstrated that the child is now settled in its new environment.’ ” Hernandez, 820 F.3d at 787 (quoting Hague Convention, art. 12). The Court considers seven factors when evaluating this defense: (1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) the respondent’s employment and financial stability; and (7) the immigration status of the respondent and child. The immigration status of the respondent or child “is neither dispositive nor subject to categorical rules, but instead is one relevant factor in [this] multifactor test.” Id. at 788. A respondent must establish that her child is well-settled by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).

 

Erazo contended that the district court incorrectly weighed these seven factors. Erazo also argued that “the weight the district court applied to her pending immigration status was dispositive and against this Court’s instruction in Hernandez.  M.S.O. was currently two years old. The Court noted that it has held that a child who was six years old was “not able to form the same level of attachments and connections to a new environment as an older child.” Hernandez, 820 F.3d at 789. Although M.S.O. had been in a stable home for over a year and attended daycare six days a week, his young age discounted the detrimental effect of being relocated. Additionally, M.S.O.’s social interactions were largely confined to Erazo and Reyes outside of daycare. There was no testimony provided as to M.S.O.’s participation in community or extracurricular activities. Considering M.S.O.’s young age, lack of robust connections to the broader community, and Erazo’s uncertain immigration status, it was not obvious to us that the district court incorrectly weighed the Hernandez factors. Second, it was clear that neither Erazo’s nor M.S.O.’s immigration status was dispositive to the district court’s analysis. Erazo had not shown that she will bring a substantial case on the merits regarding either of her affirmative defenses.

 

Even assuming that she had demonstrated a substantial case on the merits, Erazo could not show that the remaining three stay factors—the balance of the equities—heavily tilted in her favor. Ruiz, 650 F.2d at 565–66. The Supreme Court has cautioned against routinely granting stays pending appeal in cases involving the Hague Convention. See Chafin v. Chafin, 568 U.S. 165, 178–80 (2013). Indeed, the Court has explained that “[i]f losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned.” Erazo argued that both she and M.S.O. will suffer irreparable harm if he is returned to Mexico. She emphasizes the “physical and emotional disruption to M.S.O.’s life” and the further risk to his stability if she is successful in her appeal and M.S.O. must then return to the United States. But these are the risks facing many of the children and parents litigating under the Hague Convention; granting stay applications such as these would become routine if Erazo’s arguments, without more, were sufficient. Finally, Erazo’s appeal did not raise a serious legal question. Ruiz, 650 F.2d at 565. Even under a traditional analysis, a stay would not be warranted here. The probability of Erazo succeeding on the merits of her appeal was far from certain. Meanwhile, the harm faced by Erazo, if her stay application is denied, is similar to what Ortiz would encounter if it was granted. Lastly, there was no strong public interest favoring a stay.

 

Recent Hague Convention District Court Cases - Watson v Watson 2023 WL 1967587 (M.D. Florida.2023)

  [Canada][Habitual residence] [Petition denied]

     In Watson v Watson 2023 WL 1967587 (M.D. Florida.2023) the court denied the petition for the return of the parties’ two minor children—thirteen-year-old B.V.W. and ten-year-old G.L.W to Canada. Petitioner and Respondent met in 2001 while both parties were residing in Canada. Petitioner is a Canadian citizen, and Respondent is a dual citizen of Poland and Canada. The parties married in June 2008 in Florida. It was at that time that the parties decided that they wanted to move to Florida. The parties returned to Canada from their honeymoon and began researching immigration options. Shortly thereafter, while still living in Canada, the parties welcomed the birth of their first child, B.V.W., in 2009. After B.V.W.’s birth, the parties learned that they could legally move to the United States if Petitioner became a “skilled worker,” which he could do by becoming a nurse. The parties thus began making plans to move to Florida so Petitioner could attend nursing school on a student visa. In April 2010, after selling their house in Canada, the parties purchased a home in North Port, Florida. The following year, when B.V.W. was approximately eighteen months old, the family permanently relocated to North Port, and Petitioner began nursing school. In 2012, Respondent gave birth to the parties’ second child, G.L.W., in Florida. Petitioner subsequently graduated from nursing school and obtained a visa that permitted the family to continue living in Florida while Petitioner worked as a nurse. B.V.W. and G.L.W. were well-adjusted to their North Port community. B.V.W. and G.L.W. had multiple friends at church and both schools, and they actively participated in social activities, such as choir, summer camp, and a Christian organization similar to the Girl Scouts of America. The family also had seasonal relatives in the North Port area, including Respondent’s aunt who testified to spending time with the children and their friends.  Petitioner began to steal controlled substances from the hospital where he worked. When confronted by his employer, Petitioner admitted to diverting controlled substances for personal use and was immediately placed on leave. Petitioner’s diversion of controlled substances led to his February 2018 arrest. In 2019, Petitioner was sentenced to sixty days in jail followed by four years of probation. Petitioner voluntarily relinquished his nursing license., In June 2020 he was detained by Immigration and Customs Enforcement (“ICE”) at a probation meeting. ICE initiated deportation proceedings against him. Petitioner testified that the couple “fought tooth and nail for [him] to remain in the United States” before accepting that he had to return to Canada. Consequently, the parties began sharing their plans to relocate to a new country. Mrs. Gritton testified that the parties clearly expressed their intentions to live in “any country other than Canada.” Similarly, both Ms. Tetena and Amanda Doucette—another family friend of many years—recalled separate instances in which both Respondent and Petitioner discussed plans of moving out of Canada after a temporary stay. In July 2020, Petitioner returned to Canada after accepting ICE’s offer of voluntary departure. Following the sale of the family’s North Port home, Respondent and the children reunited with Petitioner in Canada in September 2020. For a few months, the family resided with Respondent’s mother in Ontario. The parties then moved 950 miles east and purchased a home in Moncton, New Brunswick, in January 2021. Upon moving to Moncton, Petitioner began working as a personal trainer, and Respondent worked at a pet store as a dog groomer.  In Moncton, the children continued to witness domestic violence at home. In October 2021, about seven months after a physical altercation, Petitioner moved out of the family’s Moncton. In late November 2021, Respondent told Petitioner that she needed to take the children to the United States so that G.L.W. could attend an appointment with an endocrinologist in Florida. Petitioner testified that he consented to the trip, which he believed would only be for a few weeks, and helped Respondent load the car. At some point around this time, Respondent emailed Petitioner’s aunt, stating that she was taking the children to Florida for the aforementioned appointment and to “regroup and recover.” Respondent and the children crossed the Canadian-United States border on November 25, 2021. After attending G.L.W.’s endocrinologist appointment in Florida on November 30, 2021, Respondent and the children stayed in the North Port area with Respondent’s friends and aunt. Though Respondent purportedly told her Moncton employer that she would return to work on December 17, she did not return to Canada. Rather, about a week after leaving Canada, Respondent called Petitioner to tell him that she and the children would be permanently staying in Florida. Respondent and the children moved into a rental home in North Port in January 2022. In October 2022, Respondent filed a petition for dissolution of marriage in Lee County. One month later, Petitioner filed his present Petition for the return of B.V.W. and G.L.W. to Canada. She and the children have since moved to Punta Gorda in Charlotte County.

 

    The district court found that B.V.W. and G.L.W. were habitual residents of the United States prior to moving to Canada in September 2020. At that time, eleven-year-old B.V.W. had lived in Florida since she was eighteen months old, and eight-year-old G.L.W. had lived in Florida since birth. The children attended schools and a church in North Port, and they actively participated in multiple community activities. They also had several friends and some extended family members in the North Port area. B.V.W. and G.L.W. were habitual residents of the United States at the time of their move to Canada. Petitioner therefore had the burden of establishing by a preponderance of the evidence that the children’s habitual residence changed from the United States to Canada by the time Respondent removed the children to the United States in late November 2021. The Court found that Petitioner has not carried this burden. Credible testimony at the hearing established that the parties did not share a settled intention to make Canada the children’s new habitual residence. Neither Respondent nor Petitioner planned for the family to remain in Canada. Though the parties purchased a home in Moncton in January 2021, Respondent testified that this decision was not reflective of an intent to stay in Canada but, instead, high rental prices. This testimony was compounded by that of Ms. Doucette, who recalled Petitioner stating that the family’s move to Moncton would be temporary and that the family planned to move to Europe or find a way back to the United States. Petitioner’s own testimony revealed an intent to leave Canada. Petitioner testified that, even after moving to Moncton, the parties discussed relocating to Europe or Panama. On this record, there was no shared intention to change the children’s habitual residence to Canada. In the absence of a shared settled intention, the Court the  that the objective facts do not “unequivocally point to a change in the [children]’s relative attachments between the two countries” such that the children’s return to the United States from Canada in 2021 was “tantamount to changing the [children]’s family and social environment.” See Chafin, 742 F.3d at 939. Credible testimony revealed that B.V.W. and G.L.W. did not become acclimated to Canada to the degree that Canada could be said to have replaced the United States as the children’s family and social environment. The children’s 2021 return to the United States was not tantamount to “changing the [children]’s family and social environments.” See Chafin, 742 F.3d at 939. Rather, the children’s return to the United States was best characterized as a return to their habitual residence. After living in Ontario for a few months and New Brunswick for less than a year, B.V.W. and G.L.W. moved back to the same Florida community—including their school, church, friends, relatives, and activities—that they had known for nearly a decade. Based on the foregoing, the Court concluded that Petitioner failed to show by a preponderance of the evidence that B.V.W. and G.L.W. were habitual residents of Canada at the time of their removal or retention. The totality of the circumstances established that the children did not develop a family and social environment in Canada sufficient to constitute a change of their habitual residence from the United States to Canada.

Recent Hague Convention District Court Cases - Soares v. Goncavales, 2022 WL 19354528 (M.D. Florida., 2022)

 

[Brazil][Habitual residence][Petition denied]

    In Soares v. Goncavales, 2022 WL 19354528  (M.D. Florida., 2022) the Court denied the Petition for the  return of his minor children to Brazil. Petitioner and Respondent were the biological parents of the two children. In 2018, Respondent relocated to the United States causing Petitioner and Respondent to enter into a Custody Agreement that was approved by the Brazilian court. The Custody Agreement maintained joint legal custody between Petitioner and Respondent but granted sole physical custody of the children to Petitioner. The Custody Agreement also guaranteed Respondent free visitation and mandated visits between Respondent and the children during their school holidays. In December of 2021, Petitioner brought the children to Florida and dropped them off with Respondent to visit over the school holiday pursuant to the Custody Agreement. Instead of returning the children at the appointed time, Respondent obtained a temporary custody order from the Brazilian Court granting Respondent custody of the children on the basis that they were affected by COVID-19. On August 11, 2022, the Brazilian court issued an order on Respondent’s petition and changed the custody of the children. The Brazilian Court granted Respondent’s request that the physical custody of the children be placed with her in the United States. Ultimately, the Brazilian Court concluded that the parties would continue to share joint legal custody of the children “but with alteration of the main residence, so that it is with the mother.” The Brazilian Court then specified Petitioner’s visitation rights, consisting of fifteen days during school holidays each year.

 

    The district court held that regardless of whether Respondent’s initial retention of the children violated Petitioner’s parental rights, it is clear that the current retention of the children in the United States with Respondent is not in violation of Petitioner’s parental rights. The Brazilian Court resolved this issue and gave physical custody of the children to Respondent. Further, at the August 12, 2022 hearing, Respondent testified that she intended to abide by the Brazilian Court’s order and allow Petitioner to exercise his visitation rights consistent with the Order. Thus, the Petition is denied. See Navani v. Shahani, 496 F.3d 1121, 1127–31 (10th Cir. 2007) (concluding that a new custody order issued by the country that was the child’s habitual residence controlled and rendered the appeal moot because it precluded the court from effectuating any relief.

 

Recent Hague Convention District Court Cases - Savata v Edil, 2023 WL 2707473 (W.D. Wisconsin, 2023)

 

[Turkey][Attorneys fees and costs]

    In Savata v Edil, 2023 WL 2707473 (W.D. Wisconsin, 2023) Petitioner Mehmet Fatih Savata filed this case seeking return of his minor child to Turkey. On June 9, 2022, the court granted petitioner’s unopposed motion for default judgment against respondent Banu Esin Edil, and both parties agreed that their minor child would return to his residence in Turkey by June 18, 2022.

 

    The Court observed that ICARA requires courts to award “necessary expenses” incurred by a prevailing petitioner, including legal fees, costs of care and transportation fees “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). Petitioner requested an award of $35,078 in attorney fees and costs, which included: attorney fees totaling $22,554.50 to Boardman & Clark, LLP; $8,850 in expert witness fees; $1,361.44 to a law firm in Turkey; and $2,312.20 in costs. Petitioner later amended his request to add an additional $5,077.50 in fees incurred in answering respondent’s objections to his fee request, for a new total of $40,033.14. Respondent did not oppose petitioner’s initial fee request of $22,554.50 to compensate Boardman & Clark nor petitioner’s request for costs. However, respondent contended that petitioner’s request for expert witness fees and foreign attorney fees are unreasonable, unsupported and excessive. Having reviewed petitioner’s documentation and the parties’ submissions, the court concluded that petitioner’s requested costs and fees are reasonable and reflect necessary expenses incurred in obtaining the return of his child for the following reasons:  Petitioner’s request for $2,312.20 in costs was reasonable and supported by adequate documentation. Petitioner adequately supported his request for $8,850 in expert witness fees for Attorney Mert Yalcin, who provided a report regarding how the Turkish courts interpret and implement legal custody rights for purposes of the Hague Convention. The Seventh Circuit has explained that it may be appropriate in this type of case for the petitioner to retain a foreign attorney to explain custody rights under the laws of the other, relevant country. See Norinder v. Fuentes, 657 F.3d 526, 536 (7th Cir. 2011).  Similarly, petitioner’s requested fees for another Turkish attorney, Nazan Seref, were reasonable. As petitioner explained, he paid Attorney Seref to assist him in filing an application with the Turkish Ministry requesting the return of his minor child, as well as providing petitioner’s Wisconsin-based counsel information on petitioner’s custodial status under Turkish law. This relatively small amount of $1,361.44, which Attorney Seref charged as a flat fee, appeared reasonable for that work, and again, there was no dispute that petitioner paid that fee.  Petitioner’s requested fees of $27,632 in attorney fees to Boardman & Clark were based on a reasonable number of work hours at reasonable hourly rates, ranging from $245 to $405 for the attorneys who worked on the case; $195 for the paralegals; and $210 for a law clerk. Respondent conceded the reasonableness of Boardman’s original fee request of over $22,500, and offered no basis for finding that Boardman’s additional fees were neither reasonably incurred nor paid by petitioner.  Finally, respondent  failed to show that an order awarding petitioner’s actual fees and costs would be “clearly inappropriate.” See 22 U.S.C. § 9007(b)(3). Instead, she argued in her brief that a fee award would impose a financial hardship impairing her ability to care for the parties’ minor child. In some situations, a court may deny or reduce a fee award if it would prevent the respondent-parent from caring for the child. Norinder, 657 F.3d at 536. However, respondent submitted no evidence to support her bald assertion of financial hardship, such as an affidavit or financial records. In contrast, petitioner submitted evidence showing that respondent is qualified as a physician in Turkey, and she owned property in both Wisconsin and Istanbul. Based on this evidence, the court concluded that respondent has failed to meet her burden of showing that she or the parties’ minor child would be negatively affected by petitioner’s requested fee award. Petitioner’s requests for costs and fees were granted in full.

 

 

Recent Hague Convention District Court Cases - Sanchez v Peralta-Rangel, 2021 WL 984814 (E.D. North Carolina, 2021)

 

[Mexico][Habitual residence][Petition granted]


    In Sanchez v Peralta-Rangel, 2021 WL 984814 (E.D. North Carolina, 2021) the Court granted the Petition of Norma Edith Rodriguez Sanchez. Rodriguez Sanchez has lived in the City of Madero, Mexico at the same address since 2010. Respondent Justino Fausto Peralta-Rangel is a citizen of Mexico who currently resided in Angier, North Carolina. A.P.R. was born on May 11, 2008, in Raleigh, North Carolina, and is the biological daughter of Rodriguez Sanchez and Peralta-Rangel. A.P.R. is 12 years old. The parties were never married. They met while living in North Carolina, and A.P.R. is their sole child. In early 2010, Rodriguez Sanchez and A.P.R. returned to Mexico to stay with her family. Rodriguez Sanchez was not legally in the United States and was not able to return to North Carolina. The relationship between Rodriguez Sanchez and Peralta-Rangel ended shortly after she and A.P.R. returned to Mexico. A.P.R. has lived nearly her entire life in Madero, Tamaulipas, Mexico, with Rodriguez Sanchez. Between 2010 and December 18, 2018, Rodriguez Sanchez and A.P.R. resided in Madero, Tamaulipas, Mexico. Since A.P.R.’s birth, Peralta-Rangel only returned to Mexico in June 2015. During this one visit, Peralta-Rangel briefly saw A.P.R. During A.P.R.’s life in Mexico, Peralta-Rangel did not provide support in the form of clothing, money, or anything else. Rodriguez Sanchez never relied on Peralta-Rangel to meet A.P.R.’s basic needs. Rodriguez Sanchez reared A.P.R. in Mexico from infancy. Rodriguez Sanchez ensured A.P.R.’s health care and educational needs, and made all day-to-day decisions with little to no input from Peralta-Rangel. A.P.R. is a citizen of both Mexico and the United States. No court in either country has ever entered an order regarding the custodial rights of the parties in either country. A.P.R. attended school in Madero, Tamaulipas, Mexico through the first semester of fifth grade. A.P.R. is fluent in Spanish. In 2018, Rodriguez Sanchez and Rodriguez Sanchez’s sister, Alejandra Rodriguez Sanchez (“Alejandra”), discussed sending A.P.R. to Benson, North Carolina, to visit Alejandra’s family and attend one semester of school to learn English. In October 2018, Rodriguez Sanchez contacted Peralta-Rangel and asked Peralta-Rangel to complete a form allowing A.P.R. to renew her United States passport. Peralta-Rangel completed the form, but did not participate in the plans for A.P.R.’s visit. In December 2018, Rodriguez Sanchez’s niece, Cindy Garcia Rodriguez (“Cindy”), flew to Tamaulipas to visit family and escort A.P.R. to Benson, North Carolina, to stay with Alejandra. On December 18, 2018, Cindy and A.P.R. arrived in the United States. A.P.R. drove with Cindy directly to Alejandra’s home that evening, where A.P.R. remained for the next five months. *2 On January 3, 2019, A.P.R. was enrolled for a semester at Benson Middle School as Rodriguez Sanchez planned. Benson Middle School is in the school district that encompassed Alejandra’s address. Cindy was listed as the emergency contact, along with Alejandra Rodriguez, Adrian Rivera, and Maria Rodriguez. Peralta-Rangel was listed as the fifth contact on the emergency contact form. Shortly after A.P.R.’s arrival, Peralta-Rangel appeared at Alejandra’s door unannounced asking to see A.P.R. For approximately two months, Peralta-Rangel visited A.P.R. weekly. A.P.R. was not comfortable going anywhere alone with him. The visits ceased in approximately mid-February 2019. While A.P.R. was in the United States, Rodriguez Sanchez remained in constant contact with A.P.R., texting and calling almost every day. At no time did Rodriguez Sanchez abandon or act as though she abandoned A.P.R. In mid-February 2019, A.P.R. expressed homesickness and asked Rodriguez Sanchez if she could return to Mexico sooner than planned. At the time, Alejandra and Rodriguez Sanchez could not afford the return tickets, and they asked A.P.R. to be patient

 

    On May 10, 2019, after nearly three months without contact, Peralta-Rangel arrived at A.P.R.’s school and demanded that she be released into his care. Benson Middle School administrators contacted Cindy and Alejandra about Peralta-Rangel’s demand and asked that they come to the school. Cindy immediately went to Benson Middle School. When Cindy arrived, she found A.P.R., who was very upset. The principal told Cindy that the school had to release A.P.R. to Peralta-Rangel because he was her father. Cindy contacted Rodriguez Sanchez via videophone and was able to speak to A.P.R. during the incident. A.P.R. asked not to be released to her father, but the principal did so on May 10, 2019. That was the last day that A.P.R. stayed with Alejandra and Cindy as Rodriguez Sanchez had planned.

 

    Peralta-Rangel never returned A.P.R. to Alejandra’s care or retrieved A.P.R.’s belongings from Alejandra’s home. A.P.R. came to the United States to visit Rodriguez Sanchez’s family, stayed with Rodriguez Sanchez’s family, was enrolled in school by Rodriguez Sanchez’s family and in the family’s school district, and was scheduled to return to Mexico at the end of the semester. Rodriguez Sanchez maintained her custody rights under the doctrine of patria potestas and actively exercised her custody rights of A.P.R. from the time A.P.R. arrived in the United States until Peralta-Rangel wrongfully retained A.P.R. on May 10, 2019. Rodriguez Sanchez never consented to Peralta-Rangel withholding A.P.R.

 

    On May 16, 2019, Rodriguez Sanchez filed a Hague Application for the return of A.P.R.

 

    Rodriguez Sanchez never acquiesced to A.P.R. remaining with Peralta-Rangel in the United States.  Rodriguez Sanchez never consented to Peralta-Rangel’s retention of A.P.R. or acquiesced in the retention. Rodriguez Sanchez filed her Hague Application within days of the retention, signed a power of attorney naming her niece, Cindy Rodriguez, and consulted with lawyers in both the United States and Mexico. On May 8, 2020, Rodriguez Sanchez filed her Hague Petition for the Return of A.P.R., which is within one year of A.P.R.’s wrongful retention. When Rodriguez Sanchez filed this action and at all times throughout this proceeding, A.P.R. resided with the Peralta-Rangel in Angier, North Carolina. Angier is within the jurisdiction of the United States District Court of the Eastern District of North Carolina.

 

    The Court found petitioner established a prima facie case.  Based on the evidence presented and crediting Rodriguez Sanchez’s testimony about how and where she reared A.P.R., A.P.R.’s habitual residence was Mexico. Rodriguez Sanchez had a right to custody under the laws of the contracting state. Patria potestas rights are “rights of custody” as defined by the Convention and ICARA. Both parents retain joint custodial rights to A.P.R., and it was Peralta-Rangel’s affirmative action in retaining A.P.R. that hampered Rodriguez Sanchez’s joint custodial rights under the Civil Code for the State of Tamaulipas, Mexico. Under the Civil Code of the State of Tamaulipas, Mexico, Rodriguez Sanchez maintained her rights of custody over A.P.R. while A.P.R. was visiting with family in the United States. Rodriguez Sanchez was actually exercising her custodial rights when A.P.R. was wrongfully retained. “A parent who sends his or her child to live with a caretaker has not relinquished custody rights but rather has exercised them.”. A parent exercises custodial rights “whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Bader, 484 F.3d at 671. Rodriguez Sanchez maintained daily contact with A.P.R. until May 10, 2019, when the wrongful retention occurred. Even after the wrongful retention, Rodriguez Sanchez continued to contact A.P.R. daily, even when A.P.R. was

 

    In his response, Peralta-Rangel asserted the following affirmative defenses: (1) Rodriguez Sanchez was not actually exercising her custody rights of A.P.R. at the time of the retention; (2) Rodriguez Sanchez consented to the retention or acquiesced in the retention; (3) Rodriguez Sanchez failed to file the petition within one year of the retention and A.P.R. is now well settled, and (4) A.P.R. will suffer physical or psychological harm or otherwise be in an intolerable situation if returned to Mexico. Peralta-Rangel presented no evidence to support these defenses. Thus, they fail. Alternatively, the defenses fail on the evidence presented.

Recent Hague Convention District Court Cases - Radu v Shon, 2023 WL 142908 (D. Arizona, 2023)

 

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

In Radu v Shon, 2023 WL 142908 (D. Arizona, 2023) on June 8, 2020, after an evidentiary hearing, the Court issued an Order on September 17, 2020, requiring Respondent Persephone Johnson Shon (“Respondent”) to return minor children O.S.R. and M.S.R. to Germany. (Doc. 26.) Pursuant to Article 13(b) of the Convention, the Court found the children would face a grave risk of psychological harm if returned to Germany in the custody of Petitioner and therefore ordered, as an ameliorative measure, that the children be returned in the temporary custody of Respondent. The Ninth Circuit vacated and remanded for this Court to reasonably ensure compliance with its ameliorative measure. On December 30, 2021, after a further evidentiary hearing, the Court again granted the Petition and ordered the Respondent to return O.S.R. and M.S.R. to Germany. The Court found that ordering the return of the children in the sole custody of Respondent was not necessary to mitigate a grave risk of psychological harm and that ordering Respondent to return with the children to Germany, where Petitioner and Respondent have joint custody rights, was sufficient. Respondent appealed the December 30, 2021 Order, and the Ninth Circuit remanded for consideration of the recently decided United States Supreme Court case Golan v. Saada, __ U.S. __, 142 S. Ct. 1880 (2022), which ruled that a court is not required to consider ameliorative measures upon an Article 13(b) grave-risk finding. On remand, the Court found in its discretion that consideration of ameliorative measures was appropriate in this case and that the ameliorative measures as stated in its December 30, 2021 Order satisfy the standards articulated in Golan. Respondent appealed (Doc. 114), and the Ninth Circuit remanded on a limited basis for clarification of the logistics of the children’s return.

 

The Ninth Circuit directed the Court to address seven questions:(a) what, specifically, is the district court’s current Article 13(b) grave-risk finding and ameliorative measure(s), (b) whether Radu must pay for the children’s airfare,  (c) whether Radu must pay for separate living arrangements for the children and Shon, (d) what the custody arrangements for the children will be (sole or joint) while Shon is temporarily residing in Germany, (e) what the custody arrangements for the children will be if Shon is no longer able to legally reside in Germany on a tourist visa before a German court decides custody, (f) whether the parties should notify German child protective services upon the children’s arrival in Germany, and (g) whether, if necessary, German child protective services has jurisdiction to act in overseeing the children’s wellbeing while they are present in Germany.

 

The Court clarified that its finding under Article 13(b) of the Convention is that O.S.R. and M.S.R. would be at grave risk of psychological harm if they were to return to Germany and remain in the sole custody of Petitioner for an extended period. The Court did not find that the children would be at grave risk of psychological harm if Petitioner and Respondent have joint custody of them in Germany. Furthermore, the Court does not find that the children would be at grave risk of psychological harm if Petitioner has sole custody of them for a limited duration. Accordingly, the Court orders as an ameliorative measure that Respondent return with O.S.R. and M.S.R. to Germany and remain there on a tourist visa for 90 days, sharing joint custody of the children with Petitioner in Germany while she remains there. Based on the record evidence, the Court finds that a German court will likely be able to make a custody determination within six months of the children’s arrival in Germany. Therefore, even if Respondent departs Germany 90 days after the children’s arrival, the children would remain in Germany in Petitioner’s custody only for a limited duration. Furthermore, by that point, the children will be re-acclimated to life in Germany and to the care of Petitioner. The respondent may attempt to obtain a resident visa to stay with the children in Germany in a joint-custody arrangement until a German court makes a final custody determination. But even if Respondent leaves Germany after 90 days, and even if a German court has not made a final custody determination by the time Respondent departs, the Court finds that requiring Respondent to return with O.S.R. and M.S.R. to Germany remains a sufficient ameliorative measure to mitigate the borderline grave risk of psychological harm that exists in this case.

 

The Court clarified that it finds Respondent to be capable of paying for airfare for herself and the children to return to Germany. Respondent has not shown that ordering her to pay for airfare to Germany is clearly inappropriate. Accordingly, pursuant to 22 U.S.C. § 9007(b)(3), the Court orders Respondent to bear the costs of transporting herself, O.S.R., and M.S.R. back to Germany. However, the Court found that Respondent established that she would likely have difficulty paying rent in Germany since she is eligible only for unpaid leave from her job in Tucson, Arizona, and she would be staying on a tourist visa in Germany without the ability to work there. Accordingly, the Court ordered Petitioner to pay the costs for a separate residence for Respondent, and the children when they are in Respondent’s care, to live in while Respondent is in Germany, until a German court makes a final custody determination or for 90 days, whichever time period is shorter.

 

The Court’s ameliorative measure requires the Respondent to return with O.S.R. and M.S.R. to Germany. Once in Germany, Petitioner and Respondent will have joint custody of the children pursuant to German law, until a German court makes a custody determination. If Respondent’s tourist visa expires before a German court makes a custody determination, and Respondent has been unable to obtain a resident visa by that time, then Petitioner will have custody of the children after Respondent departs and until a German court makes a custody determination.

 

The Court declined to order Respondent to notify any agencies, as it did not find such an order to be necessary under the circumstances. The Court found that the existence of the German equivalent of child protective services, jugendamt, was supported by the evidence of record and was also an appropriate matter for judicial notice. The Court also found, based on the record evidence, that there was no reason to doubt that Germany’s child protective services would have the authority to ensure the children’s safety if necessary while the children are living in Germany.

 

Recent Hague Convention District Court Cases - Preston v Preston, 2023 WL 300130 (E.D. Texas, 2023)

 

[Canada][Petition granted][ Mature Child Objection Defense][Undue influence]

    In Preston v Preston, 2023 WL 300130 (E.D. Texas, 2023) the district court granted the petition of Adam Lester Preston for Return of his nine-year-old daughter, G.I.P to Canada.

 

    Petitioner was the biological father of the minor child, G.I.P. Respondent qA the minor child’s biological mother. Petitioner and Respondent were currently legally married and were married at the time of the minor child’s birth The Parties resided together with the minor child in their marital home in Brandon, Manitoba, Canada, from around the time she was born through the date that Respondent and the minor child traveled to the United States. On July 19, 2022, Respondent and the minor child traveled from Canada to the United States, specifically Frisco, Texas, in the Eastern District of Texas, to visit extended family, with the expectation that both the minor child and Respondent would return to Canada on September 7, 2022. Respondent and the minor child did not return to Canada on that date or any date thereafter.  The parties stipulated that Canada was the habitual residence of the child under the Hague Convention on International Child Abduction; that Adam Lester Preston had rights of custody of the child under Canadian law and that Adam Lester Preston was exercising those rights of custody at the time G.I.P. was “wrongfully removed or retained,” The only defense being pursued is the Mature Child Objection Defense under Article 13.

 

    Under the Hague Convention, a court may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, art. 13. Analysis of the mature child defense is therefore a two-step process: first, the Court must determine whether G.I.P. is of sufficient age and maturity for her views to be considered, and second, the Court must evaluate the nature of the objection and determine whether it is a particularized objection or merely a general preference. Respondent must prove each element of the mature child defense by a preponderance of the evidence—that the child is mature enough for her views to be taken into account and that the child objects to return. See 22 U.S.C. § 9003(e)(2)(B);. As with each affirmative defense under the Hague Convention, the “exception is to be applied narrowly.” England v. England, 234 F.3d 268, 272 (5th Cir. 2000). Moreover, when the mature child defense is the only affirmative defense raised, as is the case here, the Court “must apply a stricter standard in considering a child’s wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his or her habitual residence.” San Martin v. Moquillaza, No. 4:14-CV-446, 2014 WL 3924646, at *7 (E.D. Tex. Aug. 8, 2014) (quoting Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007)).

 

 “ ‘[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.’ ” Esparza, 2022 WL 17724414, at *3 (quoting Dietz v. Dietz, 349 F. App’x 930, 934 (5th Cir. 2009)). The Fifth Circuit has explained that an in camera interview with the child provides a proper basis for the Court’s consideration of the age and maturity defense. Vasconcelos v. Batista, 512 F. App’x 403, 406 & n.6 (5th Cir. 2013) (citing TEX. FAM. CODE § 153.009) (“Such interviews are otherwise entirely proper under Texas law.”).

 

    In keeping with the Fifth Circuit’s guidance, the Court considered the in camera interview with the minor child], as well as the Petitioner’s and Respondent’s testimony at trial related to the minor child’s maturity. The Court did also consider the report of the ad litem  and her testimony, and the documentary evidence in the record. The Court found Respondent had not carried her burden of proof regarding the first element of the mature child defense. Following the interview of the minor child, the Court concluded that it would not be appropriate to consider G.I.P.’s views in determining whether she should be returned to Canada, as G.I.P. had not yet attained a sufficient age and degree of maturity. G.I.P. was nine years old and homeschooled. She stated her grade level varies, somewhere between third, fourth, and fifth, depending on the subject During the interview, the minor child was talkative but understandably nervous and confused by the circumstances producing this litigation. On several occasions, she lost her train of thought and asked the Court to repeat its question. While she voiced a clear opinion on certain topics, and both parents and the ad litem agree she was bright and intelligent, her demeanor, mannerisms, and interests suggest she was of average maturity for a 9-year-old. That her testimony reflected the interests and concerns of a perfectly normal child of her age was intended as no discredit to her; the mature child exception is reserved for extraordinary cases. See Friedrich v. Friedrich, 983 F.2d 1396, 1403 (6th Cir. 1993) (noting that affirmative defenses are reserved for “extraordinary cases,” since “it is the clear import of the Convention that in most cases the duty of that court, when the niceties of the convention are met, is to return the child to the country of habitual residence for resolution of the custody dispute under the laws of that country.”); Guzzo v. Hansen, No. 4:22-CV-15 PLC, 2022 WL 3081159, at *9 (E.D. Mo. Aug. 3, 2022) (“Child is intelligent and personable, but the record does not suggest that his opinions are those of an especially mature person. To the contrary, Child generally exhibits the traits of a typical ten-year-old.”); Bhattacharjee v. Craig, No. 4:21-CV-00826-SEP, 2021 WL 4504376, at *5 (E.D. Mo. Oct. 1, 2021) (“Based on the evidence presented, this is not an extraordinary case, and Respondent has not satisfied that stricter standard.”).

 

    Based on the totality of evidence, the Court found Respondent had not carried her burden to show by a preponderance of the evidence that G.I.P.  attained the age and maturity such that her views should be taken into account.  Even if the Court had found the child displayed sufficient age and maturity, the Court further found that any objection by the minor child to returning to Canada should not be considered and is the result of undue influence. See Vazquez v. Vasquez, No. 3:13-CV-1445-B, 2013 WL 7045041, at *29 (N.D. Tex. Aug. 27, 2013)

 

Recent Hague Convention District Court Cases - Munoz v Diaz, 2023 WL 139732 ( S.D. Georgia, 2023)

 

[Mexico] [Petition granted] [Attorneys fees and costs]
 

     In Munoz v Diaz, 2023 WL 139732 ( S.D. Georgia, 2023) in a prior Order in this case, the Court granted the Petition for the return of H.E.P.B. and E.I.P.B. the children of Petitioner and Respondent, to Petitioner’s custody in Mexico. Before the Court was the Petitioner’s Motion and Application for Award of Fees and Costs. Petitioner requesting $69,513.75 in attorneys’ fees and $7,077.42 in costs and expenses, for a total award request of $76,591.17. Respondent failed to file any response or to voice any opposition thereto.

 

    The Court observed that the Eleventh Circuit Court of Appeals has “read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs, and expenses would be clearly inappropriate.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). The Eleventh Circuit has suggested that there are two circumstances under which an award under Section 9007(b)(3) is “clearly inappropriate.”  The first is when “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Id. The second is when “a respondent had a good faith belief that [his] actions in removing or retaining a child were legal or justified.” The “substantial burden of establishing that a fee award is clearly inappropriate” lies with the losing respondent.

 

    The Court’s inquiry is guided by the lodestar framework. See Fuentes-Rangel, 2015 WL 12999707, at *1 (citing Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998)); see also Moonga, 2018 WL 4026020, at *2; Neves v. Neves, 637 F. Supp. 2d 322, 339 (W.D.N.C. 2009) Michael Manely was the founding attorney of the Manely Firm and has nearly thirty-three years of experience. He practiced primarily in the metro-Atlanta area, and specialized in “family law, international family law, and Hague Abduction Convention work in the United States,” and he “served as an expert witness on Hague Abduction Convention matters. He billed at a rate of $550 per hour. David Purvis was a partner in the Manely Firm, based in Savannah, Georgia, and had roughly twelve years of experience. According to his affidavit, his practice focused exclusively on family law, and he handled “numerous complex family law cases and argued before the Georgia Supreme Court on issues involving assisted reproductive technologies and other cutting[-]edge issues in family law. He billed at a rate of $420 per hour. As to Michael Manely, because of his experience with Hague Convention cases (in addition to his years of practice and his status as the founding partner in his firm), the Court found $375 per hour to be a reasonable hourly rate for him in the Savannah market. As to David Purvis, based on years of experience, the type of work he contributed to the case, and the fact that he was known to the Court to have previous experience with this specific type of case, the Court found that he should be compensated at a rate of $325 per hour. The Court awarded Petitioner $48,940.02 in fees and expenses against Respondent.