Tereshchenko v. Karimi, 2023 WL 8452224 (S.D. New York, 2023) [Ukraine][Subject matter jurisdiction] [Motion to dismiss denied]

In Tereshchenko v. Karimi, 2023 WL 8452224 (S.D. New York, 2023) Yasamin Karimi and her children fled Ukraine in early 2022, following Russia’s invasion. The children’s father, Roman Tereshchenko petitioned the Court under the Hague Convention for the return of his two minor children. Respondent moved to dismiss the petition pursuant to Rule 12(b)(1), Fed. R. Civ. P., on the ground that this Court lacks subject matter jurisdiction. The Court denied the motion.

 Tereshchenko and Karimi, both Ukrainian citizens, were married on April 22, 2017, in Odessa, Ukraine. The parties share two minor children, K.T. and M.T. On November 16, 2018, the parties divorced. On May 29, 2019, Tereshchenko and Karimi executed an agreement concerning their respective custody rights. Under the Custody Agreement, the Children were to reside with Respondent in Odessa, and Petitioner maintains certain visitation rights. There are ongoing custody proceedings in Ukraine, where Tereshchenko and Karimi are both seeking to modify provisions of the Custody Agreement. On February 24, 2022, Russia invaded Ukraine. In early March, Karimi fled Ukraine with the Children. In July, Karimi and the Children ultimately made their way to the United States where they were granted humanitarian parolee status. Karimi and the Children have remained in the United States since July 2022. Tereshchenko has been residing in France since May 2022, where he asserts he has established a primary residence.

 On March 8, 2023, Tereshchenko filed the petition asserting that Karimi wrongfully removed the Children from Ukraine. Tereshchenko seeks the Children’s return to him in France. Respondent moves to dismiss the petition pursuant to Fed. R. Civ. P. 12(b)(1), which requires the Court to dismiss an action for lack of subject matter jurisdiction if the Court determines that it lacks the constitutional or statutory power to adjudicate the case. When a Rule 12(b)(1) motion is made solely based on the allegations in the pleading, the “task of the district court is to determine whether the [p]leading alleges facts that affirmatively and plausibly suggest” that subject-matter jurisdiction exists. Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (citation omitted). Courts must be careful, however, not to conflate “federal-court ‘subject-matter’ jurisdiction over a controversy[ ] and the essential ingredients of a federal claim for relief.” Green v. Dep’t of Educ. of N.Y., 16 F.4th 1070, 1076 (2d Cir. 2021). To resolve whether an issue goes to the merits or subject matter jurisdiction, the Court must look to the language of the statute to determine whether Congress intended “that a threshold limitation on a statute’s scope shall count as jurisdictional.” Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006).

 The district court held that Karimi conflated jurisdiction with the merits of Tereshchenko’s petition for the Children’s return. ICARA confers “concurrent original jurisdiction of actions arising under the Convention” on “[t]he courts of the States and the United States district courts.” 22 U.S.C. § 9003(a). A petition for the return of a child is properly heard by “any court which has jurisdiction ... in the place where the child is located at the time the petition is filed.” Id. § 9003(b). The Children were residing within this district at the time the petition was filed, and thus § 9003 confers subject matter jurisdiction upon this Court. Karimi made four arguments in support of her assertion that this Court lacked subject matter jurisdiction over the petition. Three of those contentions related to an element of proof required either of the Petitioner who sought the Children’s return or of the Respondent who opposed that return. Those contentions do not, however, relate to the Court’s power to adjudicate the merits. The fourth argument -- that Petitioner may not seek the return of the Children to France, a state other than their habitual state of residence -- was similarly unavailing. That question concerns potential remedies available under the Hague Convention. It has no bearing on whether the Court has subject matter jurisdiction over the petition.

Guzzo v. Hansen, Not Reported in Fed. Rptr., 2023 WL 8433557 (Eighth Circuit, 2023)[Spain][Petition granted]

 

In  Guzzo v. Hansen,  Not Reported in Fed. Rptr., 2023 WL 8433557 (Eighth Circuit,  2023) Erica Hansen, a United States citizen, appealed the district court’s order that her son with Fabrizio Guzzo be returned to Spain. The Eighth Circuit affirmed. Hansen argued that the district court erred in determining the record did not support her defenses to returning her son to Spain. This court discerned no error in the district court’s conclusion that Hansen failed to establish her son would face a grave risk of harm if returned to Spain. See Acosta v. Acosta, 725 F.3d 868, 874 (8th Cir. 2013) (standard of review); see also Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) (grave-risk inquiry only requires assessment of whether the child will face immediate and substantial risk of an intolerable situation if he is returned to habitual residence). The court discerned no error in the district court’s finding that, even if her son had attained sufficient maturity to consider his views, he did not express a particularized objection to living in Spain. See Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016) (standard of review); see also Dubikovskyy v. Goun, 54 F.4th 1042, 1048 (8th Cir. 2022) (child’s preference or generalized desire to remain in United States is insufficient, as child’s testimony must include particularized objections to returning to former country).

Rubio v. Lopez, 2023 WL 8031322 , S.D. New York (2023) [Mexico][Petition dismissed][Mootness]

 In Rubio v. Lopez, 2023 WL 8031322 , S.D. New York (2023) Petitioner Franco Bartzik Rubio and Respondent Sandra Leticia Morales Lopez were former spouses who are engaged in a bitter custody fight in Mexico over their six-year-old child, A.B.M. Bartzik Rubio filed a petition under the Hague Convention for “the return” of A.B.M., who was allegedly “removed from Mexico” to this District by Morales Lopez without Bartzik Rubio’s “consent or acquiescence.” Morales Lopez moved to dismiss the case as moot on the ground that A.B.M. was already in Mexico. The Court founds that Morales Lopez  carried her burden and that the case must be dismissed as moot. “To prevail on a Hague Convention child custody claim, a petitioner must establish by a preponderance of the evidence that: ‘(1) the child was habitually resident in one State and has been removed to ... a different State; (2) the removal ... was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal.’ ” Daunis v. Daunis, 222 F. App’x 32, 34 (2d Cir. 2007) (summary order) (quoting Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005)). “The Convention’s central operating feature is the return remedy.” Abbott v. Abbott, 560 U.S. 1, 9 (2010). That is, while a court adjudicating a petition under the Hague Convention may order a child returned to his or her country of habitual residence, it must leave decisions regarding custody arrangements to the courts of the country of habitual residence. It follows that where there is no dispute as to a child’s country of habitual residence and the child has returned to that country, courts generally dismiss as moot petitions brought pursuant to the Hague Convention. That is the situation here. First, there was no dispute that Mexico was A.B.M.’s country of habitual residence. And second, the record confirmed that A.B.M. was in Mexico (and likely had been for nearly the entire duration of this case). Morales Lopez submitted a sworn declaration attesting that A.B.M. was currently residing in Mexico and, with the exception of a three-day shopping trip to McAllen, Texas, near the Mexico border, in May 2023, “has been in Mexico continuously since March 12, 2023.” She also submitted photographs of A.B.M. in Mexico with date, time, and location stamps, including one taken as recently as November 3, 2023. Significantly, Bartzik Rubio did not present any evidence (let alone admissible evidence) to the contrary — even though the Court granted him discovery on the question of mootness. At best, he pointed to an Amber Alert identifying A.B.M. as missing that was issued in Mexico on August 20, 2023.. But the Amber Alert (which was almost certainly inadmissible hearsay) was apparently deactivated within days, and it appeared to have been generated in the first instance by Bartzik Rubio’s own unverified complaints to the Mexican police, Making matters worse, it came only a few months after a Mexican court deactivated an earlier Amber Alert that was also apparently orchestrated by Bartzik Rubio — and granted Morales Lopez a protective order. In short, the Amber Alert was no evidence that A.B.M. was (or remains) outside of Mexico, let alone that she was (or remains) in the United States. Lacking evidence that A.B.M. was outside of Mexico, and in this District in particular, Bartzik Rubio sought to avoid dismissal by invoking the exception to mootness for cases that are “capable of repetition, yet evading review.” Exxon Mobil Corp. v. Healey, 28 F.4th 383, 395 (2d Cir. 2022). The exception is available only in exceptional situations. This is not one of those “exceptional situations.”

Recent Hague Convention District Court Cases - Duhart v Kristan, 2023 WL 79277779 N.D. Georgia, 2023) [Germany][Petition dismissed] [Lack of jurisdiction]

In Duhart v Kristan, 2023 WL 79277779 N.D. Georgia, 2023) the court denied the petition and dismissed the case upon  a 28 U.S.C. § 1915(e)(2)(B) frivolity review of pro se Petitioner’s Complaint and Verified Petition for Return of a Child under the Hague Convention.

 Petitioner, Jovan Duhart, was the father of minor A.D. He contended that he and the child’s mother, Taylor Kristan, share joint legal and physical custody of A.D. According to Duhart, as of June 4, 2023, the child has been wrongfully detained by Kristan in Stuttgart, Germany. Duhart filed his Petition on September 1, 2023 requesting a preliminary injunction hearing in an effort to obtain an order from this Court directing that A.D. be returned to the State of Georgia. 

The Court observed that an in forma pauperis (IFP) complaint such as this one must be dismissed “if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The  International Child Abduction Remedies Act (ICARA), establishes procedures for requesting return of a child wrongfully removed to or retained in the United States. 22 U.S.C. § 9003. The Act authorizes “[a]ny person” seeking return of a child under the Convention to file a petition in state or federal court. Id. The petition must be filed “in any court ... which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” Id. See also Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996) (Under the Hague Convention, “a court in the abducted-to nation has jurisdiction to decide the merits” of an ICARA petition); Yang v. Tsui, 416 F.3d 199, 201 (3d Cir. 2005) (“The District Court had jurisdiction pursuant to ICARA.... At the time [petitioner’s] Petition was filed in the District Court, the child was located in Pittsburgh, Pennsylvania.”); Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998) (jurisdiction over petition in Georgia was proper where children were located in Georgia, because ICARA jurisdiction is based on children’s location, not traditional residency).  The child was allegedly being wrongfully retained in Germany on September 1, 2023, the date Duhart filed this Petition. Accordingly, this Court had no jurisdiction over Duhart’s claims. Duhart’s assertion that venue was proper based on Kristan’s federal employment had no bearing on the jurisdictional analysis under ICARA.

 

Recent Hague Convention District Court Cases - Nisbet v Bridger, 2023 WL 6998081 (D. Oregon, 2023) [Scotland][Petition denied[Habitual residence][Grave risk of harm]

 

 

 

In Nisbet v Bridger, 2023 WL 6998081 (D. Oregon, 2023)  the district court denied the petition for the return to Scotland of the two children, five-year-old ACN and three-year-old KRN.

 In June 2022, the children and their mother, Respondent Spirit Rose Bridger, left Scotland for the United States, and have lived in Oregon ever since. The children’s father, Petitioner Andrew Nisbet, argued that Respondent took their children in violation of the Hague Convention. The evidence compelled two conclusions. First, Petitioner failed to prove by a preponderance of the evidence that the children’s habitual residence was Scotland. The evidence showed that the children did not have a settled permanent home in Scotland before arriving in the United States. The facts proved that the children lacked a meaningful connection to Scotland, that their caregiving parent had long intended to move to Oregon, and that their absentee parent had coerced their caregiver into remaining longer than she wished. They were unsettled largely because Petitioner killed his mother in August 2019 and then was detained and committed to St. Andrew’s a secure psychiatric facility in England. One of the children was not yet born at the time of those events. The petitioner had been sentenced to an indefinite period of psychiatric confinement. The petitioner has not lived in Scotland since 2017.  The petitioner continued to display behaviors like those he showed in Jersey. On May 18, 2023, a month before filing his Hague Petition, Petitioner threatened to attack staff when he was moved between wards. The petitioner refused treatment recommended by St. Andrew’s, insisting that he receive therapy from his personal therapist, Jane Pointon, whom he has seen since 2017. Petitioner has also decided that mindfulness methods, not intensive therapy, suffice as treatment. This is so although even Petitioner’s expert did not see any document recommending Petitioner go without therapeutic treatment. Finally, in confinement, Petitioner has apparently at times barricaded himself from hospital staff, punched walls, banged his head against a window, and had physical altercations with the staff. The children did not have a habitual residence on June 17, 2022; the Court therefore denied the Petition.

 

Assuming the children’s habitual residence was Scotland before they moved to Oregon, the Convention did not require a return of the children because Respondent had shown by clear and convincing evidence that a return to Scotland would present a grave risk of harm or otherwise place the children in an intolerable situation. The children had no familial support network there. Their father, Petitioner, remained indefinitely committed to a secure in-patient psychiatric health facility. And Petitioner had a history of violent and coercive behaviors that constitute major risk factors for domestic abuse. Although there was no evidence that Petitioner physically abused Respondent or the children, there was evidence of coercive, manipulative, violent, and threatening behavior directed at Respondent and Petitioner’s family. Such long-standing behavior constituted a grave risk of harm to ACN and KRN if they were returned., Petitioner here had a broader history of familial abuse against his mother, father, and brother as well as Respondent. Finally, the grave risk of displacing the children is starker still when juxtaposed with depriving the children of their mother and their support network in Oregon. As the Second Circuit has explained, “the fact that a child is settled may form part of a broader analysis of whether repatriation will create a grave risk of harm,” though it cannot be categorically dispositive. Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001), abrogated on other grounds by Golan, 142 S. Ct. 1880. Because of the isolation of COVID-19 and Petitioner’s absence from the children’s lives, they developed an especially strong bond with their mother. And in Oregon, the children have family, friends, and social benefits that, if returned to Scotland, they would lose in an extremely short time frame. As Dr. Poppleton testified, losing their mother, family, and support network so quickly could have cascading effects on the children’s development and health. Coupled with the risk posed by Petitioner, this clearly presents an intolerable situation and grave risk to the children. In sum, the children’s return to Scotland posed a grave risk of harm and intolerable situation to them. For this reason, as well as the children’s lack of a habitual residence on June 17, 2022, the Court would not order that the children be returned to Scotland.

 

Petitioner argued that the Court should order the children’s return to Scotland so that he can visit them while they live under the supervision of either a live-in nanny or Petitioner’s friend, Mr. Harper (who testified). This Court found these ameliorative measures unworkable. Golan, 142 S. Ct. at 1892–94 (giving district courts broad discretion to consider such measures).

 

 

 

 

 

 

 

 

 

Recent Hague Convention District Court Cases - Maduhu v Maduhu, 2023 WL 6979606 (WD Texas, 2023)[United Kingdom][Petition granted][Necessary Costs and Expenses]

 

In Maduhu v Maduhu, 2023 WL 6979606 (WD Texas, 2023) the Court granted the petition of  Sonda Jonathan Maduhu seeking the return of his two minor children, R.A.M. and M.H.M., to the United Kingdom. The Court concluded that R.A.M. and M.H.M. had been wrongfully removed and that a return order was warranted. A Final Judgment was issued on June 6, 2023 (ECF No. 30), and Petitioner timely moved for an award of fees and costs on June 28, 2023, seeking $19,057.50 in attorney’s fees and $10,733.85 in costs^.  No response had been filed.

 The Court observed that the lodestar method is an accepted approach for determining attorney’s fees in Hague Convention cases. Velarde, 2017 WL 11663478, at *1. In calculating attorney’s fees under the lodestar method, the Court engages in a three-step process: (1) determine the nature and extent of the services provided; (2) set a value on those services according to the customary fee and quality of the legal work; and (3) adjust the compensation based on other Johnson factors that may be relevant to the case. Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092 (5th Cir. 1982); Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). The “lodestar” amount—which is the “appropriate fee award [ ] determined by multiplying the number of hours reasonably worked on litigation by a reasonable hourly rate”—is calculated by steps one and two. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Both the hours worked, and the hourly rate must be reasonable, and the Court considers only the hours spent on successful claims. See id. at 433–34. Reasonable hourly rates “are to be calculated according to the prevailing market rates in the relevant community” for the purposes of the lodestar calculation. McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (citing Blum v. Stevenson, 465 U.S. 886, 895 (1983)). The relevant market to determine the prevailing rate to be used in the lodestar calculation is the market in which the district court sits. Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002). The third step of the reasonable attorney fee calculation is reserved for the adjustment of the lodestar using the twelve Johnson factors. That is, once the basic fee is calculated, the Court may adjust the amount upward or downward. Rarely are all factors applicable, however, and a trial judge may give them different weights. Id. The “Johnson factors” are (1) the time and labor required; (2) the novelty and difficulty of the legal questions; (3) the requisite skill to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717–19. The court may not consider Johnson factors it already used to calculate the lodestar amount. Black v. SettlePou, P.C., 732 F.3d 492, 503 (5th Cir. 2013).

 

The Court found that the lodestar need not be modified in this case based on the twelve factors, and therefore finds that an award of attorney’s fees of $19,057.50 was reasonable. Petitioner sought $9,149.08 in costs under Federal Rule of Civil Procedure 54(d) and Section 9007(b)(3) of ICARA. Rule 5 4(d) provides that costs “shall be allowed as of course to the prevailing party.” Section 1920 defines the term “costs” as used in Rule 54(d) and enumerates the expenses that a federal court may tax as a cost under the authority found in Rule 54(d). Gaddis v. United States, 381 F.3d 444, 450 (5th Cir. 2004); see also Crawford Fitting Co. v. Gibbons, 482 U.S. 437, 441 (1987). Thus, unless otherwise authorized by statute, the types of costs that may be awarded under Federal Rule of Civil Procedure 54(d) are limited to those enumerated in 28 U.S.C. § 1920. Id. Section 1920 provides: A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. 28 U.S.C. § 1920.

Article 26 of the Hague Convention further provides the judiciary with the discretionary authority to direct an award of costs upon ordering the return of the child. “ICARA goes beyond the discretion bestowed by the Hague Convention and includes a mandatory obligation to impose necessary expenses, unless the respondent establishes that to do so would be ‘clearly inappropriate.’ ” Salazar, 750 F.3d at 519 (quoting Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 346 (5th Cir. 2004)). Specifically, ICARA provides that, in connection with “[c]osts incurred in civil actions”:

The Court awarded:  $402.00 for the fees of the clerk;  $65.00 of the $141.60 requested for service of summons;  $342.28 for “fees and disbursements for printing; $3,416.06 in transportation costs under ICARA. Post-judgment interest shall accrue at a rate of 5.18% per annum.

 Petitioner sought an award of $29.35 for postage and $19.43 for wire transfer fees (charged in connection with payments to his counsel). Postage is not included in section 1920 and is not recoverable as a cost. Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D. Tex. 1997). Similarly, the Court can find no basis for an award of wire transfer fees in § 1920. Because they were not necessarily incurred to secure the return of the children, these costs in the total amount of $48.78 were denied, and Petitioner’s award of costs is reduced by this amount.

 

Petitioner was awarded a total of $23,282.84 in attorney’s fees and costs, together with post-judgment interest thereon at the rate of 5.18% thereon,

 

Brandt v Caracciolo, 2023 WL 7015680 (Fourth Circuit, 2023) [Sweden][Petition denied[[Wrongful retention not established]

 

[Sweden][Petition denied[[Wrongful retention not established]

 

In Brandt v Caracciolo, 2023 WL 7015680 (Fourth Circuit,2023) the Fourth Circuit affirmed by unpublished opinion (Unpublished opinions are not binding precedent in this circuit.) the denial of the petition of Minna-Marie Brandt (“Appellant”) for return of her minor children to Sweden. It held that the Appellant failed to demonstrate wrongful retention of the minor children in violation of her custody rights.  

Appellant, a Swedish citizen, met Appellee, a United States citizen, in 2015 while Appellee was in Sweden. The two began an on-again, off-again relationship that continued through 2021. Throughout their relationship, the parties sometimes resided together in Sweden. Although they never married, Appellant and Appellee have two children together: a son, S.C., and a daughter, J.C. The children were born in Örebro, Sweden, in 2016 and 2019 respectively, and were Swedish citizens. Until April 16, 2021, the children lived continuously in Sweden with Appellant. Appellee also resided with them intermittently. During this time, the children took a few short trips to visit Appellee’s family in the United States. Appellant maintained sole custody until March 2020, when the parties reached a custody agreement. Appellant agrees the parties held joint custody pursuant to their agreement. On December 30, 2020, social services in Sweden (“social services”) began an investigation into the safety of Appellant’s home and the children’s’ welfare. According to Appellant, social services advised that the children may be moved to foster care. Appellant contends that the parties then discussed Appellee taking the children to the United States for a three-month trip. In contrast, Appellee claims the parties agreed that the entire family would move to the United States and Appellee would obtain citizenship for the children. On April 16, 2021, Appellee and the children traveled to North Carolina, where they have remained. Appellee brought along the children’s passports, as well as most of their clothing and toys. On July 3, 2021, Swedish Social Services sent a letter to the parties stating that “[s]ocial services were planning to place the children in temporary care,” but that the parties had “finally [come] to the agreement that the children could live with [Appellee] and [his] family in the U.S. for some time.” On July 6, 2021, as part of the ongoing custody dispute in Sweden, a Swedish district court entered an “interim decision” confirming that the parties had joint custody of the children, pending resolution of the custody dispute. And while it acknowledged that the children resided with Appellee in the United States, the Swedish district court’s interim order did not require Appellee to return the children to Sweden. Nevertheless, on July 7, 2021, when the children did not return to Sweden, Appellant reported that they had been kidnapped by their father. On July 21, 2021, Appellant filed an application with the Swedish Ministry for Foreign Affairs pursuant to the Hague Convention, seeking return of the children to Sweden. *2 On March 31, 2022, the Swedish district court entered a final order awarding Appellee sole custody of the children and providing Appellant with a right of contact in the form of a weekly call. Thereafter, on July 6, 2022, Appellant filed a petition in the Western District of North Carolina, for return of the children. After considering the evidence, the district court denied Appellant’s petition.

 

Appellant argued that the district court erred by ignoring her joint custody rights and improperly placing exclusive reliance on the March 31, 2022 order from the Swedish district court, which, despite being issued nearly a year after the alleged wrongful retention, awarded Appellee sole custody. However, this is not what the district court did.

 The district court began by correctly identifying “the relevant time period [a]s April through July 2021,” the period when the children traveled to the United States. As this court has explained, “the only reasonable reading of the [Hague] Convention is that a removal’s wrongfulness depends on rights of custody at the time of removal.” White v. White, 718 F.3d 300, 306 (4th Cir. 2013) (emphasis is original). Thereafter, the district court explicitly stated that “[t]he March 2022 custody order is not dispositive as a matter of law on the issue of wrongful retention ... [b]ut the [c]ourt [did] consider that order as evidence.”

While the Hague Convention prevents a person from “insulat[ing] the child from the ... return provisions merely by obtaining a custody order in the country of new residence, or by seeking there to enforce another country’s order,” it does not preclude the court from considering the facts and circumstances surrounding any such order. 51 Fed. Reg. 10494-01, 10504. To the contrary, the Hague Convention expressly permits “the judicial or administrative authorities of the requested State⁷ [to] take account of the reasons for [a decision relating to custody] in applying this Convention.” Hague Convention art. 17, T.I.A.S. No. 11,670, at 5. Moreover, nothing in the Courts precedent prevents the district court from considering the full panoply of circumstances surrounding the alleged retention. This included the March 31, 2022 order. Therefore, the district court did not err in considering the March 31, 2022 final custody order.

 

“Rights of custody” as defined by the Hague Convention arise by: (1) operation of law; (2) judicial or administrative decision; or (3) an agreement having legal effect pursuant to the law of the state of habitual residence of the child prior to the wrongful abduction. 51 Fed. Reg. 10494-01, 10506 (citing Hague Convention, art. 3, T.I.A.S. No. 11,670, at 2). And, pursuant to Article 14 of the Hague Convention, a court “may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of habitual residence” in order to determine whether the removal breached Appellant’s custodial rights. Hague Convention art. 14, T.I.A.S. No. 11,670, at 5. Appellant contended that, as joint custodian of the minor children at the time of retention, Swedish law provides her with the right to “make decisions concerning the child[ren’s] personal affairs,” including determining where the children reside. J.A. 270; Föräldrabalk [FB] [Children and Parents Code] 1983:47 (Swed.). In support, Appellant directed this court to section 14a of the Swedish Children and Parents Code. But nothing in section 14a suggests Appellee violated Appellant’s joint custody rights. Section 14a merely states, “[i]f both parents have custody of the child the court may, on application of one or both of them, decide which of the parents the child is to live with.” Föräldrabalk [FB] [Children and Parents Code] 2006:458 (Swed.). Here, the parties both presented evidence that a Swedish custody dispute and child welfare investigation was ongoing during the time period preceding the purported retention. And to prevent the children from being placed in foster care, the parties agreed that Appellee would take the children to the United States. While the parties dispute the permanency of this stay, Appellant bore the burden of proving that Appellee wrongfully retained the children. She failed to do so.  In reaching its conclusion that Appellant had failed to meet her burden to demonstrate wrongful retention, the district court relied on Appellant’s own testimony that she, as a joint custodian, had consented to the children taking an indeterminate trip to the United States to live with Appellee. Specifically, the district court relied upon Appellant’s testimony at the evidentiary hearing that “it was up to [Appellee] to decide [the departure and return dates] himself.” Thus, by Appellant’s own concession, there was not a meeting of the minds that Appellee would return the children on a specific date -- or at all. “Appellee possessed physical and legal custody of the children at the time of the alleged retention. And since a primary purpose of the Hague Convention is to “preserve the [pre-removal or pre-retention] status quo,” it  concluded that the children indefinitely staying with the joint custodial father, in the United States, was the status quo. White, 718 F.3d at 306 (quoting Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001)). As such, there was no wrongful retention in the first instance.

 

Recent Hague Convention District Court Cases - McElligott v McElligott, 2023 WL 6923493, NOT FOR PUBLICATION, (D. New Jersey, 2023)[Ireland][Petition granted][Necessary fees and costs]

 

In McElligott v McElligott, 2023 WL 6923493, NOT FOR PUBLICATION, (D. New Jersey, 2023) the district court granted in part the unopposed Motion for Attorney’s Fees by Stephen McElligott which sought an award of $68,623.10 in attorney’s fees pursuant to 22 U.S.C. § 9007 Petitioner was awarded the reduced amount of costs and fees of $68,327.00.

 

After the Court granted the Petition and ordered C.M. returned to Ireland. Petitioner filed a Motion for Attorney’s Fees accompanied by an attorney certification stating that Petitioner’s attorneys had worked 296.85 hours on the matter at a requested rate of $200.00 per hour. Because Petitioner was represented pro bono, Petitioner’s counsel did not charge Petitioner. However, counsel certified that attorneys at Rutgers Law Associates charge clients represented through the Victims of Crime Compensation Office at a rate of $200.00 per hour, which typically involves work similar to Hague Convention matters. Petitioner also sought $6,453.10 in other expenses, including “fees for filings, our expert’s report, travel expenses, postage, and expenses from accompanying the minor child to boarding his flight to Ireland.”  Petitioner’s Motion in total requested $68,623.10, which includes $59,370 in attorney’s fees (296.85 hours × $200.00 per hour) and $9,253.10 in expenses ($8,425.00 in expert witness fees + $828.10 in other fees). Respondent offered no evidence that an award of costs and fees would be “clearly inappropriate” here.  The Court applied the Lodestar approach to determining whether Petitioner’s requested award of attorney’s fees is appropriate. See Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998); Soulier v. Matsumoto, No. 20-4720, 2022 WL 17250549, at *1 (D.N.J. Nov. 28, 2022). Respondent did not contest Petitioner’s application and offered no evidence rebutting Petitioner’s prima facie case that his attorney’s fee rate was reasonable. See McCutcheon v. Am.’s Servicing Co., 560 F.3d 143, 150–51 (3d Cir. 2009) Thus, the Court accepted $200.00 per hour as a reasonable rate for the complex, time-sensitive representation Petitioner’s counsel performed here. The Court found that the amount of time billed on this matter, in light of the exigent circumstances driving this Hague Convention litigation and the need to prepare for trial in a short time frame, was reasonable. The court granted the requested $59,370.00 in attorney’s fees.  Petitioner sought $8,425.00 in expert witness fees—comprising $5,625.00 for the initial expert report, $1,400.00 for the expert’s deposition appearance, and $1,400.00 for the expert’s appearance at trial. The court found this unopposed request for necessary expenses reasonable. This falls squarely within the “court costs” contemplated by ICARA. 22 U.S.C. § 9007(b)(3). The balance Petitioner sought was $296.10 in expenses for gas and parking for commuting to the courthouse and the airport; counsel’s meal at the airport; and a postage fee to send an expert’s fee by overnight mail. The Court found that the $296.10 in expenses do not fall within the “necessary expenses” encompassed by ICARA, and therefore must be excluded from the fee award. Therefore, the Court awarded only $8,957.00 in costs and fees. The fact that Petitioner did not pay for the expense of litigating the Petition out of pocket—as he was represented pro bono—does not bar the recovery of attorney’s fees. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) Nonetheless, in evaluating the reasonableness of fees, the Court considers whether Petitioner would have permitted his attorney to expend such resources had he been required to pay for them out-of-pocket. See Cillikova, 2016 WL 541134, at *5 n.2

Galaviz, v. Reyes, --- F.4th ----, 2023 WL 6619478 (Fifth Circuit, 2023) [Mexico] [Petition granted][Grave risk of harm]

 

In Galaviz, v. Reyes, --- F.4th ----, 2023 WL 6619478 (Fifth Circuit, 2023)  Galaviz and Reyes had two children in Mexico together, Andrew and Grace. After Galaviz and Reyes separated, the children remained in Mexico with Galaviz. In July 2021, Reyes took the children to El Paso and refused to return them. Galaviz filed an action in the district court requesting the return of the children to Mexico under the Hague Convention. Reyes raised two affirmative defenses claiming that returning the children would violate their fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court concluded that Reyes had satisfied his burden and denied Galaviz’s request for return of the children. The Fifth Circuit reversed and remanded with instructions that the court enter an order that the children be returned to Mexico.

 Andrew and Grace were four and five years old respectively at the time of the district court proceedings. After Galaviz and Reyes separated, the children remained in Juarez, Mexico under Galaviz’s care. Reyes moved out of the home and relocated to El Paso, Texas. Galaviz and Reyes have no formal custody or possession court orders in place governing each parent’s custodial rights. In July 2021, Reyes took the children to El Paso for an appointment with a physician and declined to return them. In August, Galaviz filed a petition for custody of the children with the Seventh Family Court for Hearings in the Judicial District of Bravos, Chihuahua, Mexico. Galaviz has yet to obtain service on Reyes. In November, Galaviz filed a Verified Petition for the Return of the Children under the Hague Convention and the International Child Abduction Remedies Act (ICARA) in the Western District of Texas, El Paso Division.

 The district court held a trial. Reyes conceded that Galaviz met her burden of establishing a prima facie case of wrongful removal by a preponderance of the evidence. The burden then shifted to Reyes, who opposed the return, to establish an exception.¹ Reyes raised the exceptions set forth in Articles 20 and 13(b) of the Convention. As to Reyes’s Article 20 defense, the district court concluded that “[Galaviz’s] inability to be present with the children, as required so that they can attend school, effectively denies the children the fundamental right to an education,” and “[t]he denial of an education to two special needs children in their most formative years utterly shocks the conscience of the court.” As to Reyes’s Article 13(b) defense, the court concluded that “[t]he incidents of abuse and neglect collectively and the strong suggestion of sexual abuse constitute a grave risk of physical and psychological harm and an intolerable situation should the children return to Juarez.” The court concluded that Reyes had established these exceptions by clear and convincing evidence² and denied Galaviz’s request for the return of the children to Mexico.

 The Fifth Circuit observed that the Article 20 defense allows repatriation to be denied when it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.’ ” Article 20 is to be “restrictively interpreted and applied.” It “is not to be used ... as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.” This exception should only be “invoked on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.” The district court found that while in Galaviz’s care, the children did not attend preschool or kindergarten due to the school’s requirement that Galaviz attend school with them to help with their special needs. Because Galaviz was unable to comply with this requirement, the children did not attend school. These findings do not establish an Article 20 defense. The district court focused on Galaviz’s actions or inactions regarding the children’s education, not on Mexican laws or policies that would prohibit return. The court even acknowledged that “the law in Mexico may provide for special education.” By focusing on Galaviz’s actions or inactions, the court essentially made an impermissible custody determination. Reyes did not present clear and convincing evidence demonstrating that the return of the children would utterly shock the conscience of the court or offend all notions of due process.

 The district court concluded that Reyes presented evidence demonstrating a history of neglect and abuse by Galaviz for ten reasons: While in Galaviz’s care: “(1) the children’s physical and cognitive abilities declined;” “(2) the children did not attend school although they suffered severe special needs;” “(3) [Grace] received no treatment for her special needs;” “(4) the children remained completely non-verbal;” “(5) the children’s healthcare needs were being neglected as the children were missing vaccines, and had unaddressed auditory, visual, and dental issues;” “(6) the children’s hygiene was being neglected;” (7) “the children’s ability to use the toilet had regressed and the children reverted to using diapers;” (8) “the children had been physically abused;” (9) “there was a strong suggestion the children experienced sexual abuse;” and (10) “Petitioner presented no evidence of a suitable means of childcare while she is at work.” The Fifth Circuit held that the findings pertaining to neglect (findings (1), (2), (3), (4), (5), (6), (7), and (10)) did not satisfy the clear and convincing evidence burden. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of proving clear and convincing evidence. In the present case, the district court’s findings regarding the children’s healthcare, including the children’s cognitive decline, the fact that they remained non-verbal, or their regression to using diapers may be supported by evidence that would be sufficient in a custody dispute. However, this evidence fell short of meeting Reyes’s clear and convincing burden. Finally, Reyes presented no evidence that unsuitable childcare would expose the children to a grave risk of harm. He merely expressed concern that Galaviz often left the children with her older daughters and they did not take care of the children. This is not clear and convincing evidence of a grave risk of harm.

 Next, the evidence related to physical abuse does not establish a grave risk of harm under a clear and convincing burden. The Second Circuit has stated that “[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk” under a clear and convincing burden. Cases concluding that the grave risk exception has been met often involve physical abuse that is repetitive and severe. The district court found that the children had been physically abused based on the children’s behavior and on the testimony of Galaviz’s former friend. The court found that the children cowered and protected their heads when bathing, that Andrew reacted to protect Grace when she spilled her beverage, and that he covered her mouth to quiet her when she cried. Reyes testified that he never saw Galaviz hit the children, but that he observed her yell at them. Reyes stated that he would attempt to conduct video conferences between Galaviz and the children, but that they would become very upset and cry and throw the phone at him. There were other plausible explanations for the children’s behavior. Reyes’s sister acknowledged that it was possible the children did not want to be bathed by someone they didn’t know. The children could have behaved fearfully because of prior actions by Reyes—Galaviz testified that Reyes had punched her, tried to strangle her, and caused swelling, bruises, black eyes, a busted lip, and a broken nose. Galaviz’s former friend testified that she witnessed Galaviz physically abuse the children. She stated that Galaviz hit Andrew with a foam slipper to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult daughter when she confronted her about spanking Andrew. She also testified that Galaviz would hit the children because they would cry. This is not the kind of repetitive and severe abuse seen in cases like Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007) This case was more similar to Altamiranda Vale. The evidence, therefore, did not satisfy an Article 13(b) defense. Neither the evidence of the children’s behavior nor the former friend’s testimony about the alleged abuse meet the clear and convincing burden.

 Lastly, there was no clear and convincing evidence establishing sexual abuse. The district court determined that there was a “strong suggestion of sexual abuse” which constituted a grave risk of harm or an intolerable situation. This “strong suggestion” was based on the findings that Reyes received anonymous text messages stating that Grace and Andrew had been sexually abused with Galaviz’s knowledge, a police report filed by Reyes, a physical examination in which a physician expressed his or her belief that Andrew “could have been sexually abused,” and a police report filed by the physician. This evidence did not meet the clear and convincing evidence burden. In Danaipour v. McLarey, the First Circuit determined that there was a clear and substantial claim of abuse because of evidence including, vaginal redness on one child after her return from visits with her father, the child’s statements to a psychologist that her father had caused the redness, statements by the child that her father had hurt her “pee-pee,” and that she had exhibited symptoms of abuse. Similarly, in Ortiz v. Martinez, the mother had described how she had seen the father molesting the child in the shower, how she had overheard the child tell her father not to touch her anymore, and that the child had exhibited behavior consistent with having suffered sexual abuse. This evidence was sufficient to establish the grave risk exception. By contrast, in Kufner v. Kufner, the First Circuit concluded that the respondent did not establish the grave risk exception despite evidence that the father took four graphic photographs of his children and the children began exhibiting physical symptoms such as bed-wetting, nervous eye twitching, sleeplessness, and nighttime crying and screaming after a vacation with the father.⁵⁷ In the present case, the physician stated that Andrew could have been sexually abused. The Texas Department of Family and Protection Services initiated an investigation but closed it with no findings. The El Paso Police Department also closed its investigation. The district court acknowledged that the text messages could “be from just about anyone with bad intentions.” This court had previously concluded that information from an unknown source is not sufficient to establish a grave risk of harm. The district court erred in concluding that Reyes established an Article 13(b) defense.