Tereshchenko v. Karimi, 2024 WL 80427( S.D. New York.2024) - [Ukraine] [Petition for return of children to Father in France Granted]

 In Tereshchenko v. Karimi, 2024 WL 80427( S.D. New York.2024) the petition filed by Roman Tereshchenko for the return of the children to their Father to reside in his home in France was granted.  Tereshchenko was the father of M.T. and K.T., who were habitual residents of Ukraine before Russia invaded Ukraine on February 24, 2022. They were born, respectively, on March 27, 2016, and June 3, 2017. They were ages seven and six. Their parents, both of whom were citizens of Ukraine, were respondent Yasamin Karimi (“Karimi”) and petitioner Tereshchenko. M.T. was born in Kyiv, Ukraine; K.T. was born in Broward County, Florida. The parents married in Odesa, Ukraine, on April 22, 2017, after the birth of their first child, and divorced the following year, on November 16, 2018. At the time of their marriage, Tereshchenko was 41 years of age and an established, well-to-do international businessman. He frequently traveled internationally, and his office was located in Dubai at the time of the hearing. Karimi was 24 years old when they married. After their divorce, they negotiated a custody agreement (the “Custody Agreement”), which they executed on May 29, 2019. They agreed that the children would reside with the Mother and maternal grandmother in an apartment in Odesa, which Tereshchenko would purchase. The Agreement provided that the children would reside with their Father for at least seven days per month and that the Father could “freely visit” the children and participate in their upbringing. Beginning in early 2019, Karimi began to travel for extensive periods, spending more than half of her time away from Odesa. She moved to London at one point to earn a Masters Degree in “magazine journalism”. Eventually, the children came to live with their Father and his mother. The parents began to file criminal complaints against each other and claims for custody. On October 11, 2021, the Children’s Service of Odesa City Council determined that the children were to reside with their Father in Odesa (“Guardianship Ruling”). Shortly after the ruling had awarded custody to the children’s Father, the Mother abducted the children. It would be almost two years before the Father located them in New York and filed the petition.

 

After Russia invaded Ukraine, Karimi telephoned Tereshchenko and sought access to the children’s travel documents so that she could take them out of the country. At that time, Tereshchenko was out of the country. He agreed to provide her with those documents, which were delivered by his representative but asked that the children be brought to him in Dubai, where he had a home. That did not happen. Using the travel documents provided by Tereshchenko, Karimi took the children to Poland on March 2, 2022, and then to the Netherlands and Spain. On July 11, 2022, she brought them to the United States as part of the U.S. Department of Homeland Security’s “Uniting for Ukraine” program. At no point after she arrived in the United States did Karimi contact Tereshchenko or take any steps to notify him that she had taken the children to the United States or to advise him where the children could be found.

In March 2023 Tereshchenko located an address for Karimi in New York City. This petition was filed on March 8, 2023.

 

On November 21, 2023, the District Court of Odesa issued its decision, ruling that the children are to reside with Tereshchenko (“District Court Decision”). In a lengthy opinion, the District Court found that Karimi had repeatedly violated the terms of the Custody Agreement, had evaded her responsibilities, and had been frequently absent due to her foreign travels. Although Karimi and Tereshchenko had agreed to abide by the decision of the District Court, Karimi changed counsel after the District Court ruled against her and continues to oppose the petition.  

After the hearing, the Court granted the petition 

 

The parties agreed that the children were habitual residents of Ukraine. They also agreed that the law of Ukraine governs the rights of custody over the children and that under that nation’s Family Code, both parents have the right to participate in the decisions regarding where the children reside and the major decisions regarding their lives, such as their medical care and education. These rights survive a divorce. Neither parent may impede the other’s communication with the child, provided that the parent’s involvement with the child does not impair the child’s development. These parental rights exist even when the child resides with just one parent.  

Under Ukrainian law, parents may agree on the residence of a child without court approval. If they are no longer in agreement or are unable to reach a new agreement, either parent may apply to the local Guardianship Body or court to resolve the dispute over the child’s residence. If an application is made to the court, then in the normal course, any prior application to the Guardianship Body is stayed and the court submits its own request to the Guardianship Body for a recommendation. If the court rejects that recommendation, it must explain its reasons for doing so. Any court ruling is stayed pending appeal.

 

The petitioner carried his burden of showing a breach of the Convention by the respondent. Karimi has interfered with Tereshchenko’s rights of custody since November 2021, when she abducted the children and took them to an undisclosed location. While Tereshchenko cooperated with the Karimi to allow the children to leave Ukraine when the Russian war with Ukraine made it unsafe for them to remain in Odesa, he has shown that thereafter Karimi prevented him from exercising his rights under the Ukrainian Family Code to be involved in decisions regarding the children’s residence, medical care, and education and to communicate with his children. She did not take them to Dubai, as he had requested, and unilaterally made the decision regarding where the children would be taken. She did not inform him that she had taken them to the United States. The petitioner has shown that Karimi’s actions in abducting the children and taking them to locations that she did not disclose to the petitioner, including to the United States, have interfered with his rights of custody under the Ukrainian Family Code. That is sufficient to show the wrongful removal and retention required by the Hague Convention.

 

Tereshchenko offered persuasive evidence that under the law of Ukraine, the Custody Agreement lost all force once the parties were no longer willing to abide by it. Thereafter, both parties made applications to Ukrainian authorities to gain custody of the children. The petitioner has shown as well that the Guardianship Ruling went into effect at the time it was issued and has remained in effect since the District Court Ruling accepted it. Thus, since October 2021, Ukrainian authorities have formally awarded custody of the children to their Father. But, as already described, because Tereshchenko has shown that Karimi violated his rights of custody under the Ukrainian Family Code, the fact that she has also refused to comply with the Guardianship Ruling is immaterial to the decision rendered on this petition.

 

The respondent’s chief defense has been that a return to Ukraine would pose a grave risk to the children. She must show by clear and convincing evidence that this defense, which is available under Article 13b of the Hague Convention, applies. 22 U.S.C. § 9003(e)(2)(A). . A grave risk of harm under Article 13(b) arises in two situations:(1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

Id. (citation omitted). The grave risk of harm must be particular to the child, not just a general undesirable condition. Friedrich v. Friedrich, 78 F.3d 1060, 1067-69 (6th Cir. 1996). The U.S. State Department instructs that the grave risk of harm or “intolerable situation” is not intended to encompass a return to a home where living conditions are less than ideal or unlike the living conditions in the country to which the children have been brought. Public Notice 957, 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986). The respondent failed to show that a return of the children to Ukraine would involve the grave risk of harm contemplated by Article 13(b). Tereshchenko represented that, if required by the Court, he would move with the children to a location in western Ukraine that is outside the zone of combat and danger. This offer is sufficient to defeat the Article 13(b) defense. In 2022, after Russia had begun its war with Ukraine, a court in the United Kingdom ordered the return of a child to a town in western Ukraine, finding that the risk of armed conflict was lower than the Article 13b “grave risk of harm” threshold. Q v. R, (2022) EWHC 2961 (Fam) at ¶¶ 56-66. In any event, as further described below, the Court will not require Tereshchenko to return to Ukraine.

 

Making essentially the same argument about the danger posed by a return to Ukraine during a period of war, the respondent relies next on Article 20 of the Hague Convention.. For the reasons just explained, the return of the children to Western Ukraine would not constitute that rare occasion when the return of the children to the Father’s custody would shock the conscience. Therefore, this defense failed.

 

Respondent relies as well on Article 13a of the Hague Convention, which provides a defense of consent and acquiescence. Karimi argues that the petitioner consented to her removing the children from Ukraine. She points to his assistance in providing her with their travel documents so she could take the children out of the country after the war broke out. This consent was narrow. Karimi has failed to show that Tereshchenko consented at any time to her taking the children to undisclosed locations, including the United States, or interfering with his access to them.

Finally, the respondent argued that the petitioner may only seek the return of his children to Ukraine, and not to France. This argument failed. When a petitioner has succeeded in his claim, it may be appropriate to restore the children to him at his current residence even when that residence is not in the country that was the children’s habitual residence. In the circumstances that exist here, that is appropriate. The purpose of the Convention, as stated in the preamble, is to return a child to their country of habitual residence for the resolution of any custody dispute. None of these cases, however, addressed whether a court, in ordering the return of a child to a parent, may order that the return be to a parent’s current abode in a third country. And, apart from the Preamble, no other provision of the Convention refers to the return of the child to the state where they were once habitually resident. Article 12, which requires the “forthwith” return of the child, requires only that the authority granting the petition order “the return” of the child. Hague Convention, Art. 12. A decision issued recently in the United Kingdom has addressed this very issue and opined that the Hague Convention permits a court, in the exercise of its discretion, to return a child to a parent now living in a third state. In Re B (A Child), (2020) EWCA Civ. 1187, at ¶ 104. In In Re B, Lord Moylan explained that the Hague Convention did not accept “a proposal to the effect that the return of the child should always be to the State of its habitual residence.” Id. at ¶ 108 (citing the Perez-Vera Report). Lord Moylan further opined that “to confine the terms of Article 12 to permitting a return only to the state of habitual residence at the relevant date would not promote the objectives of the [Hague Convention].” Id. at ¶ 110.

 

Where a petitioner no longer lives in what was once the child’s habitual residence, it makes little sense, and is contrary to the protections of the child from the harmful effects of abduction, to order the return of the child to a country in which the petitioner no longer lives. Here, Ukraine’s current laws provide additional support for this outcome. They allow a relative to unilaterally remove a child from Ukraine. In response to the war with Russia, the Executive Order of March 21, 2022 states that a child under the age of 16, accompanied by “one of [their] parents, grandparents, brother, sister, stepmother or stepfather” or another person authorized by one of the parents in a written statement certified by the Guardianship Body, may leave Ukraine upon presentation of documents containing information about the person accompanying the child. On Approval of the Rules of Crossing the State Border by Citizens of Ukraine, Ministry of Social Policy of Ukraine. The petitioner seeks to relocate the children to his home in France. Even if the Court required the children to be taken to him in Ukraine, Ukrainian law permits him, because of the exigencies of the war, to take them immediately to live with him in France. It would elevate form over substance, in these circumstances, to require him to take the children into Ukraine before he could take them to his home in France. It would also add to the children’s trauma. That trauma can and should be avoided. 

Recent Hague Convention District Court Cases - Harvey v Means, 2024 WL 324980 (W.D. Washington, 2024) [Scotland][Petition granted][Coercion not established][Grave risk of harm not established] .

 [Scotland][Petition granted][Coercion not established][Grave risk of harm not established]

In Harvey v Means, 2024 WL 324980 (W.D. Washington, 2024) the Court granted Petitioner Dale Harvey’s petition for the return of his children, Z.H.M. and E.H.M., to Scotland.  Means and Harvey were the parents of Z.H.M. and E.H.M., ages six and four. Harvey was a citizen of Scotland and Means was a United States citizen, born and raised in Washington state. Her parents and extended family continue to reside in the Seattle area. Means and Harvey married on April 12, 2015, in Seattle, Washington. From the early days of their marriage, Harvey and Means experienced troubles in their relationship. In 2017, Harvey and Means moved from Brighton, England to Glasgow, Scotland, and purchased a flat. Later that year, their eldest daughter was born. Their youngest daughter was born two years later in 2019. Means and Harvey split primary caretaking responsibility evenly. Until the events giving rise to the Petition, the children resided at all times in Glasgow, Scotland, where they attended daycare and nursery. In 2019, Means began expressing her desire to relocate to the U.S. to be closer to her family and friends. Harvey objected to resettling in another country. In February 2020, Means initiated custody proceedings in Scotland, seeking to relocate the children to Washington. Harvey opposed the request, but due to COVID-19 lockdowns, the Scottish court delayed a contested hearing on the matter.  In April 2020, during the custody proceedings, Means accused Harvey of sexually abusing Z.H.M. On April 7, 2020, Means contacted the National Society for the Prevention of Cruelty to Children (NSPCC). After receiving a referral from NSPCC, a Duty Social Worker, Scott Andrew McCabe, as well as Child Protection officers visited Harvey and Means’s home on April 8, 2020.  On April 9, 2020, a consultant pediatrician conducted a medical examination of Z.H.M. The pediatrician told McCabe there were no internal or external injuries and no signs of abuse. Means does not contest the pediatrician’s findings and conceded there was no physical evidence of sexual abuse. Means did not allege other occurrences of sexual abuse after or before April 2020. A couple of weeks later, Means walked in Z.H.M.’s bedroom to find her with Harvey not wearing pants or underwear. Means saw Harvey put something in his pocket and he said, “the last time you accused me of being a pedophile, you said you needed therapy.”  Harvey and Means’s relationship continued to deteriorate and they officially separated. In 2021, Z.H.M. told Means that she had taken a bath with Harvey. According to Harvey, this did not happen. It would have been logistically impossible given the size of their bath. On August 12, 2022, Sheriff Charles Lugton issued a judgment in which he denied Means permission to relocate with the children to Washington and awarded each parent 50 percent custody. He found Means made false sexual abuse allegations against Harvey. The judgment was later modified to prevent Means from removing the children from their current school and nursery and enrolling them elsewhere without Harvey’s permission. Means filed for divorce on April 28, 2023. On September 30, 2023, Means left Scotland with the children and moved to Seattle, Washington. At the time Means left with the children, Harvey was exercising his custodial rights. On November 8, 2023, Harvey filed a Petition for Return with this Court as well as a motion seeking an ex parte temporary restraining order transferring the children to his custody. In her sworn petition, Means stated that after her trip to Seattle with the children, she became “suicidal” when the children were with Harvey and she “knew [she] had to go home.” She left Scotland with the children to return to Seattle, knowing that doing so breached the Scottish custody order. She stated that if the children are forced to return to Scotland, “this holiday season will be the only one they ever spend in the US with their family and the last one they spend with me until adulthood.” She did not allege in the petition that the children will face abuse, sexual or otherwise if they are returned to Scotland.

The District Court found that Harvey established a prima facie case for the return of the children. Both children were born in Scotland and resided there exclusively until Means took them to the U.S. on September 30, 2023. At the hearing, Means argued that the children were born and remained in Scotland because of Harvey’s coercion. Means testified that she was unhappy in Glasgow and wanted to continue living in Brighton rather than move before Z.H.M.’s birth. Means also testified that she felt dependent on Harvey for her continued immigration status. Harvey testified he never threatened to revoke Means’s immigration status, and Means does not dispute this testimony. Means did not raise coercion as an issue in the Scottish court relocation proceedings. The Court found that Means’s claims about coercion lack credibility. The Court held that even if the Court accepted Means’s testimony as true, it failed to rise to the level of coercion because nothing suggested Means did not voluntarily move to and remain in Scotland with Harvey for the birth of their children. See Tsuruta v. Tsuruta, 76 F.4th 1107, 1110-11 (8th Cir. 2023) Moreover, coercion cannot be established simply because Harvey did not agree to allow Means to relocate to the United States with their children. See Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir. 2003) (finding a respondent’s “subsequent, post-move desire to return to the United States,...d[id] not change the legal conclusion that the habitual residence of the children changed[.]”). Means grew to dislike Glasgow as her marriage and mental health worsened, but a change of heart cannot override the clear conclusion that Scotland was the children’s habitual residence.

The District Court found that Means failed to establish the children will be at risk of grave danger if returned to Scotland. Means testified that the children would suffer harm if returned to Scotland because they would effectively lose their mother. She claimed she cannot return to Scotland because she felt suicidal there and when in Washington, she no longer experiences suicidal ideations. Means offered her medical records to argue this point. She also testified she would be unable to find employment or housing in Scotland and she could be subject to criminal prosecution for taking the children away in violation of the Scottish court order. The possible loss of access by a parent to the child—and vice versa—does not constitute a grave risk of harm per se under Article 13(b). Souratgar v. Lee, 720 F.3d 96, 106 (2d Cir. 2013); see also Charalambous v. Charalambous, 627 F.3d 462, 469 (1st Cir. 2010) (“[T]he impact of any loss of contact with the [parent] is something that must be resolved by the courts of the Children’s habitual residence.”). The Court found no unique harm posed by separating the children from Means beyond that “expected on taking a child away from one parent and passing the child to another.” See Nunez-Escudero, 58 F.3d at 377. As one Court observed, “[i]f the difficulty caused by such separation were deemed sufficient to satisfy the grave risk exception, the purposes of the Convention would be largely frustrated.” Aguilera v. De Lara, No. CV14-1209 PHX DGC, 2014 WL 3427548, at *5 (D. Ariz. July 15, 2014). It also found that the alleged abuse suffered by Means did not establish a grave danger to the children. Means also testified Harvey emotionally abused her during their marriage by surveilling her email account, physically blocking the door when she tried to take one of her daughters to lunch one time, and threatening to leave her. A grave risk to the respondent parent, however, does not automatically qualify as a grave risk to the children. See Charalambous, 627 F.3d at 468 (finding that the respondent parent “failed to draw a connection establishing, by clear and convincing evidence, that any risk to her constituted a grave risk to the children” even though she had endured some verbal and emotional abuse as well as one incident of physical abuse given that the children did not witness it). Courts may find a grave risk of harm if a respondent demonstrates “[s]pousal violence ...particularly when it occurs in the presence of the child.” Colchester, 16 F.4th at 718 (listing authority). Means and Harvey had a tumultuous marriage, but it was not until their divorce proceedings that Means would begin to characterize Harvey’s conduct as emotionally abusive. And while Means claims that Harvey emotionally abused her, she did not allege that he emotionally abused the children. Means could not link the conduct she allegedly suffered to any potential risk posed to the children. Whatever the dynamic was between Means and Harvey, it appears limited to their private interactions, and now that they are separated, the risk of the children suffering as collateral damage to their fighting is greatly diminished.

 

Means raised the same allegation she raised in the Scottish court— that Harvey sexually abused Z.H.M. in April 2020 based on blood found in her underwear. Means also testified about two other incidents involving Harvey and the children that gave her pause. Means admitted, however, that she has no physical evidence of sexual abuse and that she does not suspect Harvey sexually abused the children on any other occasion. Harvey offered a plausible alternative explanation for the blood in Z.H.M.’s underwear. A doctor examined Z.H.M. two days after the injury and found no external or internal signs of sexual abuse. A social worker also investigated and found no abuse. The Scottish court dismissed these allegations as false. The Court found Means’s testimony less than credible and that the evidence—or her speculation about the cause of the blood—does not meet the clear and convincing standard. Means admitted that she did not have strong evidence to support her sexual abuse allegation. 

Recent Hague Convention District Court Cases - Bre v Aguirre, 2023 WL 8371981( S.D. Florida, 2023)[Argentina][Habitual residence][Petition denied]

 

 

In Bre v Aguirre, 2023 WL 8371981( S.D. Florida, 2023) the District Court denied the  mothers Petition to have her minor child, I.A.B., returned to her custody in Argentina.

 The child was born in the United States in January 2015, but in 2017 moved to Argentina with the Petitioner. On or about December 15, 2022, I.A.B. traveled to the United States to spend the Argentine summer break period with the Respondent, ending on March 15, 2023. The Respondent never returned I.A.B. to Argentina, and I.A.B. remains in the United States. The Petitioner alleged that she never consented to the child’s retention in the United States following the child’s short-term visit to Florida.

 In opposition to the petition, the Respondent argued in his motion to dismiss and at the hearing that I.A.B. was born in the United States and that a Parenting Plan established by the Eleventh Judicial Circuit in and for Miami-Dade County established by mutual agreement that I.A.B.’s country of habitual residence is the United States. Courts must consider the totality of the circumstances in determining the habitual residence of a child for Hague Convention purposes. Monasky v. Taglieri, 140 S. Ct. 719, 729 (2020). “As best I can determine, the concept of “habitual residence” [...] means the place where the child in fact has been living for an extended period—unless that place was never regarded as more than temporary or there is another place to which the child has a strong attachment.” Id. at 734-35 (2020) (Alito, J., concurring). I.A.B. was born in Miami and lived here with both parents until 2017, when the Petitioner moved to Argentina due to immigration issues, bringing the child with her. The child did not hold Argentine citizenship. In June 2021, the parties signed a Parenting Agreement, under the terms of which it was agreed the child would live with the Petitioner in Argentina until she was ten years old (January 2025), at which time she would return to Miami, and the Respondent was allowed time sharing in Miami during the extended summer and winter school breaks until that time. In December 2022, the Petitioner allowed the Respondent to exercise his summer visitation and allowed the paternal grandfather to take the child to Miami with the understanding the child would be returned to Argentina in March 2023. The grandfather returned to Argentina in March 2023 without the child, who remains living in Miami with the Respondent. The Respondent told the Petitioner he did not intend to return the child.

 The Petitioner claimed that she was defrauded into signing the Parenting Plan because she did not understand the contents of the document when she signed it, and that the United States therefore should not be regarded as the child’s habitual residence. The Court held that a person seeking to disavow a contract based upon their claim of not being proficient in English must establish more than lack of English proficiency to render the contract unenforceable, such as fraud on the part of the other party. “[I]nability to read in English will not preclude a person from entering into a binding contract that he signs without reading.” “Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.” Federal courts have similarly found that inability to understand English does not invalidate a contract.. The Petitioner testified that she believed that the documents merely established the Respondent’s paternity of the child and set forth the legal name of the child agreed to by the parties. However, this subjective belief was insufficient to establish that the Petitioner’s agreement was fraudulently obtained.  The Court therefore concluded that I.A.B.’s habitual residence was the United States based upon the totality of the circumstances, including her parents’ shared intentions as reflected in the Parenting Plan and Final Judgment of Paternity and the child’s practical circumstances. Because the child was currently present in the country of habitual residence, relief under the Hague Convention was not available. See Hague Convention Preamble, T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 89, at 98.

 

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.