Horacius v Richard, Not Reported in Fed. Rptr., 2024 WL 3580772 (11th Circuit, 2024)[Canada] [Petition granted] [Habitual residence] [Exercise of discretion to order return dispositive]

In Horacius v Richard, Not Reported in Fed. Rptr., 2024 WL 3580772 (11th Circuit, 2024) the Eleventh Circuit affirmed the of the district court, granting Eric John Horacius’s petition for the return of Richard’s and Horacius’s minor child, A.H., to Canada.

Richard and Horacius were married in Canada in 2018. Horacius was a dual citizen of the United States and Canada. Richard and A.H. were  Canadian citizens. At the time of A.H.’s birth, in March 2020, Richard and Horacius lived together in Quebec. Around December 2020, when A.H. was nine months old, Richard and Horacius took A.H. to the Dominican Republic to visit Richard’s parents. The parties left the Dominican Republic in February 2021 and traveled directly to Florida. From February 2021 until the alleged wrongful retention began in March 2022, A.H. lived with Richard and Horacius at the home of Richard’s sister in Miramar, Florida, “by mutual agreement of the parties.” A.H. has biological brothers, grandparents, and extended family in both Canada and Florida. While living with Richard and A.H. in Florida, Horacius: (1) obtained a Florida driver’s license using Richard’s sister’s Miramar address; (2) applied for and received a notary commission in Florida using the Miramar address; (3) obtained a Florida concealed weapons permit using the Miramar address; and (4) registered to vote in Florida and maintained active voter status there at the time of trial. Horacius also filed affidavits of support with United States immigration authorities for Richard and A.H. to become permanent United States residents, and he listed the Miramar address as his residence on the affidavits. In January 2022, after A.H. had been living in Florida for nearly a year, Horacius left and returned to Canada alone. The following month, in February 2022, Richard filed a divorce petition against Horacius in Florida state court. Horacius then purchased and sent airline tickets for Richard and A.H. to return to Canada around March 2022, but Richard refused to return.

 

Richard’s refusal to return with A.H. to Canada, in March 2022, marked the point at which the alleged wrongful retention began. Horacius filed his ICARA petition in November 2023. By the time of trial, in January 2024, A.H. had been living in Florida for nearly three years. The district court granted the petition.

 

On appeal, Richard argued that the district court erred in (1) concluding that A.H.’s habitual residence was Canada; (2) determining that she had violated Horacius’s rights of custody under Canadian law; and (3) rejecting her defense based on A.H.’s well-settled status in the United States. The Eleventh Circuit affirmed the district court’s factual findings and its exercise of discretion to return A.H. to Canada.

 

Although neither the Hague Convention nor ICARA defines the term “habitual residence,” precedent interpreting the phrase has looked to whether a child has lived in the place with “a sufficient degree of continuity to be properly described as settled.” (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1252 (11th Cir. 2004)). When analyzing whether a child’s habitual residence has changed from one country to another, we have “held that ‘[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.’ ” “The ‘unilateral intent of a single parent,’ ” is not enough, standing alone, “to change a child’s habitual residence.”. Instead, “a court must ... determine whether the parents or guardians ... shared an intent to change the child’s habitual residence.” Richard’s first argument was that the district court erred in concluding that A.H.’s habitual residence was Canada. She argued that A.H. spent significantly more time in the United States than in Canada, and she pointed to several facts in the record that supported the conclusion that she and Horacius shared an intent to live in the United States. She noted that she and Horacius had obtained an early termination of the lease of their condominium in Canada; that Horacius obtained a Florida driver’s license and Florida notary public commission using their address in Florida; and that Horacius sought to buy a home in Florida. The district court found Richard not to be credible regarding the parties’ intention to relocate to the United States, and the Court held it must afford that finding significant deference. The district court also correctly identified the applicable “totality-of-the-circumstances standard,” so review of its conclusion about A.H.’s habitual residence was only for clear error. Monasky, 589 U.S. at 84. While review of the record evidence showed that it is a close call whether A.H.’s habitual residence was Canada, rather than the United States, it did not have a “definite and firm conviction that a mistake has been committed.” Instead, the record contains sufficient evidence to support the district court’s conclusion that Canada was A.H.’s habitual residence. Among this evidence was the fact that Richard stated that the family’s stay would be temporary to obtain a B-2 visa when she entered the United States. In addition, Horacius’s and Richard’s belongings remained in a storage unit in Canada during their stay in Florida. Although Richard applied for American citizenship during her time in Florida, that application did not weigh heavily in her favor, as citizenship and residence are not coterminous. For instance, Horacius was a citizen of both Canada and the United States but was only a resident of Canada. Given the facts and the district court’s credibility determination, it could not be said that the district court’s view of the evidence was an impermissible one. Therefore, Richard had not shown clear error in the district court’s conclusion that A.H.’s habitual residence was Canada.

 

Richard did not dispute that Horacius had custody rights relating to A.H. under Canadian law, nor argued that he was not exercising those rights when the retention of A.H. began. She only disputed that her retention of A.H. breached Horacius’s custody rights. However, she conceded at trial that Horacius “should be involved in major decisions involving A.H.” and that she had made “major decisions such as schooling and medical treatment for A.H. without first speaking” to him. Richard’s counsel also conceded at oral argument that Horacius was attempting to exercise his rights of custody both before and after he left Florida, including by insisting that A.H. return to Canada. The Court concluded that these concessions, when considered with the facts described above and our review of Canadian law, show that the district court’s finding that A.H.’s retention violated Horacius’s custody rights was, again, a “permissible view[ ] of the evidence.”.Because Richard had not shown clear error in this respect either, the Court affirmed the district court’s findings that A.H.’s retention breached Horacius’s “custody rights under the law of Canada” and that Horacius “had actually been exercising those custody rights at the time of [A.H.’s] retention.” Horacius, therefore, established the second and third elements of his prima facie case.

 

The district court found that Richard had not shown that A.H. was well-settled in the United States. Even if she had, the district court ruled that it would exercise its discretion to order A.H.’s return. See Fernandez, 909 F.3d at 363. Because the latter ruling was dispositive, the Court did not address Richard’s well-settled affirmative defense. See Fla. Wildlife Fed’n Inc. v. United States Army Corps of Eng’rs, 859 F.3d 1306, 1316 (“We may affirm the district court’s ruling on any basis the record supports.”). Richard’s briefing on appeal does not challenge the district court’s alternative conclusion that it would exercise its discretion and order A.H. returned to Canada notwithstanding Richard’s well-settled defense. Thus, it concluded that any challenge to the district court’s ruling on that front was forfeited.

 

Castang v Kim, Not Reported in Fed. Rptr., 2024 WL 3949445 (11th Cir., 2024)[France][Petition granted][Attorneys fees and Costs][Dire financial condition not clearly inappropriate]

 

In Castang v Kim, Not Reported in Fed. Rptr., 2024 WL 3949445 (11^th Cir., 2024) the Eleventh Circuit held that the district court did not abuse its discretion in awarding attorneys fees.

Igor Castang and Katherine Kim had a child who was born in France in 2018. In 2021, a French court directed the two to share custody of the child. Their relationship deteriorated, and without telling Castang, Kim took the child to Atlanta, Georgia, in 2022. Castang filed an ICARA petition, which the district court granted. It ordered the father to be allowed to take physical custody of the child to return the child to France. Kim appealed and the Eleventh Circuit affirmed the district court. Castang then moved the district court for an award of attorney’s fees and costs under Section 9007(b)(3), which provides that after ordering the return of a child, the district court “shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Kim opposed that motion. The district court granted Castang’s motion but reduced the fee award based on Kim’s financial hardship. It first determined that the proper award based on the hours Castang’s attorneys worked, their hourly rates, and other costs incurred was $144,513. It then considered Kim’s financial circumstances—that she represented that she had no income or assets, could not afford to travel to visit her child in France, was $5,613.87 in debt, her bank account had a monthly deposit of $430.77, and withdrawals of $392, and that she had no annual income. Given her situation, the district court determined that an award of $144,513 was “clearly inappropriate” because it would cause her a significant financial hardship that would impact her ability to care for her child, so it reduced the award by one-third to $96,342. It reasoned that although she was in a dire financial position, she likely had some income to sustain her living in the United States, and she presented no evidence that she could not work in the United States to earn income and pay an award.

 

The Court explained that it reviews an award of attorney’s fees for abuse of discretion, and questions of law in reaching a fee award de novo.  Kim’s first argument that ICARA does not allow for the reduction of a fee award was rejected as no authority supported Kim’s argument. District courts have the authority to reduce a requested award of attorney’s fees and costs.

 

Kim’s second argument that the district court lacked sufficient evidence to support its pre-reduction award of $144,513 was rejected. She argued that the district court impermissibly relied on affidavits that opined on other attorneys’ hours worked and had no other evidence to consider for those hours. In calculating an award of fees and costs, district courts may consider billing records and affidavits, and they may rely on their knowledge and expertise in determining a fee award. See Barnes, 168 F.3d at 428. And when, as here, a party opposing a fee award makes a specific objection, the district court’s order “should consist of more than conclusory statements.” But “[u]ltimately, the computation of a fee award is necessarily an exercise of judgment, because ‘[t]here is no precise rule or formula for making these determinations.’ ” It could not be said that the district court abused its discretion in determining that this was a reasonable amount. And even if it did, given the district court’s reduction of the award to significantly less than the $122,199.50 for which the district court considered affidavits, any error was harmless. See Skanska USA Civil Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1309 (11th Cir. 2023) (“An error is harmless unless ‘it affects the substantial rights of the parties’ such that the reviewing court cannot confidently say that ‘the judgment was not substantially swayed by the error.’ ”).

 

Finally, it rejected Kim’s argument that she presented evidence that any award would impose a financial hardship on her that would prevent her from caring for her child, and thus any award was “clearly inappropriate.” She pointed to evidence that she had no income or assets, could not afford to travel to visit her child in France, was $5,613.87 in debt, had a monthly deposit of $430.77 and withdrawals of $392, and had no annual income. The Court noted that it has  recognized that a relevant consideration for whether an award is clearly inappropriate is whether “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Rath, 898 F.3d at 1311. Although it had not considered what qualifies as a “financial hardship,” district courts in the circuit had. They consider the respondent’s financial status, current and future employment, and any special circumstances that could prevent the respondent from paying an award. And when district courts find that a requested fee award would impose a financial hardship, they often reduce the fee award rather than declining to impose an award altogether. The district court found that an award of $144,513 would impose a financial hardship on Kim that would impair her ability to care for her child, so it reduced the award by one-third. In coming to that conclusion, it considered the evidence Kim now relied on about her financial status. It also reasoned that she likely had some source of income to sustain herself and the absence of any evidence that she could not work in the United States.  The Court acknowledged that Kim presented evidence of a dire financial position, but could not say the district court abused its discretion in concluding that the reduced award was not “clearly inappropriate.” Absent some evidence of an inability to earn income, the district court was within its discretion to find that Kim had the ability to work to support herself and pay the costs and fees.

 

Lomanto v. Agbelusi, 2024 WL 3342415 (2d Cir., 2024) [Spain][Petition denied][now settled defense][age & Maturity defense]

In Lomanto v. Agbelusi, 2024 WL 3342415 (2d Cir., 2024) the Second Circuit affirmed an order of the district court denying Lomanto’s petition for repatriation to Spain of his two minor children, R.A.L. and S.M.L. The parties were both non-American citizens who met in Spain in 2006. They resided there together and had two children. On June 26, 2021, Agbelusi left Spain with R.A.L. and S.M.L., who were then twelve and four, to visit her mother in New York for the summer. Lomanto had provided his written permission for the children to travel with their mother to the United States. On August 24, 2021, Agbelusi notified Lomanto that she planned to stay in New York permanently with the children. Lomanto objected and initiated legal proceedings in Spain, in which Agbelusi participated, to try to obtain the return of the children. In September 2021, the Spanish trial court issued an order concluding that the habitual residence of the children was Spain, that Lomanto did not consent to the children’s staying in New York, and that Agbelusi should return them to Spain. Agbelusi filed an appeal, which was unsuccessful. On August 26, 2022, Lomanto filed the current action in federal district court in New York.

Although there was no dispute that a prima facie case of wrongful retention was established under the Hague Convention, the district court held that Agbelusi met her burden to establish multiple affirmative defenses to return of the children, which Lomanto challenged on appeal. In addition, Lomanto maintained that even if these defenses were established, the district court nevertheless erred by (1) declining to exercise its discretion to repatriate the children notwithstanding Agbelusi’s defenses, (2) failing to accord comity to the Spanish court orders, and (3) proceeding with the first day of trial without a Spanish-language interpreter.

The Second Circuit reviewed the district court’s interpretation of the Convention and its application to the facts de novo. It reviewed its factual determinations only for clear error. The clear error standard is deferential, and “[w]e must accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).

The Court noted that Article 12 of the Hague Convention requires a court to order the repatriation of a child if Hague Convention proceedings are initiated within one year of the child’s wrongful removal or retention unless an exception applies. Hague Convention, art. 12. If the proceedings are commenced after the one-year period, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this exception “by a preponderance of the evidence.” 22 U.S.C. § 9003(e)(2)(B). The district court ruled that Lomanto’s petition was filed more than a year after the wrongful retention of the two children and that the children were “now settled” in their new environment. The Second Circuit saw no reason to disturb the district court’s finding that wrongful retention began on August 24, 2021, the date that Lomanto learned that the children would be staying in New York, thus making his petition filed on August 26, 2022, beyond the one-year deadline. This finding was not clearly erroneous. The district court based its finding on Lomanto’s communication with R.A.L. on August 24, 2021, his communication with Agbelusi later that day, and the police reports that Lomanto filed the next day on August 25, 2021, where he reported that the children were missing as of August 24, 2021, and that he “want[ed] to put on record that he ha[d] not given his consent for his children to stay” in the United States. These events made clear that Agbelusi advised Lomanto on August 24, 2021, that she would retain the children in New York over his objection. In a closely analogous case, we affirmed a district court’s determination that the date the child’s mother advised the father that she would not be returning with the children” to their country of habitual residence was the date of wrongful retention. The Second Circuit held that the district court did not err in declining to adopt one of the later dates Lomanto proposed as the beginning of the children’s wrongful retention—including the date Lomanto asked Agbelusi via text message to return the children or the date the parties originally had agreed that the children would return. wrongful “retention” occurs on a fixed date—it is not a continuing act. Marks, 876 F.3d at 422. And on this record, for the reasons noted above, the district court properly found that Agbelusi’s wrongful retention began on August 24, 2021. Thus, the district court correctly concluded that Lomanto’s filing of Hague Convention proceedings on August 26, 2022, occurred after the one-year period that began on August 24, 2021.

The Second Circuit identified no error in the district court’s conclusion that R.A.L. and S.M.L. were “now settled” in New York. Because the now-settled analysis is a mixed question of fact and law, the district court’s factual findings as to each of the relevant factors are reviewed for clear error, while its application of the Convention based on those factual findings is reviewed de novo. See Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001). The district court carefully considered the relevant factors, under Lozano v. Alvarez, including the age of the children, the stability of their residence in the new environment, whether they attend school consistently, whether they participate regularly in community or extracurricular activities, the respondent’s employment and financial stability, whether the children have friends and relatives in the new environment, and the immigration status of the children and the respondent. 697 F.3d 41, 57 (2d Cir. 2012). Upon reviewing the record as a whole, the Second Circuit agreed that R.A.L. and S.M.L. are now settled in the United States. The record evidence, including the children’s regular school attendance, involvement in their church community, and strong relationships with friends and relatives in the area, all supported the conclusion that they were now settled. And, although “a shelter may not be an ideal environment,” the district court found “in this case” that the shelter where the children live with their mother “is a stable environment that provides [the family] with their own apartment and also provides community and resources,” such as summer camp and an afterschool program. Even if their unresolved immigration status counseled against a conclusion that they were now settled, in the overall balance, the Second Circuit concluded that the factors as a whole militate toward a now-settled finding, and thus, the district court correctly applied the exception. See Lozano, 697 F.3d at 57–58 (requiring courts to “balance many factors” and declining to give controlling weight to a child’s lack of lawful immigration status).

The Second Circuit pointed out that Article 13 of the Hague Convention “permits a court to refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Blondin, 238 F.3d at 166. Under this provision, a court may refuse repatriation solely based on a considered objection to returning by a sufficiently mature child. Whether a child is “old enough and mature enough” for his “views to be considered” is a question of fact, as is the determination that a child actually objects to returning to his country of habitual residence. The Second Circuit identified no error in the district court’s conclusion that the older child, R.A.L., was of sufficient age and maturity to “take account of his views,” that his objection was a result of his own “independent thinking,” and that his articulation of reasons for not wanting to return to Spain was “rational, logical, and clear.” The court made its findings about R.A.L.’s objection based on the expert evaluation of a licensed clinical psychologist and the court’s own in camera interview with the children. Insofar as Lomanto characterized R.A.L.’s views as expressing only a “preference” for remaining in New York, rather than an “objection” to returning to Spain, this was a factual determination on which the court defers to the district court, which engaged directly with the child, absent clear error. In light of R.A.L.’s professed concern that, if he were returned to Spain, his father would not permit him to see his mother—a concern that he reiterated even after the district court told him that his mother could seek custody or visitation in Spain—the court identified no such error or abuse of discretion.

The court rejected Lomanto’s argument that even if the district court found that the children were settled in the United States and that R.A.L. objected to returning to Spain, the district court nevertheless abused its discretion in not ordering the children to return to Spain given Agbelusi’s “premeditated abduction” of the children, her “purposeful[ ] estrang[ement] [of the children] from their father, with whom they had a close and loving relationship,” and her defiance of orders from the Spanish courts. The court stated that while a district court may exercise its discretion to order the return of children to further the aims of the Convention even in cases where affirmative defenses are established, see Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999), here, the district court declined to do so, explaining that, in addition to deterrence of wrongful removal or retention, the Convention has “an interest in the welfare of the children and their interests in remaining settled.. Thus, the district court denied repatriation based on the children’s interests in remaining settled together in their new close-knit community in New York, and based on R.A.L.’s objection to returning to Spain. The district court’s refusal to order return was not an abuse of discretion.

The Second Circuit rejected Lomanto’s argument that the district court erred in failing to accord comity to the Spanish court orders that found that Agbelusi had wrongfully retained the children and ordered that she return them to Spain. The district court correctly determined that the Spanish courts had not purported to rule on Agbelusi’s affirmative defenses but had determined only that the children’s retention was wrongful, and that the district court therefore had jurisdiction to adjudicate Agbelusi’s defenses.

Tereshchenko v Karimi, 2024 WL 3342759 (S.D. New York, 2024) [Ukraine][Petition granted][Necessary Costs]

In Tereshchenko v Karimi, 2024 WL 3342759 (S.D. New York, 2024) the district court granted the motion of the petitioner for attorneys’ fees and costs pursuant to Article 26 of the Hague Convention (“Article 26”) and 22 U.S.C. § 9007(b)(3).

Petitioner filed this action on March 8, 2023, On January 8, 2024, following an evidentiary hearing, this Court granted Tereshchenko’s petition. Tereshchenko v. Karimi, No. 23cv2006 (DLC), 2024 WL 80427 (S.D.N.Y. Jan. 8, 2024). On March 24, Tereshchenko moved for reimbursement of his attorneys’ fees and the costs paid by his attorneys on his behalf. Tereshchenko sought reimbursement of $406,486.92. On May 16, 2024, the Second Circuit Court of Appeals affirmed the Court’s January 8 Order granting Tereshchenko’s petition. Tereshchenko v. Karimi, 102 F.4th 111, 2024 WL 2202151 (2d Cir. May 16, 2024). The Court of Appeals required, however, that the Court’s Order be tailored in recognition of the Ukrainian courts’ authority over an ultimate custody determination.

The court observed that a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). Courts apply the “lodestar method” to determine the appropriate value of attorneys’ fees and costs. Fresno Cnty. Emp. Ret. Assoc. v. Isaacson/Weaver Family Trust, 925 F.3d 63, 67 (2d Cir. 2019). The lodestar figure is calculated “by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” H.C. v. New York City Dep’t. of Educ., 71 F.4th 120, 126 (2d Cir. 2023).

 The petitioner sought an award of “reasonable hourly rates” for his attorneys. The “reasonable hourly rate” is “the rate a paying client would be willing to pay after considering all pertinent factors, including the Johnson factors.” The Johnson factors, derived from Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), are: “[t]he time and labor required”; “[t]he novelty and difficulty of the questions”; “[t]he skill requisite to perform the legal service properly”; “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee”; “[w]hether the fee is fixed or contingent”; “[t]ime limits imposed by the client or the circumstances”; “[t]he amount involved and the results obtained”; the experience, reputation, and skill of the attorneys; whether the case is undesirable and may not be “pleasantly received by the community” or the attorney’s contemporaries; “[t]he nature and length of the professional relationship with the client”; and “[a]wards in similar cases.” In its determination of the “reasonable hourly rate”, a court may consider the market rate for representation.  A court may look to recent cases in its district to “determine the prevailing market rate” for attorneys in the New York area who are experienced in the relevant law.  

  The petitioner proposed the following rates for the compensation of his attorneys: $650 for Richard Min and Daniel Lipschutz, $550 for Michael Banuchis, and $400 for Samantha Jacobson. These rates exceed the prevailing rates for Hague Convention cases in the Southern District of New York. The court noted that Courts in the Southern District of New York have not awarded more than $425 per hour to attorneys in Hague Convention cases. In 2022, one court found that a rate of $425 per hour was appropriate for Mr. Min’s representation in a Hague Convention Case. Webster-Colquhoun v. Colquhoun, No. 21-cv-7101 (KWK), 2022 WL 2866470, at *5 (S.D.N.Y. July 21, 2022). In the same case, the court found that $325 per hour was appropriate for Mr. Banuchis’s representation and $200 per hour was appropriate for Ms. Jacobson’s representation. In 2021, another court found a rate of $425 per hour was appropriate for an attorney who had been practicing for over 40 years and had handled hundreds of international child abduction and Hague Convention cases. Grano v. Martin, No. 19-cv-6970 (CS), 2021 WL 3500164, at *3 (S.D.N.Y. Aug. 9, 2021). The court also found that a rate of $400 per hour was appropriate for an attorney who had been practicing for 40 years but had very limited experience with Hague Convention cases. Id. Finally, in 2020, a third court found that a rate of $425 per hour was appropriate for an attorney who had 30 years of experience litigating Hague Convention cases. Nissim v. Kirsh, No. 1:18-cv-11520 (ALC), 2020 WL 3496988, at *3 (S.D.N.Y. June 29, 2020). See also Duran-Peralta v. Luna, No. 16cv7939 (JSR), 2018 WL 1801297 at *2 (S.D.N.Y. Apr. 2, 2018) (collecting cases).

The Court found that a rate of $425 per hour for Mr. Min was reasonable. A rate of $400 per hour was reasonable for Mr. Lipschutz. Awards of $325 per hour for Mr. Banuchis and $200 per hour for Ms. Jacobson were appropriate. Consideration of the Johnson factors does not alter these rates. The petitioner also sought an award for the few hours billed by another associate and two paralegals in this case. A billing rate of $200 per hour was appropriate for the second associate. Furthermore, a rate of $129 per hour was reasonable for a paralegal. See Grano, 2021 WL 3500164, at *4 ($129); Sanguineti v. Boqvist, No. 15cv3159 (PKC), 2016 WL 1466552, at *4 (S.D.N.Y. Apr. 14, 2016) ($129). The rate of $129 per hour was appropriate for both paralegals in this case.

The Court explained that in determining a reasonable number of hours spent on a case, a court may exclude “documented hours that are excessive, redundant, or otherwise unnecessary.” Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). A court may “decrease the total award from the claimed amount because of vagueness, inconsistencies, and other deficiencies in the billing records.” The court may also “apply an across-the-board reduction to account for time spent on clerical tasks.” Their total proposed number of hours, 658.53, spread across three partners, two associates, and two paralegals, was reasonable for the amount of labor spent litigating this case.

 

The respondent argued that a substantial award to the petitioner was inappropriate. Section 9007 shifts the burden onto a losing respondent in a return action to show why an award of necessary expenses would be clearly inappropriate. Ozaltin, 708 F.3d at 375 (citing § 9007(b)(3)). When determining whether expenses are “clearly inappropriate,” a court may consider “the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016). A respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.”

The Court found that the amount awarded to the petitioner for his attorneys’ fees and costs was not clearly inappropriate. In this case, the respondent, not the petitioner, bears responsibility for the length of this case and the resulting hours spent by Tereshchenko’s legal team. Karimi evaded service for over two months, refused to abide by the decision of the District Court of the City of Odesa in Ukraine after having agreed to accept whatever it would decide, and presented new defenses on the eve of trial. No evidence was presented to show that the respondent was unable to pay the award.

In her opposition, the respondent argued that the award was “clearly inappropriate” because she acted in good faith when removing the children from Ukraine. Karimi relied on Ozaltin for the proposition that her good faith decision should be factored into a consideration of whether fees and costs are appropriate. But her reliance on this law was misplaced. The court in Ozaltin found that a mother’s decision to remove her children from their country of habitual residence was in good faith because custody decisions made by that country’s courts suggested the mother could move to the United States with the children. That has never been the case here.

 

 

Galaviz v Reyes, --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024)[Mexico] [Petition granted] [Fundamental Freedoms Article 20 defense and Grave risk of harm not established] [This Opinion was substituted for the October 11, 2023 opinion]

 

In Galaviz v Reyes,  --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024) Abigail Galaviz and Luis Reyes had a son and daughter while living in Mexico. The young children remained in that country with Galaviz when their parents separated. In July 2021, Reyes took the children to El Paso, Texas, and refused to return them. Galaviz filed an action in federal district court requesting the return of the children to Mexico under the Hague Convention. Reyes raised affirmative defenses under Articles 20 and 13(b), asserting that returning the children would violate a fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court ruled in favor of Reyes and denied Galaviz’s request for the return of the children. The Fifth Circuit reversed and remanded.

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. In July 2021, Reyes took the children to El Paso for an appointment with a physician and refused to return them to their mother or Mexico. In October 2021, Galaviz submitted an Application for the Return of her Children to the United States Central Authority under the Hague Convention. In November, Galaviz filed a Verified Petition for the Return of the Children in the Western District of Texas. At the time of the proceedings in district court, there were no formal custody or possession court orders in place governing the parents’ custodial rights. The son was five years old, and the daughter was four years old. The district court held a trial and 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. Reyes raised 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 denied 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 the exceptions upon which he relied by clear and convincing evidence and denied Galaviz’s request for the return of the children to Mexico.

The Fifth Circuit noted 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.’ ” A parent resisting repatriation of a child based on Article 20 has the burden of establishing by clear and convincing evidence that this exception applies. Article 20 is to be “restrictively interpreted and applied.”  

The Court first determined the applicable standard of review. In recent years, the Supreme Court has held in a Hague Convention case that “[m]ixed questions [of law and fact] are not all alike.” The Court has explained that “[i]n short, the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.” In Monasky v. Taglieri the Court held that the location of a child’s “habitual residence” within the meaning of the Hague Convention “depends on the totality of the circumstances specific to the case,” and the district court’s determination of “habitual residence” “is subject to deferential appellate review for clear error.”   It appeared that whether repatriation of a child should be denied because “it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’ ” presents a question that is quite different from the location of a child’s “habitual residence.”

The court explained that to be able to refuse to return a child based on Article 20, it will be necessary to show that the fundamental principles of the requested State concerning the subject-matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible, with these principles. An inquiry of that nature would be a legal one, once the underlying facts were determined. It concluded that determining whether “the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” would not permit the return of a child entails primarily legal work. Accordingly, it reviews the district court’s findings of fact regarding Reyes’ invocation of Article 20 for clear error, bearing in mind that the heightened clear-and-convincing-evidence burden applies, and it reviews de novo whether the circumstances permit a United States court to decline to return a child under Article 20.

 

The Court held that 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.” It noted that 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 did not comply with this requirement, the children did not attend school. However, the district court did not find that the children would be entirely deprived of an education if returned to Mexico. The court acknowledged that “the law in Mexico may provide for special education.” 

These findings did not establish an Article 20 exception. The district court focused primarily on Galaviz’s actions or inactions regarding the children’s education, not on laws or policies of the United States that would prohibit the return of the children. By focusing on Galaviz’s actions or inactions, the district court essentially made an impermissible custody decision. It held that Reyes did not present clear and convincing evidence demonstrating that, as a matter of law, the return of the children would utterly shock the conscience or offend all notions of due process.

The Fifth Circuit held that an Article 13(b) defense determination is a mixed question of law and fact. Because it concluded that the district court’s finding that Reyes established an exception under Article 13(b) cannot stand under either de novo or clear error review, it did not resolve which standard of review is required. 

The Court explained that under Article 13(b), a court in its discretion need not order a child returned if there is a grave risk that return would expose the child to physical harm or otherwise place the child in an intolerable situation.” “The person opposing the child’s return must show that the risk to the child is grave, not merely serious.” “The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” “The alleged harm ‘must be a great deal more than minimal’ and ‘greater than would normally be expected on taking a child away from one parent and passing him to another.’ ” A district court’s factual finding is clearly erroneous “when ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ”  The district court’s conclusion that evidence of neglect established a grave risk of harm under the clear and convincing standard was clearly erroneous. Article 13(b) focuses on the risk of harm posed by the child’s repatriation. is not an invitation to determine whether custody with one parent would be in the best interest of the child. The question is whether there is clear and convincing evidence that return would expose the child to a grave risk of harm, not whether a parent is a worthy custodian. The evidence Reyes presented that Galaviz neglected the children’s medical care was not sufficient to support a finding under the clear-and-convincing burden of proof that returning the children to Mexico would present a grave risk of physical harm. Reyes presented evidence that the children had “rotten molars” when in Galaviz’s care and when brought to the United States. He also presented evidence that, when brought to the United States, the children were behind on their vaccinations, their daughter had hearing loss requiring hearing aids, and their son had an astigmatism requiring eyeglasses. On this record, it was clearly erroneous for the district court to conclude that there was clear and convincing evidence that a grave risk of physical harm arose from the medical care the children would obtain if repatriated to Mexico.  Similarly, it was clearly erroneous to base a grave risk finding on Reyes’s evidence with respect to the allegations of unsuitable childcare, poor hygiene, and lack of educational opportunities. That evidence did not clearly and convincingly demonstrate a grave risk of physical or psychological harm. Reyes presented no evidence that these hygiene issues or the older daughters’ supervision of the children would expose the children to a grave risk or intolerable situation. If a child’s standard of living provided clear and convincing evidence of a grave risk of harm, “parents in more developed countries would have unchecked power to abduct children from countries with a lower standard of living.”

The Fifth Circuit found that the district court also clearly erred in concluding that Galaviz was the cause of the children’s regression. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of proving clear and convincing evidence. The behavioral regressions by the children could be attributed to the fact they are very young, have special needs, and were separated from their father—an “equally plausible explanation[ ]” that undermined the district court’s finding. The evidence was not clear and convincing that Galaviz was the cause of regression. 

Finally, the district court also clearly erred by concluding Reyes presented clear and convincing evidence that the children’s return to Mexico would pose a grave risk of harm by impeding their development. There was no evidence before the district court that programs, classes, or educational opportunities for autistic children are unavailable in Mexico. Nor was there evidence that returning to Mexico would irreversibly impede the children’s development.  The district court found that Galaviz attempted to enroll her children in a special needs school in Mexico, which required Galaviz to be present during the children’s classes. The district court concluded that Galaviz’s inability to be present at the school effectively denied the children their right to an education.

 The district court clearly erred in concluding the evidence related to physical abuse clearly and convincingly established a grave risk of harm. “Sporadic 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 the clear and convincing burden. Cases concluding that the grave risk exception has been met often involve the use of physical force that is repetitive or severe. The district court in the present case 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 the son reacted to protect his sister 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. None of this evidence rose to the level of clear and convincing evidence of a grave risk of physical or psychological harm if the children are returned to Mexico. There were also 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, caused swelling, bruises, black eyes, a busted lip, and a broken nose. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of providing clear and convincing evidence.

Galaviz’s former friend testified that she witnessed Galaviz hit the children “[n]ot in their face but in their ... thigh.” She stated that Galaviz hit her son with a foam slipper to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult daughter when the latter was confronted about spanking her young brother. She also testified that Galaviz would hit the children because they would cry. This evidence represents the type of “[s]poradic or isolated incidents of physical discipline” that courts have rejected as establishing an Article 13(b) exception. Without more, the district court clearly erred in concluding this evidence established a grave risk of harm by clear and convincing evidence. 

Lastly, the district court clearly erred in determining that there was clear and convincing evidence of sexual abuse. The district court characterized the evidence as indicating merely a “strong suggestion of sexual abuse.” This “strong suggestion” was based on a finding that Reyes received anonymous text messages stating that the children had been sexually abused with Galaviz’s knowledge, a police report filed by Reyes, and a police report narrative in which a physician expressed their belief that the son could have been sexually abused. The district court, however, did not admit the text messages or the police reports for the truth of the matter asserted therein, and their content was not presented in an otherwise admissible form. The only evidence offered to establish the alleged sexual assault was Reyes’s own testimony. This evidence did not meet the clear and convincing evidence burden. Simply put, the only evidence of sexual abuse is the father’s testimony that he suspected sexual abuse. Accordingly, the district court clearly erred in concluding this was clear and convincing evidence of sexual abuse.

 

 

Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) [Germany][Petition granted] [Habitual residence] [Agreement for future Habitual residence ]

 Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) [Germany][Petition granted] [Habitual residence]

 

In Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) Asli Baz, a citizen of Germany, filed suit seeking to compel Anthony Patterson, a citizen of the United States, to return their six-year-old son, A.P., from Illinois to Germany. The district court found that A.P.’s habitual residence at the time he was retained was in Germany, where he had lived with Baz for over a year, and that the retention in Illinois violated Baz’s rights of custody under German law. It thus granted Baz’s petition and ordered the child’s return. The Seventh Circuit affirmed. It concluded that the district court properly exercised the jurisdiction granted to it by ICARA and that the record supported its decision.

 

In 2013, Baz was living in the United Kingdom and Patterson resided in Florida. Two years later, Baz moved to Chicago on a student visa to pursue a doctoral degree in clinical psychology. Patterson accompanied her, they moved into a house together, and their son, A.P., was born in May 2017. Although Baz and Patterson ended their relationship shortly after A.P.’s birth, they continued to occupy the same house, on different floors, pursuant to an order from the Circuit Court of Cook County, Illinois (“Illinois state court”). On August 5, 2019, Baz sought and received the court’s permission to relocate with A.P. to Wisconsin for her pre-doctoral internship. In September 2020, Baz again requested permission to relocate with A.P., this time to Minnesota so that she could complete a mandatory pre-doctoral fellowship in forensic psychology. The Illinois state court granted this request, and Baz completed her fellowship in March 2021.

In May 2022, Baz sought permission from the Illinois state court to relocate with A.P. to Germany. The Illinois state court held a trial and, on May 9, 2022, granted her petition. The court then instructed Baz and Patterson to draft an agreement detailing how they would divide their parenting time and decision-making responsibilities after Baz relocated. The Illinois state court memorialized the parental agreement on May 23, 2022, in a document entitled “Allocation Judgment: Allocation of Parenting Responsibilities and Parenting Plan” (“Illinois Allocation Judgment”). The Illinois Allocation Judgment was signed by Baz, Patterson, and the presiding judge, but not by the guardian ad litem. It provided that A.P. would move with Baz to Germany, where he would attend school, with each parent paying half of his tuition. The agreement also stated that A.P. would continue with his primary health-care provider in the United States, but that Baz would be responsible for securing medical, health, and hospitalization insurance for him in Germany, at least through the first month following his eighteenth birthday. The Illinois Allocation Judgment provided that Patterson would have parenting time during the summer and other school breaks. He also was allowed to have daily video calls with A.P. and to visit him in Germany. The parents agreed that each of them would maintain possession of A.P.’s U.S. passport during his or her respective parenting time, and that they would exchange the passport whenever A.P. was dropped off or picked up. The parties were allowed to modify this parenting schedule by written agreement. The Illinois Allocation Judgment also purported to determine A.P.’s habitual residence for purposes of the Convention. The habitual-residence provision of the Illinois Allocation Judgment states that “[t]he ‘Habitual Residence’ of the minor child is the United States of America, specifically the County of Cook, State of Illinois, United States of America.” Another provision provides that neither Baz nor Patterson had “consented, or acquiesced to the permanent removal of the child to or retention in any country other than the United States of America.” The agreement also includes a jurisdictional provision, which states that “[s]o long as at least one parent resides in the State of Illinois, the Circuit Court of the State of Illinois shall retain exclusive and continuing jurisdiction over this cause to enforce or modify the terms and provisions of this Allocation Judgment.” On May 13, 2022, with the permission of the Illinois state court, she and A.P. relocated to Germany. A.P. at the time was about five years old. Shortly after they arrived, Baz acquired a German passport for A.P., who, had dual U.S. and German citizenship. Baz testified that she applied for the passport because under German law A.P. could not attend school or enroll in the national health-care system without identification. After Baz and A.P. relocated to Germany, A.P. enrolled in school as planned.

Baz and Patterson subsequently negotiated an agreement and memorialized it in a “German Consent Order” dated May 31, 2023. It reaffirmed that joint parental care and custody of A.P. would remain in place, and that the Illinois Allocation Judgment would continue to apply to the extent that additional specifications had not been adopted. The parents further agreed that A.P. was living in Germany with Baz, but that Patterson was authorized and required to have parenting time or contact with A.P. from June 19, 2023, through July 31, 2023, pursuant to the Illinois Allocation Judgment. Once A.P. was back in Germany, Patterson would be allowed to see him at discrete times in August 2023 and to attend the child’s first-day-of-school ceremony on August 8, 2023. Patterson would keep A.P.’s U.S. passport going forward, and Baz would keep his German passport. Through the German Consent Order, Baz and Patterson also agreed that they would not continue to pursue custody-related matters pertaining to A.P. in either the United States or Germany. Patterson “commit[ted] himself to submit the [German Consent Order] to the [Illinois state] court in Chicago by” June 2, 2023. He also agreed “to request that the American court suspend the proceedings in view of the fact that the German attorneys want to come up with an out-of-court solution.” Patterson notified the Illinois state court of the agreement on June 1, 2023, but he did not furnish the court a complete copy of the German Consent Order. Immediately after informing the Illinois state court about the German Consent Order, Patterson told the guardian ad litem that he had agreed to that order under duress.

When Baz learned that Patterson was acting contrary to the German Consent Order, she expected that he would also refuse to return A.P. to Germany by July 31, 2023, when his summer parenting time was up. Motivated by this concern, Baz did not make plans for A.P. to return to the United States on June 19, 2023. This conflicted with the German Consent Order. On June 27, 2023, the Illinois state court found that Baz had not turned A.P. over to Patterson on June 1, 2023, as the Illinois Allocation Judgment had required. It ordered Baz immediately to turn over A.P. to Patterson, and authorized Patterson to travel to Germany to retrieve the child. On July 3, 2023, Patterson arrived in Germany, went to A.P.’s school, and removed the child from his kindergarten class to bring him to the United States. Sometime around July 7, 2023, Patterson filed an “Emergency Ex Parte Petition for Temporary Restraining Order and Preliminary Injunction” with the Illinois state court. He requested that Baz be ordered to return A.P. to Chicago (though A.P. was in Chicago by that time) and sought sole custody. On July 10, 2023, Patterson secured a favorable ruling on his motion. The order stated that, until further order from the court, Baz was “restrained from having physical contact with” A.P. and that Patterson was “granted exclusive parenting time and decision making for the minor child[.]” It further ordered Baz to “deposit any and all foreign identification, passport(s) (including, but not limited to any German passport), or travel document(s)” for A.P. with the court by July 25, 2023.

 On July 18, 2023, about a week after the temporary restraining order was entered, Baz filed a Hague Convention Application for Return with the Central Authorities for the United States and Germany, seeking A.P.’s return to Germany. See 22 U.S.C. § 9003. On August 1, 2023, Baz filed her Verified Petition for Return of Child to Germany in the Northern District of Illinois. The district court held a two-day evidentiary hearing. On December 13, 2023, the court granted Baz’s petition. It issued an order the following day requiring that A.P. be returned to Germany.

The Ninth Circuit held that Patterson could not rely on the Illinois Allocation Judgment to oust federal jurisdiction over a case brought under the Convention. Congress, enacted ICARA so that a parent of a wrongfully retained or removed child could petition courts in the United States for the return of the child to the child’s habitual residence. Faced with such a petition, the court’s job is to consult the governing law and decide where the child habitually resides. If that residence is not in the forum state, then the court dismisses as instructed by ICARA and the Convention so that the proper court can decide the delicate issues of residence and custody that these cases present. Those are preliminary procedural decisions, not jurisdictional rulings. As applied here, there was no subject-matter jurisdiction bar preventing Baz from filing her petition for a return order in the federal court, notwithstanding the language in the Illinois Allocation Judgment purporting to give “exclusive and continuing jurisdiction” over the case to the Circuit Court of the State of Illinois. Upon Patterson’s motion, the federal court simply had to decide what weight to give that choice-of-forum (or law) provision under the Convention.

 The Ninth Circuit held that Baz had shown by a preponderance of the evidence that A.P. was wrongfully retained away from his habitual residence. See 22 U.S.C. § 9003(e)(1).

A. Time of Retention: The district court identified July 7, 2023, as the date of A.P.’s retention.  The record amply supported the district court’s finding.

B. Habitual Residence Prior to Retention: The Ninth Circuit pointed out that determining where a child was at home at the time of retention is a “fact-driven inquiry,” “not a categorical one.” The inquiry “must be ‘sensitive to the unique circumstances of the case and informed by common sense.’. Among the factors to consider are “facts indicating acclimatization,” which “will be highly relevant,” and “the intentions and circumstances of caregiving parents.” But “[n]o single fact ... is dispositive across all cases,” and so courts must consider “the totality of the circumstances specific to the case” to determine a child’s habitual residence. Monasky announced the standard that an appellate court must apply when reviewing a district court’s habitual-residence determination. The Court concluded that the inquiry presents a mixed question of law and fact because a district court must first “correctly identif[y] the governing totality-of-the-circumstances standard.”  Once a district court has identified the appropriate standard, “what remains for the court to do in applying that standard ... is to answer a factual question: Was the child at home in the particular country at issue?” Thus, so long as a district court applies the correct legal standard, its habitual-residence determination “should be judged on appeal by a clear-error review standard deferential to the factfinding court.”

 

The Court noted that  the district court applied the totality-of-the-circumstances standard to determine where A.P. was at home on July 7, 2023. The Court rejected Pattersons argument, that the totality-of-the-circumstances standard did not apply. In his view, the habitual-residence clause of the Illinois Allocation Judgment, which stated that A.P.’s habitual residence for purposes of the Convention is Cook County, should have been conclusive upon the court. The Court found that a parental stipulation as to their child’s future habitual residence is simply a factor (albeit a powerful one) for the totality-of-the-circumstances test. Patterson’s theory suffers from two fatal flaws. First, it rests on the fallacy that Baz’s and Patterson’s stipulation can bind third parties (such as A.P.’s guardian ad litem, who was not a party to the Illinois Allocation Judgment) or the district court. Patterson cited no Convention case in which a court concluded that either it or a non-party was bound by a parental stipulation about the future habitual residence of a child, and neither are we aware of such a case. To the contrary, the courts that have confronted arguments of the kind that Patterson presses have found them unpersuasive. See, e.g., Karkkainen v. Kovalchuk, 445 F.3d 280, 292–93 (3d Cir. 2006) (concluding that a habitual-residence stipulation was no longer binding because the child’s circumstances had changed since the agreement was made).

 

The second flaw in Patterson’s theory was that it assumes that parental intent alone can dictate a child’s habitual residence. That assumption is mistaken. The Supreme Court adopted that view in Monasky, where it concluded that “[w]hat makes a child’s residence habitual is ... some degree of integration by the child in a social and family environment.” 589 U.S. at 77, 140 S.Ct. 719 (quotation omitted). Although Baz and Patterson attempted to tie the court’s hands in the Illinois Allocation Judgment with respect to the future habitual residence of their child, the district court correctly determined that the stipulation can be only one factor among others to consider when applying the totality-of-the-circumstances test. A parental stipulation as to their child’s future habitual residence will often be powerful evidence of “the intentions and circumstances of caregiving parents,” which are “relevant considerations.” Monasky, 589 U.S. at 78, 140 S.Ct. 719. In the end, a child’s habitual residence depends not on any one fact, but on the totality of the circumstances specific to the case.

 

The Court rejected Patterson’s argument that the district court erred by considering evidence of A.P.’s acclimatization in Germany. In his telling, facts about A.P.’s time in Germany are tainted as evidence of post-abduction acclimatization, because Baz wrongfully removed A.P. to Germany and retained him there. This argument was a non-starter. Patterson agreed to Baz’s relocation to Germany with A.P. when he entered into the Illinois Allocation Judgment and again when he signed the German Consent Order. He cannot now claim that an arrangement that he authorized constitutes a wrongful removal or retention of A.P. Patterson resists that conclusion by pointing to evidence in the record that Baz procured permission to return to Germany under false pretenses, namely, by disingenuously telling the Illinois state court that she would continue to pursue lawful immigration status in the United States when she had no actual intent to do so.. On the basis of the facts the district court found, it properly considered evidence of A.P.’s acclimatization. The district court nonetheless concluded that there was more evidence showing that A.P. had acclimated to social life in Germany. There was no clear error in the district court’s weighing of the evidence. The district court’s finding that A.P. was at home in Germany on July 7, 2023, was plausible, and so we must accept its determination.

C. Wrongful Nature of Retention: The district court properly concluded that Baz had rights of custody under German law. The German Consent Order specifically states that the joint parental care and custody required by the Illinois Allocation Judgment would remain in place. Dr. Andreas Hanke, an expert in German family law and procedure, testified that this settlement gave Baz joint custody rights under German law. Patterson did not dispute Dr. Hanke’s interpretation of German law, nor did he submit evidence showing that he was authorized to retain A.P. in the United States at the time of retention. The balance of the evidence thus shows that Patterson’s refusal to abide by the parental agreements, as evidenced by his efforts to seek sole custody and his claim to have agreed to the German Consent Order under duress, breached Baz’s rights of custody under German law.

D. Exercise of Rights of Custody: The Ninth Circuit explainted that the standard for finding that a parent was exercising his custody rights is a liberal one.” A person who has valid custody rights to a child under the law of the country of the child’s habitual residence “ ‘cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.’ ” (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)). Nothing in the record suggested that Baz abandoned, or sought to abandon, A.P. Quite the opposite, the evidence shows that Baz actively sought to maintain regular contact with A.P. and that she was able to do so. That was enough to establish that she was exercising her rights of custody at the time of the retention.