Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024)[Poland][Petition denied][Grave risk of harm]

 

 

In Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024) the district court denied the Petition of Sebastien Funez Mene which sought the repatriation from the United States to Poland of the parties’ only child, a minor referred to herein as “BFS,” who is alleged to have been unlawfully removed from Poland by Respondent in early 2022.

 

The district court explained that throughout these Hague Convention proceedings, there emerged incontrovertible evidence of Petitioner’s severe, unrelenting psychological and physical abuse of Respondent, often executed in the presence of BFS. These proceedings laid bare numerous instances of Petitioner’s psychological and, to a lesser degree, physical abuse of BFS himself, as well as of other children and animals. Despite Petitioner’s repeated (and at times perjurious) disavowals of the same, evidence surfaced of Petitioner’s extensive criminal history in France and elsewhere, including convictions stemming from years of stalking and harassment of former intimate partners and their families; this criminal history betrayed Petitioner’s propensity to disobey court mandates generally and protective orders in particular. Petitioner revealed himself to be an unreformed narcissist, incapable of acknowledging, let alone appreciating, the consequences of his actions, who has audaciously pursued (mostly groundless) legal actions against Respondent in this and other courts in total disregard for his own misconduct. The Court denied the Petition, finding that repatriation of BFS to Poland would expose the child to a grave risk of harm pursuant to Article 13(b) of the Hague Convention.

 

The Court explained that the only trial testimony the Court found wholly incredible was that of Petitioner. Petitioner repeatedly, and egregiously, lied to this Court throughout these proceedings, including at trial. The Court found that the degree and consistency of Petitioner’s dishonesty with this Court constitutes grounds for the blanket discrediting of his trial testimony.

 

Petitioner Sebastien Funez Mene was born in France in or around 1973. He lived most of his life in France. In 2015, after meeting Respondent, Petitioner moved to Poland and has resided there ever since. Respondent Kaja Sokola was born in Wroclaw, Poland on May 4, 1986. At the age of thirteen, she began modeling professionally; she thereafter lived in New York City “on and off” between the ages of sixteen and twenty-three.  At twenty-three, Respondent returned to Poland to attend the University of Social Science in Wroclaw, where she received a Bachelor’s Degree in Psychology and a Master’s Degree in Clinical Psychology, completing her studies in 2014. The Respondent was a certified addiction and co-dependence psychotherapist and Gestalt psychotherapist.  Respondent had a serious heart condition, namely, an aortic aneurysm, and suffers from arrhythmia.  The parties’ son, BFS, was born in Poland in 2019; today, he was around five-and-a-half years old. BFS had general developmental delays for which he received a variety of special services. Petitioner and Respondent met in May 2015. the first time in person when Petitioner came to visit her in Warsaw, Poland in June 2015. Two days into his visit, Petitioner proposed to Respondent. Respondent happily accepted his proposal. Days later, on June 16, 2015, the pair were married in a church. Shortly after the wedding, Petitioner flew to Lyon, France, where he was then residing with his parents; though the sudden departure upset Respondent, Petitioner assured her that he “had an urgent and important case” that required him to get back to France immediately. In August 2015, Respondent flew to Lyon to rejoin Petitioner. She expressed a desire to meet his family, but Petitioner declined to introduce her to his parents, saying he “didn’t have the time.” After two hours in Lyon, Petitioner drove the couple over 1,700 kilometers back to Warsaw, Poland.  Petitioner thereafter moved into Respondent’s Warsaw apartment, and the parties resided together for the majority of their relationship, with the exclusion of a brief period of separation in 2020-2021. The petitioner had not returned to France since the August 2015 trip. Petitioner underwent surgery on his back shortly after arriving in Poland in September 2015. The pair then had a civil wedding ceremony in a city just outside of Warsaw. At the time of the wedding, Respondent was twenty-nine years old, and Petitioner was forty-two. In 2018, Respondent became pregnant with BFS, as a result of Petitioner’s sexual abuse. The parties stipulated to the following facts: “On March 14, 2022, BFS’s country of ‘habitual residence’ was Poland as used within the context of the [ ] Convention.”  “On March 14, 2022, Petitioner [ ] had rights of custody as defined by Article 5 of the [ ] Convention.”  “On March 14, 2022, Petitioner [ ] would have been exercising his rights of custody pursuant to Article 3(b) of the [ ] Convention if not for the retention of BFS.”  “The retention of BFS on March 14, 2022, was wrongful pursuant to Article 3 of the Hague Abduction Convention.”  The Court found that Petitioner has established a prima facie case for the repatriation of BFS under the Convention.

 

The Court found that throughout the parties’ relationship, Petitioner was psychologically, financially, and physically abusive toward Respondent.  The Court explained that Article 13(b) of the Convention relieves a court from the obligation to order repatriation where “there is a grave risk that ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). Pursuant to ICARA, to invoke the so-called “grave risk exception” or “grave risk defense,” a responding parent must establish by “clear and convincing evidence” that such a risk exists. 22 U.S.C. § 9003(e)(2)(A). Determination of whether a respondent has made this showing is “fact-intensive,” and courts in this Circuit are advised to interpret the grave risk exception “narrowly, lest it swallow the rule.” Souratgar v. Lee, 720 F.3d 96, 103-104 (2d Cir. 2013).  To qualify as a “grave risk of harm” for the purposes of Article 13(b), “the potential harm to the child must be severe.” Swett, 2024 WL 2034713, at *41 (quoting Souratgar, 720 F.3d at 103) (alterations adopted). In this Circuit, the kinds of situations that constitute a grave risk of harm are those in which “the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” as opposed to those in which “repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences[.]” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). Further, whether a grave risk of harm exists depends “not only [on] the magnitude of the potential harm but also the probability that the harm will materialize.” Souratgar, 720 F.3d at 103 (citing Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005)).

 

Petitioner’s abuse of Respondent compelled a finding that BFS was at grave risk of harm, as did the facts that BFS had been, and would be, exposed to that abuse. Petitioner’s history of difficulty with impulse control, predilection to intense fits of anger, and physical and psychological abuse of Respondent, often in the presence of BFS, was thoroughly supported by the record. So too was Petitioner’s psychological and, at times, physical abuse of BFS himself. The Court found that Respondent had sufficiently invoked the grave risk defense. See, e.g., Davies v. Davies, 717 F. App’x 43, 48-49 (2d Cir. 2017) (summary order) (affirming grave risk determination “premised on overwhelming evidence of [petitioner]’s extreme violence and uncontrollable anger, as well as his psychological abuse of [respondent] over many years, much of which was witnessed by [the child], and the fact that [petitioner] frequently screamed and yelled at [the child] for no legitimate reason”).

 

The finding in Davies v. Davies is illuminative, wherein the Second Circuit affirmed the trial court’s grave risk determination. In that case, the record demonstrated that the petitioner was quick to anger at even the slightest of inconveniences, such as when the respondent “didn’t do the dishes or if the bedroom was messy or if there were clothes on the floor.”  In those instances, the petitioner would scream in the respondent’s face and slam and punch doors. The record also supported the fact that the couple’s child had been a frequent witness to the petitioner’s abuse of the respondent, and that, in some instances, the petitioner had screamed at the child himself. And while the petitioner had never punched or beaten the respondent, he did exhibit violence towards others, including animals, On that record, the Second Circuit affirmed a finding of grave risk in a summary order. The petitioner in Davies and Petitioner in this case exhibited remarkably similar behavior patterns. The record showed that Petitioner’s violent behavior, which included pushing, grabbing, kicking, and hitting Respondent, exceeded that found in Davies. The record also featured several additional aggravating factors not present in Davies, namely, the few isolated instances of Petitioner’s physical abuse of BFS, as well as Petitioner’s well-established criminal history of obsessively targeting former romantic partners. Accordingly, the Court found that the repatriation of BFS to Poland would expose him to a real risk of both psychological and physical harm, and as such is inappropriate.

 

The Court’s analysis of the harm posed by the repatriation of BFS did not end there. The Second Circuit acknowledged that a grave risk of harm, and specifically, psychological harm, can exist where an abducted child with a cognitive disability has been enrolled in specific developmental programming in his new country and removing him from that programming would result in “a severe loss of the skills that he had successfully developed.” Ermini, 758 F.3d at 166. In that decision, facing for the first time the question of whether “this kind of psychological harm” fell within the scope of Article 13(b), the Second Circuit answered in the affirmative. The Second Circuit further noted that “sister signatories [to the Hague Convention] have found the risk of harm ... to be sufficiently grave” in similar circumstances. Here, as the Court detailed in its BFS haf general developmental delays for which he receives extensive therapy, including special education services and speech-language therapy. Moreover, since arriving in the United States, there has been a meaningful improvement in BFS’s “emotional, intellectual, [and] motor skills,” inter alia. Furthermore, as Dr. Fernandez opined, “[a]ny disruption to [this programming] would risk the development of mental health symptoms [ ] such as anxiety and depression,” which “could disrupt [BFS’s] progress.” While the Court did not opine herein on whether BFS’s loss of access to the services he currently received would, in and of itself, constitute a grave risk of harm upon which the Article 13(b) exception may be invoked, the Court did find that such loss supported the Court’s overall finding herein that repatriation poses a grave risk of harm to BFS.

 

The Court found that  Ameliorative Measures Available in Poland Are Not Sufficient to Protect BFS. The Court heard extensive testimony regarding the Polish legal system and its ability to combat domestic abuse. Collectively, the parties’ experts painted a picture of a substantial, multifaceted system of protection for victims of domestic violence in Poland, albeit one that, in practice, operates slowly and inefficiently and bears substantial blind spots, particularly when it comes to the protection of minor children. This finding alone left the Court uncertain that the Polish justice system could eliminate the grave risk of harm posed to BFS by repatriation. The Court found that Petitioner was unlikely to abide by any protective order put in place by a Polish court upon BFS’s repatriation, rendering the salutary effect of such a measure dubious for the purposes of the grave risk analysis. See also Walsh, 221 F.3d at 221 (holding that although the court had “no doubt that [courts of the home country] would issue appropriate protective orders,” repatriation was denied in part because the spouse’s habitual disobedience of such orders would render them ineffective). The Court emphasized Petitioner’s total unwillingness to accept any responsibility for his actions and his lack of understanding of (or reflection on) the same. Petitioner himself described this case as a “domestic violence fairy tale.” (“There have been no incidents of domestic violence perpetrated by Petitioner upon Respondent, in the presence of BFS or otherwise.”)). At trial, Petitioner largely denied having any role in his and Respondent’s marital issues: for instance, he testified that he never started an argument with Respondent after the birth of BFS (a period of almost three years before Respondent fled to the United States). Moreover, when Petitioner did admit that some incident described by Respondent or Respondent’s witnesses had occurred in at least some respect, Petitioner sought to downplay what had happened or to justify his actions, or proceeded to give unresponsive testimony instead. (proceeding to tell a story about a different dog when asked about the incident in which he yelled at Respondent’s mother for feeding the parties’ dogs)).

Because Petitioner refused to accept fault or responsibility for his actions, the Court was doubtful that any therapeutic interventions available in Poland would deter Petitioner from continued abuse or reduce the potential harm to BFS posed by repatriation. See Morales v. Sarmiento, No. 23 Civ. 281 (KPE), 2023 WL 3886075, at *13 (S.D. Tex. June 8, 2023) (finding ameliorative measures insufficient where the petitioner “expressed neither remorse nor reflection about his actions”).

 

 

Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024)[Israel][Petition denied] [Habitual residence]

In Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024) the Eleventh Circuit affirmed the judgment of the district court which denied the petition for return.

Brooke Goldstein and Matthew Simon, the mother and father, had three children together. All three children were born in New York, but the family often traveled domestically and internationally. Before 2020, the family lived in Brooklyn, the Hamptons, and Los Angeles. The family moved to Israel in December 2020, and halfway through 2021, the children became Israeli citizens and obtained Israeli passports. During the next few years in Israel, the children visited doctors, were enrolled in schools, and participated in extracurricular activities. The children speak English, but not Hebrew. The family went on vacation to Italy in October 2023, and during that time, Hamas attacked Israel. As a result, the family decided to move elsewhere because of the war. They settled in Miami where the children enrolled in school and participated in extracurricular activities. The children visited doctors and spent time with extended family in the area. For the 2024–2025 school year, the children are enrolled in schools in Miami and Israel.

In late 2023, the mother and father began to disagree about keeping the family in Miami versus returning to Israel. As a result, the mother filed an ICARA petition in federal district court seeking to require the father to return the children to Israel. The mother and father continued living together in Miami with their children when the mother filed her petition, alleging the father’s wrongful retention. The district court denied the petition. It determined that the children’s habitual residence was Florida. Alternatively, the district court concluded that, even if the children’s habitual residence were in Israel, the father did not wrongfully retain the children or prevent the mother from taking them to Israel.

 

          The Court observed that a child’s habitual residence presents ... a ‘mixed question’ of law and fact—albeit barely so.” Monasky, 589 U.S. at 84. This review is considered “mixed” because it first reviews, under a de novo standard, whether the judge applied the correct legal standard to determine the habitual residence.  If the trial judge correctly applies the “totality of the circumstances” standard to determine habitual residence, then it reviews the factual findings made by the court for clear error. Review for clear error is highly deferential. This deference is overcome only when “ ‘on the entire evidence’ we are ‘left with the definite and firm conviction that a mistake has been committed.’ ”

 

          It rejected the mothers arguments that (10 Israel was the correct habitual residence of the children; (2) that  the father wrongfully retained the children by refusing to approve of their return to Israel; and (3) that even though the district court did not reach the issue, that the father failed to present sufficient evidence that the children would be in grave danger if returned to Israel. The father disagrees with the mother’s contentions. The Court started and ened with the first issue. It pointed out that the Hague Convention, as implemented by ICARA, applies to “Contracting States,” which, here, are the United States and Israel. So, even though the district court’s determination was specific to Florida, we must determine whether the district court clearly erred in finding that the United States is the children’s habitual residence. Because it concluded the district court did not clearly err in finding the children’s habitual residence to be in the United States, we need not address the other issues on appeal. The district court correctly applied the totality of circumstances as the legal standard to determine habitual residence. This standard is a “fact-driven inquiry” depending on the “specific circumstances of the particular case.” Monasky, 589 U.S. at 78. The only question is whether the district court clearly erred in any fact findings. The mother points to several fact findings that she says are clearly erroneous. We disagree.

 

First, it rejected the mother’s argument that the district court used an incorrect wrongful retention date in its habitual residence determination. Habitual residence is determined “at the time of removal or retention[.]” Monasky, 589 U.S. at 77. To establish this date, ICARA requires the mother to prove, by a preponderance of evidence, when the father wrongfully retained the children. See Seaman, 766 F.3d at 1257. The district court found that the mother neither alleged a specific date nor did she dispute the father’s proposed date. Based on this finding, the district court determined that the date of the filed petition would serve as the date of wrongful retention. Although the record reflects a disagreement between the mother and father before the filed petition, it could not say the district court clearly erred in its finding that, if the father wrongfully retained the children, he did so as of the date of the mother’s petition.

 

     It also rejected her argument that the district court disregarded the parties’ shared intent (or lack thereof) when they returned to the United States from Israel. Shared intent is not “dispositive[,]” Monasky, 589 U.S. at 78, and “it cannot alone transform the habitual residence.” Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). Contrary to the mother’s argument, the district court found that the parties shared an intention of staying in Florida until the war in Israel ended—or, at a minimum for six months to a year. Ample evidence in the record supported that intention, and the mother filed her petition during this period. Accordingly, it was not left with a “definite and firm conviction” that the court erred..

 

The mother contended that the children’s habitual residence never changed from Israel. It rejected this argument. It could not say that the record compelled that finding. The mother had to show, by a preponderance of evidence, that the children were “habitual resident[s] of [Israel] immediately before retention in the United States[.]” Chafin v. Chafin, 742 F.3d 934, at 938 (11th Cir. 2013) To determine the children’s habitual residence, the district court relied on “objective facts,” Ruiz, 392 F.3d at 1255, like the children’s enrollment in schools and extracurriculars in the United States. It also based its finding, in part, on the father’s “credible testimony,” to conclude that the children’s residence was the United States at the time of the filed petition. When a district court makes determinations based on witness credibility, we give “even greater deference to the trial court’s findings[.]”. Being “sensitive to the unique circumstances of the case[,]” Monasky, 589 U.S. at 78 (quoting Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir. 2013)), the district court also considered the family’s transitory history—they had often moved to different cities, states, and countries for short periods of time—as relevant to whether the children had established a habitual residence in the United States. In light of the unique circumstances of this case, the district court determined that the mother did not meet her burden in demonstrating that Israel was the children’s habitual residence at the time of the alleged retention, and we cannot say the district court committed clear error in making that determination.

 

Finally, it rejected the mother’s challenge to the district court’s assessment of the children’s acclimatization to the United States. Applying the Monasky factors, the district court considered, among other facts, the children’s extracurricular activities, the location of their belongings, and their relationship with family in Florida. While the mother argued that the youngest child could not have acclimated, it could not say the district court erred in evaluating this evidence as to the children. Facts pertaining to the children’s acclimatization to the United States are relevant to assess a child’s habitual residence, and therefore, the district court did not clearly err in its consideration of them.

 

 

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.