In Oddy v Morris, 2012 WL 464227 (D.Hawaii) Christopher Oddy ("Petitioner") filed an Emergency Verified Petition for Return of Children to the United Kingdom. Petitioner and Respondent were married on April 11, 2003 in the United Kingdom; Petitioner is a citizen of the United Kingdom and Respondent is a citizen of the United States. The children were born in the County of Poole, United Kingdom, and are citizens of the United Kingdom and the United States. Petitioner and Respondent were divorced in the Bournemouth County Court in the United Kingdom on October 7, 2009. The Bournemouth County Court did not make any orders with respect to parental responsibility, residence or contact at the time of the parties' divorce. Petitioner stated that, under English law, specifically the Children Act 1989, he and Respondent share equally parental responsibility of both
children. According to Petitioner, the following acts took place in 2010 and 2011: On March 17, 2010, the Mother [Respondent] had filed an application in the United Kingdom's High Court of Justice, Family Division, Bournemouth District Registry (the "English Court"), requesting permission to permanently remove the children from the United Kingdom. A trial was scheduled for December 2 and 3, 2010 on the Mother's application. As a result of the Mother's application for permanent removal having been filed, the English Court ordered that a report be prepared by the Children and Family Reporter, Mrs. Pat Holmes. Mrs. Holmes prepared her report dated October 8, 2010 and submitted it to the English Court. After the report was submitted to the English Court, a hearing was held before His Honour Judge Meston Q.C. on October 25, 2010. Judge Meston had reviewed both parties' submissions, reviewed the report prepared by the Children and Family Reporter and had heard from counsel for both parties with respect to agreements reached between the parties. At the hearing on October 25, 2010, the English Court issued a Residence and Contact Order on October 25, 2010. . The Residence and Contact Order provided hat the children shall reside with the Mother in the United Kingdom and set out a detailed and extensive schedule of contact for the Father in the United Kingdom. No order was made with respect to the parents' ex lege joint parental responsibility pursuant to the Children Act 1989. The Residence and Contact Order provided hat the Mother's application to permanently remove the children from the United Kingdom would be withdrawn and that the trial on her application scheduled for December 2-3, 2010 be vacated.
Thereafter the parties functioned pursuant to the Residence and Contact Order, which did not address the issue of parental responsibility, and both parties continued to share parental responsibility under the Children Act. Because the parties were both the parents of the children and no court suspended or otherwise terminated either party's parental responsibility, the parties continue to share parental responsibility for the children under the Children Act by operation of law. The Residence and Contact Order provides as follows with respect to removing the children from the United Kingdom: "WARNING: Where a Residence Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or the leave of court. However, this does not prevent the removal of the child for a period of less than one month by the person in whose favor the Residence Order is made (Sections 13(1) and (2) Children Act 1989). It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without the leave of the court." After the issuance of the Residence and Contact Order, the parties and children continued to reside in the United Kingdom and followed the schedule for residence and contact set out in the Residence and Contact Order. The Father was scheduled to have his regularly scheduled time with the children on July 30, 2011 and was also scheduled to begin his summer holiday time with the
children on August 1, 2011. When the Father went to pick up the children on July 30, 2011, he discovered that the Mother's home was completely empty. Immediately upon discovering that the Mother's home was completely empty, the Father began searching for the children and reaching out to family and friends for help locating his daughters. The Father learned from one of the Mother's friends that the Mother had taken the children to Hawaii and later confirmed from other friends and relatives that the Mother had taken the children to Hawaii.
The testimony and evidence presented at the hearing supported these facts as set forth in the Petition. The Court found that Petitioner established that he had parental responsibility for the children and did not consent to their removal from their habitual residence in the United Kingdom. Respondent did not obtain leave of court before she removed the children from the United Kingdom, and, since the removal of the children, Petitioner had not acquiesced to their removal or retention.
Based on the evidence presented, the Court found that Respondent had not met her burden of establishing that the children were at grave risk of harm if returned to the United Kingdom. The evidence that Petitioner was physically, verbally, and mentally abusive to Respondent during the course of their marriage and thereafter was troubling. Respondent testified regarding Petitioner's history of alcohol abuse and anger management issues, and its effect on the family. The Court found Respondent's
testimony credible with respect to her fear of Petitioner's angry outbursts and threats of violence against her and her friends. Respondent also presented credible evidence that the children witnessed verbal confrontations and disagreements between their parents, which may have affected the children psychologically and emotionally. Specifically, a 2006 incident in which Petitioner physically kicked and struck Respondent in front of the oldest child and destroyed household property, and subsequently pleaded guilty to breaching the peace and criminal property damage, and an April 2011 incident at Waterloo Station in which Petitioner verbally threatened Respondent and a third-party in front of the children during a custody exchange. The Court also heard testimony regarding an April 2011 incident during which the younger child was injured while in Petitioner's care. The parties disputed the cause and severity of the injury to the child's elbow. Respondent maintained that Petitioner yanked
the child up by her arm as she resisted having her diaper changed; Petitioner contended the injury was the result of normal play with the children. Respondent faulted Petitioner for waiting several hours between the time of the injury and when he eventually sought medical care for the child the next morning. A hospital record indicated the following history of the presenting complaint: "[p]laying when getting nappy changed L. arm around her elbow very painful and not moving it, very upset in triage." The Court found that the parties' respective views of the incident were reconcilable based on the testimony and evidence presented at the hearing, and credited each. Respondent also recounted another recent incident in which the older child became ill while playing outside with Petitioner during poor weather conditions, and detailed her concerns regarding Petitioner's parenting capabilities. It was clear that the parties' relationship was troubled both during and after their marriage, when Petitioner was abusive toward Respondent, and that Respondent believed that matters were deteriorating in the months before she removed the children. The Court, however, found that, as troubling as this behavior may be, Respondent had not established for purposes of the article 13(b) analysis that the children would suffer "serious abuse that is a great deal more than minimal." Gaudin, 415 F.3d at 1035; see also Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.2000) (stating that a husband's "verbal abuse and an incident of physical shoving" directed at his wife, while regrettable, was insufficient to establish a "grave risk" of harm to the child, especially where there was no allegation that the father had ever abused the child, either physically or psychologically). The Court considered the alleged psychological harm suffered by the children and found that, while regrettable and unacceptable, any such harm did not to rise to the level required for sustaining an article 13(b) exception. See Whallon, 230 F.3d at 460 ("The logic, purpose, and text of the Convention all mean that such harms are not per se the type of psychological harm contemplated by the narrow exception under article 13(b). To conclude otherwise would risk substituting a best interest of the child
analysis for the analysis the Convention requires. This would undercut the Convention's presumption of return where rights of custody have been violated....").
Based on the foregoing, the Court granted the Petition.
Tuesday, February 21, 2012
Demaj v Sakaj, 2012 WL 476168 (D.Conn.) [Italy][Disclosure]
In Demaj v Sakaj, Slip Copy, 2012 WL 476168 (D.Conn.) On February 11, 2009, Esheref Demaj, filed a petition against Freda Sakah, pursuant to the Hague Convention for the immediate return of his three minor children to Italy. Petitioner claimed she illegally and wrongfully removed the minor children from Italy on or about September 7, 2007, in violation of Petitioner's custodial rights under Italian law. On January 25, 2012, Petitioner filed a Motion to Compel Production of Documents. Immediately following the commencement of this action.
Both parties acknowledged that when Petitioner was in Connecticut in January 2010 to visit his children, Petitioner, while at a Petco store, made a statement in his native Albanian, according to Petitioner, "curs[ing]", or according to Respondent's minor child, Kimberly to whom Petitioner was speaking, "threaten[ing] to kill" Respondent and her mother. Thereafter, Respondent filed a police report, a warrant was issued for Petitioner's arrest, and a mandated reporter made a referral of child abuse to the Department of Children and Families ["DCF"], which resulted in a substantiated report. According to Petitioner, on August 19, 2010, Respondent applied for a U-Visa. A U-Visa provides temporary immigration benefits to aliens who are victims of qualifying criminal activity, and to their qualifying family members, as appropriate. See http://www.uscis.gov/i-918 (Last visited Feb. 8, 2012). According to Respondent, by the summer of 2010, Respondent and the minor children had lived in this country for almost three years and their original visas had expired, so as to remain here legally, Respondent applied for nonimmigrant status which was granted to her and the children in July 2011. With the approval of their new nonimmigration status of legal permanent residents of the United States, Respondent and the children were issued Social Security cards and Employment Authorization cards, which Respondent used to obtain a Connecticut driver's license, and to register the children for Connecticut's Supplemental Nutrition Assistance Program and the healthcare program. Petitioner contended that he did not learn of Respondent's change in immigration status until December 30, 2011, in response to Petitioner's filing a motion to stay in the state court divorce proceedings that Respondent initiated in 2009. Petitioner contended that upon information and belief, Respondent used her passport, to which she was not supposed to have access, in accordance with this Court's order, to apply for a U-Visa, and, according to Petitioner, Respondent's immigration status wasrelevant to this case. Further, Petitioner contended that these documents were necessary for Petitioner to address Respondent's use of the "well-settled" defense at trial, as such documents will include Respondent's allegations of abuse which Petitioner will use in his case-in-chief, and to impeach Respondent by questioning the credibility of any testimony she may provide at trial. Accordingly, Petitioner requested the production of documents concerning Respondent's U-Visa application.
In her brief in opposition, Respondent argued that all of the appropriate documents, which documents include all visas, social security cards, and authorizations to work, had been produced, and the other documents withheld are those which would violate the attorney/client privilege or would violate the intent of protections found in 8 U.S.C. 1367. Additionally, Respondent asserted that her immigration status was not an important factor to the "well-settled" defense, and Petitioner had no standing to second-guess the Department of Homeland Security ["DHS"] and its decision to grant Respondent a U-Visa. Petitioner contended that courts have found "immigration status to be of utmost importance to establishing the Article 12 well settled defense
In Petitioner's Motion, he sought to compel production of documents responsive to Request Nos. 1, 3, 4 and 5, which document requests sought documents or correspondence related to Respondent and the children's current immigration status (No. 1), and related to any changes made to their immigration status since arrival in the United States (No. 3), as well as documents and correspondence, including, but not limited to applications, affidavits and all supporting documents submitted to the Department of Homeland Security or any other Federal or State agency or officials related to their immigration status or the change therein (No. 4), and any documents or correspondence between Respondent and the Department of Homeland Security or any other Federal or State agency or officials.
The Court observed that at issue in this was the application of the "well-settled" defense, which defense must be established by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B) . The Convention itself does not define what constitutes a child being "settled in its new environment." Hague Convention, art. 12. However, the U.S. State Department has established that "nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof" in asserting the well-settled defense. Several factors are considered in determining whether or not a child has become settled: the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's
employment[;] and whether the child has friends and relatives in the new area. Lozano v. Alvarez, No. 10-CV-8485(KMK), 2011 WL 3667444, at *28 (S.D.N.Y. Aug. 22, 2011) (citations omitted); In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001) (same); see also In re: Filipczak, No. 11 Civ. 1178(VM), 2011 WL 6980845, at *7 (S.D.N.Y. Dec. 23, 2011), citing Lozano, 2011 WL 366744, at *28; Matovski v. Matovski, No. 06 Civ. 4259(PKC), 2007 WL 2600862, at *13 (S.D.N.Y. Aug. 31, 2007)(multiple citations omitted)(same); Reyes Olguin v. Cruz Santana, No. 03 CV 6299 JG, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005) (citations omitted)(same);
Diaz Arboleda v. Arenas, 311 F.Supp.2d 336, 343 (E.D.N.Y.2004) (citation
omitted)(same). To reach a finding of settled, the Court must be presented with substantial evidence of significant connections to the new environment. Koc, 181 F.Supp.2d at 152 (internal quotations & citation omitted).
In the bulk of cases in which immigration status is considered, it is done so after an assessment of the foregoing factors, and it is considered as only one element among many pointing either in favor of a finding of significant ties to the United States, or in finding a lack of significant ties to the United States. The Court pointed out that U.S. District Judge Kenneth M. Karas stated, "[c]ourts that have found that a child was not settled have tended to do so where ... a child has moved frequently and therefore not had a stable living situation." Lozano, 2011 WL 3667444, at *30 (citations omitted); see also Filipczak, 2011 WL 6980846, at *7-8 (immigration not considered but finding of not settled when lived in multiple cities and attended multiple schools, caring and intact family in both countries, and guardian ad litem testified children are readily adaptable to any environment). In Lozano, while Judge Karas noted concern that both the Respondent and the child had overstayed their visas, and thus were here illegally, he considered the other factors referenced above which evidenced their connection to the United States, before concluding that the child was, in fact, well settled in her current environment. Lozano, 2011 WL 3667444, at *31. Following the Ninth Circuit's lead, see In re B. Del C.S.B., 559 F.3d 999, 1010-14 (9th Cir.2009), "the idea that immigration status should render an otherwise settled child not settled" was
rejected, and Judge Karas concluded that "immigration status should only be a significant factor in the settled analysis if there is an immediate concrete threat of deportation." Lozano, 2011 WL 3667444, at *30,citing B. Del C.S.B., 559 F.3d at 1010-14. The rationale for this position, with which the Court agreed, was grounded in the language of the Convention. The Convention is concerned with the present as the Article 12 defense applies to a child "now settled in its new environment[,]" and the determination of the child's future well-being is left to the court conducting custody
proceedings. See Hague Convention, art. 12 ; B. Del C.S.B., 559
F.3d at 1013.
Respondent represented to the Court that she applied for and was granted nonimmigrant status in July 2011. An individual granted U Nonimmigrant status may, after threecontinuous years of physical presence in the United States, apply for a green card. Even if the Court were to consider immigration status as a "most important factor" in the "well-settled" defense, the Court need only consider the status, which status was evident from the existence of the U-Visa. Thus, to the extent not already produced, on or before February 16, 2012, Respondent was directed to produce copies of their current visas.
Petitioner requested Respondent's copies of all documents that would be barred from disclosure by "the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of the Department of Homeland Security, or Department of State" under 8 U.S.C. 1367(a)(2), but to the extent they were in Petitioner's possession, such disclosure, while arguably running afoul of the letter of this section, was not prohibited by this statute. Although Petitioner asserted that he sought this information to determine whether the statements made in the U-Visa application were consistent with the evidence presented, Petitioner also claimed that Respondent secured her change in immigration status through fraud, which he sought to establish at trial. Thus, while Petitioner may need the documents underlying and related to Respondent's U-Visa application as they may be relevant to her credibility and may be used to impeach her, in order to use these documents in that manner, Petitioner must seek to undermine the decision of DHS by challenging the veracity of Respondent's statements, upon which both DHS and law enforcement relied, thereby, interfering with Respondent's immigration case. Petitioner's Motion to Compel production of documents responsive to Request Nos. 4 and 5 was denied.
Both parties acknowledged that when Petitioner was in Connecticut in January 2010 to visit his children, Petitioner, while at a Petco store, made a statement in his native Albanian, according to Petitioner, "curs[ing]", or according to Respondent's minor child, Kimberly to whom Petitioner was speaking, "threaten[ing] to kill" Respondent and her mother. Thereafter, Respondent filed a police report, a warrant was issued for Petitioner's arrest, and a mandated reporter made a referral of child abuse to the Department of Children and Families ["DCF"], which resulted in a substantiated report. According to Petitioner, on August 19, 2010, Respondent applied for a U-Visa. A U-Visa provides temporary immigration benefits to aliens who are victims of qualifying criminal activity, and to their qualifying family members, as appropriate. See http://www.uscis.gov/i-918 (Last visited Feb. 8, 2012). According to Respondent, by the summer of 2010, Respondent and the minor children had lived in this country for almost three years and their original visas had expired, so as to remain here legally, Respondent applied for nonimmigrant status which was granted to her and the children in July 2011. With the approval of their new nonimmigration status of legal permanent residents of the United States, Respondent and the children were issued Social Security cards and Employment Authorization cards, which Respondent used to obtain a Connecticut driver's license, and to register the children for Connecticut's Supplemental Nutrition Assistance Program and the healthcare program. Petitioner contended that he did not learn of Respondent's change in immigration status until December 30, 2011, in response to Petitioner's filing a motion to stay in the state court divorce proceedings that Respondent initiated in 2009. Petitioner contended that upon information and belief, Respondent used her passport, to which she was not supposed to have access, in accordance with this Court's order, to apply for a U-Visa, and, according to Petitioner, Respondent's immigration status wasrelevant to this case. Further, Petitioner contended that these documents were necessary for Petitioner to address Respondent's use of the "well-settled" defense at trial, as such documents will include Respondent's allegations of abuse which Petitioner will use in his case-in-chief, and to impeach Respondent by questioning the credibility of any testimony she may provide at trial. Accordingly, Petitioner requested the production of documents concerning Respondent's U-Visa application.
In her brief in opposition, Respondent argued that all of the appropriate documents, which documents include all visas, social security cards, and authorizations to work, had been produced, and the other documents withheld are those which would violate the attorney/client privilege or would violate the intent of protections found in 8 U.S.C. 1367. Additionally, Respondent asserted that her immigration status was not an important factor to the "well-settled" defense, and Petitioner had no standing to second-guess the Department of Homeland Security ["DHS"] and its decision to grant Respondent a U-Visa. Petitioner contended that courts have found "immigration status to be of utmost importance to establishing the Article 12 well settled defense
In Petitioner's Motion, he sought to compel production of documents responsive to Request Nos. 1, 3, 4 and 5, which document requests sought documents or correspondence related to Respondent and the children's current immigration status (No. 1), and related to any changes made to their immigration status since arrival in the United States (No. 3), as well as documents and correspondence, including, but not limited to applications, affidavits and all supporting documents submitted to the Department of Homeland Security or any other Federal or State agency or officials related to their immigration status or the change therein (No. 4), and any documents or correspondence between Respondent and the Department of Homeland Security or any other Federal or State agency or officials.
The Court observed that at issue in this was the application of the "well-settled" defense, which defense must be established by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B) . The Convention itself does not define what constitutes a child being "settled in its new environment." Hague Convention, art. 12. However, the U.S. State Department has established that "nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof" in asserting the well-settled defense. Several factors are considered in determining whether or not a child has become settled: the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's
employment[;] and whether the child has friends and relatives in the new area. Lozano v. Alvarez, No. 10-CV-8485(KMK), 2011 WL 3667444, at *28 (S.D.N.Y. Aug. 22, 2011) (citations omitted); In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001) (same); see also In re: Filipczak, No. 11 Civ. 1178(VM), 2011 WL 6980845, at *7 (S.D.N.Y. Dec. 23, 2011), citing Lozano, 2011 WL 366744, at *28; Matovski v. Matovski, No. 06 Civ. 4259(PKC), 2007 WL 2600862, at *13 (S.D.N.Y. Aug. 31, 2007)(multiple citations omitted)(same); Reyes Olguin v. Cruz Santana, No. 03 CV 6299 JG, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005) (citations omitted)(same);
Diaz Arboleda v. Arenas, 311 F.Supp.2d 336, 343 (E.D.N.Y.2004) (citation
omitted)(same). To reach a finding of settled, the Court must be presented with substantial evidence of significant connections to the new environment. Koc, 181 F.Supp.2d at 152 (internal quotations & citation omitted).
In the bulk of cases in which immigration status is considered, it is done so after an assessment of the foregoing factors, and it is considered as only one element among many pointing either in favor of a finding of significant ties to the United States, or in finding a lack of significant ties to the United States. The Court pointed out that U.S. District Judge Kenneth M. Karas stated, "[c]ourts that have found that a child was not settled have tended to do so where ... a child has moved frequently and therefore not had a stable living situation." Lozano, 2011 WL 3667444, at *30 (citations omitted); see also Filipczak, 2011 WL 6980846, at *7-8 (immigration not considered but finding of not settled when lived in multiple cities and attended multiple schools, caring and intact family in both countries, and guardian ad litem testified children are readily adaptable to any environment). In Lozano, while Judge Karas noted concern that both the Respondent and the child had overstayed their visas, and thus were here illegally, he considered the other factors referenced above which evidenced their connection to the United States, before concluding that the child was, in fact, well settled in her current environment. Lozano, 2011 WL 3667444, at *31. Following the Ninth Circuit's lead, see In re B. Del C.S.B., 559 F.3d 999, 1010-14 (9th Cir.2009), "the idea that immigration status should render an otherwise settled child not settled" was
rejected, and Judge Karas concluded that "immigration status should only be a significant factor in the settled analysis if there is an immediate concrete threat of deportation." Lozano, 2011 WL 3667444, at *30,citing B. Del C.S.B., 559 F.3d at 1010-14. The rationale for this position, with which the Court agreed, was grounded in the language of the Convention. The Convention is concerned with the present as the Article 12 defense applies to a child "now settled in its new environment[,]" and the determination of the child's future well-being is left to the court conducting custody
proceedings. See Hague Convention, art. 12 ; B. Del C.S.B., 559
F.3d at 1013.
Respondent represented to the Court that she applied for and was granted nonimmigrant status in July 2011. An individual granted U Nonimmigrant status may, after threecontinuous years of physical presence in the United States, apply for a green card. Even if the Court were to consider immigration status as a "most important factor" in the "well-settled" defense, the Court need only consider the status, which status was evident from the existence of the U-Visa. Thus, to the extent not already produced, on or before February 16, 2012, Respondent was directed to produce copies of their current visas.
Petitioner requested Respondent's copies of all documents that would be barred from disclosure by "the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of the Department of Homeland Security, or Department of State" under 8 U.S.C. 1367(a)(2), but to the extent they were in Petitioner's possession, such disclosure, while arguably running afoul of the letter of this section, was not prohibited by this statute. Although Petitioner asserted that he sought this information to determine whether the statements made in the U-Visa application were consistent with the evidence presented, Petitioner also claimed that Respondent secured her change in immigration status through fraud, which he sought to establish at trial. Thus, while Petitioner may need the documents underlying and related to Respondent's U-Visa application as they may be relevant to her credibility and may be used to impeach her, in order to use these documents in that manner, Petitioner must seek to undermine the decision of DHS by challenging the veracity of Respondent's statements, upon which both DHS and law enforcement relied, thereby, interfering with Respondent's immigration case. Petitioner's Motion to Compel production of documents responsive to Request Nos. 4 and 5 was denied.
Lopez v Villareal, 2012 WL 458490 (D.Nev.)) [Mexico] [Consent or Acquiescence]
In Lopez v Villareal, 2012 WL 458490 (D.Nev.)) Jorge Ramon Guadalupe Rivera Lopez, has filed a verified petition pursuant to the Hague Convention and respondent, Janet Nieri Villareal, aka Janet Patchett, moved to dismiss or stay this action. Jorge and Janet married in Mexico in April 2003. A son was born to the couple in November 2003. Jorge and Janet divorced, in Mexico, in August 2009. Janet was awarded physical custody of their son. Jorge was granted the right to visit and spend time with their son on any day of the week. Jorge could take their son outside the city only with the prior written consent of Janet. Janet was required only to inform Jorge when she intended to take their son outside of the city, informing him of the city, address, and specific time that would be spent outside of the city. Until late-December 2009, Jorge, Janet, and their son continued to reside in Mexico. In December, Jorge consented to Janet traveling with their son to the United States. Janet and their son entered the United States on December 26, 2009. By January 15, 2010, Janet informed Jorge that she would not be returning to Mexico. Jorge alleged that he did not consent to their son remaining in the United States after January 15, 2010. On December 15, 2011, Jorge filed the present petition pursuant to the Hague Convention and the International Child Abduction Remedies Act, seeking the return of their son to Mexico.
Janet's response to Jorge's petition raised a single argument-consent or acquiescence under Article 13-that rests solely upon the allegations of the petition. She argued that, pursuant to those allegations, Jorge could not obtain the relief requested as a matter of law. She pointed to Jorge's admission that in December 2009 he consented to her travel to the United States with their son and his concession that he was aware in January 2010 that she would not be returning to Mexico. She further noted that Jorge did not file the present petition until December 2011. Janet argues that Jorge consented to their son's travel to the United States. She further argued that Jorge's knowledge that Janet would not be returning to Mexico with their son, and his lack of action in attempting to obtain the return of their son establishes that he acquiesced to Janet's retention of their son in the United States.
The Court disagreed that Jorge alleged facts establishing that he consented and acquiesced to Janet's retention of their son in the United States. He alleged facts indicating that he consented to Janet traveling to the United States with their son. Absent from the petition, however, was any allegation suggesting that Jorge's consent was for Janet to travel to and remain in the United States, and indefinitely retain their son in the United States. Rather, Jorge alleged in the petition that Janet
indicated that the purpose of the travel was for Janet to visit her sister, and that Janet intended to return to Mexico with their son by January 7, 2010. Jorge did not allege that he consented to Janet retaining their son in the United States after January 15, 2010.
Jorge's admission that he knew Janet was retaining their son in the United States in January 2010, and his filing of the petition in December 2011, did not establish as a matter of law that he acquiesced in Janet's retention of their son in the United States after January 2010. Janet did not direct the Court's attention to any authority suggesting that a delay of 23 months between obtaining knowledge of the wrongful retention and the filing of a Hague petition establishes, as a matter of law, acquiescence in the wrongful retention. This is particularly true where, as here, Jorge alleged that subsequent to Janet's wrongful retention of their son he has sought the assistance of the Central Authority of Mexico, the Mexican Courts, the United States State Department, and local law enforcement officials in Las Vegas in obtaining the return of their son to Mexico. Accordingly, as Jorge had not alleged facts establishing, as a matter of law, that he either consented or acquiesced to Janet's retention of their son in the United States after January 15, 2010, the Court denied the motion to dismiss Jorge's petition.
Janet's response to Jorge's petition raised a single argument-consent or acquiescence under Article 13-that rests solely upon the allegations of the petition. She argued that, pursuant to those allegations, Jorge could not obtain the relief requested as a matter of law. She pointed to Jorge's admission that in December 2009 he consented to her travel to the United States with their son and his concession that he was aware in January 2010 that she would not be returning to Mexico. She further noted that Jorge did not file the present petition until December 2011. Janet argues that Jorge consented to their son's travel to the United States. She further argued that Jorge's knowledge that Janet would not be returning to Mexico with their son, and his lack of action in attempting to obtain the return of their son establishes that he acquiesced to Janet's retention of their son in the United States.
The Court disagreed that Jorge alleged facts establishing that he consented and acquiesced to Janet's retention of their son in the United States. He alleged facts indicating that he consented to Janet traveling to the United States with their son. Absent from the petition, however, was any allegation suggesting that Jorge's consent was for Janet to travel to and remain in the United States, and indefinitely retain their son in the United States. Rather, Jorge alleged in the petition that Janet
indicated that the purpose of the travel was for Janet to visit her sister, and that Janet intended to return to Mexico with their son by January 7, 2010. Jorge did not allege that he consented to Janet retaining their son in the United States after January 15, 2010.
Jorge's admission that he knew Janet was retaining their son in the United States in January 2010, and his filing of the petition in December 2011, did not establish as a matter of law that he acquiesced in Janet's retention of their son in the United States after January 2010. Janet did not direct the Court's attention to any authority suggesting that a delay of 23 months between obtaining knowledge of the wrongful retention and the filing of a Hague petition establishes, as a matter of law, acquiescence in the wrongful retention. This is particularly true where, as here, Jorge alleged that subsequent to Janet's wrongful retention of their son he has sought the assistance of the Central Authority of Mexico, the Mexican Courts, the United States State Department, and local law enforcement officials in Las Vegas in obtaining the return of their son to Mexico. Accordingly, as Jorge had not alleged facts establishing, as a matter of law, that he either consented or acquiesced to Janet's retention of their son in the United States after January 15, 2010, the Court denied the motion to dismiss Jorge's petition.
Friday, January 6, 2012
Guzzo v Cristofano, 2011 WL 6934108 (S.D.N.Y.) [Italy] [Habitual Residence]
In Guzzo v Cristofano, 2011 WL 6934108 (S.D.N.Y.) the District Court denied the Petition of Gerardo Guzzo for an order directing the return to Italy of his five-year-old son, who was in the care of his mother, Respondent Luisa Maria Cristofano, in New York.
Petitioner was an Italian citizen who was born and raised in Italy. Respondent was a United States citizen who grew up in the Bronx, New York. The parties met in September 2005, while on a flight from New York to Italy. Petitioner and Respondent are both attorneys with small practices near their respective homes. The parties' plan was to have a "bi-continental" marriage, in which "[Respondent] would live in New York, [Petitioner] would live in Italy, and [the parties] would go back and forth." In January 2006, Respondent discovered that she was pregnant. Petitioner told Respondent that if she agreed to live in Scario, he would marry her in a religious ceremony. Respondent resisted, and the parties were ultimately married in a civil ceremony in New York while maintaining their bi-continental residences. In September 2006, the child was born. In the several years following the child's birth, the parties maintained their bicontinental marriage as originally contemplated. From 2006 through 2008, each party visited the other on numerous occasions. In December 2007, the parties agreed on a visitation schedule pursuant to which Respondent would stay with Petitioner in Italy for a two-month period, and then return to New York for no more than twenty days. Respondent testified that, through the end of 2008, she attempted to
comply with that arrangement. Despite the substantial amount of time that she was
spending in Italy, Respondent maintained her New York law office, and even refused an
offer to sell her practice to a pair of New York attorneys.
In July 2008, Respondent became pregnant again. The parties again argued over whether the child should be born in Italy or New York. In August 2008, however, Respondent miscarried. (Id.) For the remainder of 2008, Respondent and the child spent the vast majority of their time in Italy. In November 2008, Respondent became pregnant once again. Shortly thereafter, the parties' relationship became quite tumultuous. They argued often, and, ultimately, Respondent had another miscarriage.
In February 2009, Respondent took the child back to New York and told Petitioner that she wanted a separation.
Over the next several months, the parties and their counsel negotiated a separation agreement, which was executed in English by Respondent on May 20, 2009, and in Italian by Petitioner on June 10, 2009. The Separation Agreement provided, among other things, that: (i) "[t]he parties shall continue to live separate and apart"; (ii) "[t]he Wife shall have custody[ ] of the minor child of the parties"; (iii) "the Husband shall pay child support to the Wife for the benefit of the minor child of the parties in the amount of Euro 500 per month"; and (iv) Petitioner "consents to [the child's] current registration in the Good Counsel Academy" in White Plains, New York.
The Separation Agreement also provided for Petitioner's visitation rights as follows:
The husband and wife may agree to any reasonable periods of visitation of the child
by the husband at any time, subject to reasonable notice and final approval by the wife
as to the location and length of such visitation. In view of the international aspect of
this issue, however, the husband shall have the absolute and uncompromisable right of
visitation during the months of July and August of each year in Italy, or such other
two month (or 60-day period) as shall be agreed upon by husband and wife with two
months prior notice by either. The husband shall also have the absolute right of visitation with respect to Christmas and Easter in alternating years.
When visitation occurs in Italy and until the child is 16 years of age, the wife shall
accompany [the child] who will live with his father. At the husband's absolute and
unreviewable discretion, the wife may live with the child during the 2-month period of
visitation throughout the year; however, the wife shall have the right to find and live at
her own apartment at her expense.... When [the child] shall become 16 years of age,
he shall be able to travel alone and can go to Italy to visit his father who will pay for his
international travel and his stay.
When visitation occurs in the USA, the husband may reside in the basement
apartment at the wife's house at 34 Read Street, Tuckahoe, NY, at his discretion and
rent free.
After the Separation Agreement was signed by both parties, Respondent returned to
Italy with the child. Respondent testified that her trip to Italy was undertaken as an
attempt at reconciliation with Petitioner, but that she was only willing to make the
attempt because she had the protection of the Separation Agreement. Respondent also testified that, regardless of the reconciliation attempt, she never intended to have the child attend primary school in Italy and that she always planned to live with the child in New York once he was in kindergarten. Respondent spent most of the summer of 2009 in Scario, and, after a brief stay in New York, Respondent returned to Scario in November 2009 and the child began attending nursery school there. At the end of 2009, Respondent purchased a small cottage in the hills outside Scario for 30,000 Euros. Respondent testified that she purchased the house because the Separation Agreement required her to bring the child to Scario each summer for two months for Petitioner's visitation.
In 2010, Respondent and the child spent the vast majority of the year in Scario, but
periodically made trips to New York. In September 2010, Respondent
became pregnant yet again, but miscarried shortly thereafter. Around this time, the parties were arguing frequently, and in November 2010, Respondent took the child back to New York with the intention of not returning to Italy.
In late December 2010, Petitioner visited Respondent in New York and the parties agreed to make another attempt at reconciliation. Respondent and the child returned to Italy with Petitioner on January 10, 2011. Over the next several months, however, the parties' relationship became tumultuous once again and, in August 2011, Respondent returned to New York with the child, where they remained. Respondent enrolled the child at Good Counsel Academy in White Plains and initiated a divorce proceeding in Westchester County.
Petitioner initiated this action on October 12, 2011, by filing a writ of habeas corpus in Supreme Court, Bronx County, pursuant to the Hague Convention and the International Child Abduction Remedies Act. On October 19, 2011, Respondent removed the action to the District Court.
The District Court found that Petitioner failed to demonstrate by a preponderance of the evidence that Italy, rather than New York, was the child's habitual residence. It observed that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child's habitual residence pursuant to the Hague Convention: First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent. Gitter, 396 F.3d at 134.
The Court found that the Separation Agreement, pursuant to which the parties
agreed that Respondent would have custody of the child, live with the child in New York, and send the child to school in New York, constituted the last shared intent of the
parties. The terms of the Separation Agreement were consistent with the nature of the
parties' relationship leading up to the execution of the document. From the time the
parties met in 2005, they engaged in a "bi-continental" relationship in which
"[Respondent] would live in New York, [Petitioner] would live in Italy, and [the parties]
would go back and forth. If anything, the parties' actions prior to the Separation Agreement suggest that Petitioner-and not Respondent- was open to relocating permanently.
Petitioner argued that, even if the Separation Agreement represented the
intent of the parties at the time it was executed, the parties' subsequent actions demonstrate a changed shared intent that the child should be raised in Italy. Petitioner testified that, after the agreement was signed and Respondent went with the child to visit Petitioner in Italy, the parties "started to live as if the agreement had never existed." Petitioner, for example, testified that Respondent made no effort to enforce the child support provisions of the Separation Agreement. Indeed, according to Petitioner:
Petitioner testified that, after this purported reconciliation, the parties developed a new "mutually shared opinion that [the child] would start the ... first five years of primary school and the following three years of middle school" in Italy before moving to the United States to continue his secondary education. With respect to this assertion, the Court found that Petitioner's testimony was not credible. Moreover, it was belied by the other evidence presented at trial. On the other hand, Respondent's conduct following the execution of the Separation Agreement, when viewed as a whole, was thoroughly consistent with her stated intention to educate the child in New York once it became time to enroll him in kindergarten. Despite the parties' apparently sincere attempts at reconciliation, the evidence demonstrated that Respondent never contemplated spending her life in Italy or having the child attend Italian schools following preschool.
Moreover, the evidence demonstrates that Respondent retained her New York real
estate-another fact consistent with her stated intention to have the child attend school
in New York. Additionally, and of particular significance, Respondent repeatedly refused to register the parties' marriage in Italy, which would have entitled her to state funded health insurance while there. The Court's finding that New York was the child's place of habitual residence was consistent with recent Second Circuit case law on this issue. Gitter, 396 F.3d at 128; Poliero v. Centenaro, 373 F. App'x 102 (2d Cir.2010)
The Court found that taken as a whole, the evidence presented that Respondent did not intend to make Italy the child's habitual residence was more compelling than that cited by the Gitter and Poliero courts. First, and most significantly, the parties documented their shared intention in a Separation Agreement, which expressly contemplated that the child would live and attend school in New York with Respondent. Second, Respondent testified credibly that, after executing the Separation Agreement, her willingness to attempt a reconciliation in Italy was clearly premised on the understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement. Third, the evidence suggested that, even if the parties were to reconcile, Respondent still intended to send the child to kindergarten in New York. Finally, even during Respondent's time in Italy following the Separation Agreement, Respondent retained numerous connections to New York. Respondent maintained real estate and a law practice in New York. Additionally, she had only a New York drivers license and bank account. Respondent also kept the majority of her possessions in New York, including furniture, books, and clothing.
Neither Respondent nor the child had Italian passports and, on every trip to Italy, entered as tourists on 90-day visas. Thus, the evidence overwhelmingly demonstrated that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence.
Petitioner was an Italian citizen who was born and raised in Italy. Respondent was a United States citizen who grew up in the Bronx, New York. The parties met in September 2005, while on a flight from New York to Italy. Petitioner and Respondent are both attorneys with small practices near their respective homes. The parties' plan was to have a "bi-continental" marriage, in which "[Respondent] would live in New York, [Petitioner] would live in Italy, and [the parties] would go back and forth." In January 2006, Respondent discovered that she was pregnant. Petitioner told Respondent that if she agreed to live in Scario, he would marry her in a religious ceremony. Respondent resisted, and the parties were ultimately married in a civil ceremony in New York while maintaining their bi-continental residences. In September 2006, the child was born. In the several years following the child's birth, the parties maintained their bicontinental marriage as originally contemplated. From 2006 through 2008, each party visited the other on numerous occasions. In December 2007, the parties agreed on a visitation schedule pursuant to which Respondent would stay with Petitioner in Italy for a two-month period, and then return to New York for no more than twenty days. Respondent testified that, through the end of 2008, she attempted to
comply with that arrangement. Despite the substantial amount of time that she was
spending in Italy, Respondent maintained her New York law office, and even refused an
offer to sell her practice to a pair of New York attorneys.
In July 2008, Respondent became pregnant again. The parties again argued over whether the child should be born in Italy or New York. In August 2008, however, Respondent miscarried. (Id.) For the remainder of 2008, Respondent and the child spent the vast majority of their time in Italy. In November 2008, Respondent became pregnant once again. Shortly thereafter, the parties' relationship became quite tumultuous. They argued often, and, ultimately, Respondent had another miscarriage.
In February 2009, Respondent took the child back to New York and told Petitioner that she wanted a separation.
Over the next several months, the parties and their counsel negotiated a separation agreement, which was executed in English by Respondent on May 20, 2009, and in Italian by Petitioner on June 10, 2009. The Separation Agreement provided, among other things, that: (i) "[t]he parties shall continue to live separate and apart"; (ii) "[t]he Wife shall have custody[ ] of the minor child of the parties"; (iii) "the Husband shall pay child support to the Wife for the benefit of the minor child of the parties in the amount of Euro 500 per month"; and (iv) Petitioner "consents to [the child's] current registration in the Good Counsel Academy" in White Plains, New York.
The Separation Agreement also provided for Petitioner's visitation rights as follows:
The husband and wife may agree to any reasonable periods of visitation of the child
by the husband at any time, subject to reasonable notice and final approval by the wife
as to the location and length of such visitation. In view of the international aspect of
this issue, however, the husband shall have the absolute and uncompromisable right of
visitation during the months of July and August of each year in Italy, or such other
two month (or 60-day period) as shall be agreed upon by husband and wife with two
months prior notice by either. The husband shall also have the absolute right of visitation with respect to Christmas and Easter in alternating years.
When visitation occurs in Italy and until the child is 16 years of age, the wife shall
accompany [the child] who will live with his father. At the husband's absolute and
unreviewable discretion, the wife may live with the child during the 2-month period of
visitation throughout the year; however, the wife shall have the right to find and live at
her own apartment at her expense.... When [the child] shall become 16 years of age,
he shall be able to travel alone and can go to Italy to visit his father who will pay for his
international travel and his stay.
When visitation occurs in the USA, the husband may reside in the basement
apartment at the wife's house at 34 Read Street, Tuckahoe, NY, at his discretion and
rent free.
After the Separation Agreement was signed by both parties, Respondent returned to
Italy with the child. Respondent testified that her trip to Italy was undertaken as an
attempt at reconciliation with Petitioner, but that she was only willing to make the
attempt because she had the protection of the Separation Agreement. Respondent also testified that, regardless of the reconciliation attempt, she never intended to have the child attend primary school in Italy and that she always planned to live with the child in New York once he was in kindergarten. Respondent spent most of the summer of 2009 in Scario, and, after a brief stay in New York, Respondent returned to Scario in November 2009 and the child began attending nursery school there. At the end of 2009, Respondent purchased a small cottage in the hills outside Scario for 30,000 Euros. Respondent testified that she purchased the house because the Separation Agreement required her to bring the child to Scario each summer for two months for Petitioner's visitation.
In 2010, Respondent and the child spent the vast majority of the year in Scario, but
periodically made trips to New York. In September 2010, Respondent
became pregnant yet again, but miscarried shortly thereafter. Around this time, the parties were arguing frequently, and in November 2010, Respondent took the child back to New York with the intention of not returning to Italy.
In late December 2010, Petitioner visited Respondent in New York and the parties agreed to make another attempt at reconciliation. Respondent and the child returned to Italy with Petitioner on January 10, 2011. Over the next several months, however, the parties' relationship became tumultuous once again and, in August 2011, Respondent returned to New York with the child, where they remained. Respondent enrolled the child at Good Counsel Academy in White Plains and initiated a divorce proceeding in Westchester County.
Petitioner initiated this action on October 12, 2011, by filing a writ of habeas corpus in Supreme Court, Bronx County, pursuant to the Hague Convention and the International Child Abduction Remedies Act. On October 19, 2011, Respondent removed the action to the District Court.
The District Court found that Petitioner failed to demonstrate by a preponderance of the evidence that Italy, rather than New York, was the child's habitual residence. It observed that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child's habitual residence pursuant to the Hague Convention: First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent. Gitter, 396 F.3d at 134.
The Court found that the Separation Agreement, pursuant to which the parties
agreed that Respondent would have custody of the child, live with the child in New York, and send the child to school in New York, constituted the last shared intent of the
parties. The terms of the Separation Agreement were consistent with the nature of the
parties' relationship leading up to the execution of the document. From the time the
parties met in 2005, they engaged in a "bi-continental" relationship in which
"[Respondent] would live in New York, [Petitioner] would live in Italy, and [the parties]
would go back and forth. If anything, the parties' actions prior to the Separation Agreement suggest that Petitioner-and not Respondent- was open to relocating permanently.
Petitioner argued that, even if the Separation Agreement represented the
intent of the parties at the time it was executed, the parties' subsequent actions demonstrate a changed shared intent that the child should be raised in Italy. Petitioner testified that, after the agreement was signed and Respondent went with the child to visit Petitioner in Italy, the parties "started to live as if the agreement had never existed." Petitioner, for example, testified that Respondent made no effort to enforce the child support provisions of the Separation Agreement. Indeed, according to Petitioner:
Petitioner testified that, after this purported reconciliation, the parties developed a new "mutually shared opinion that [the child] would start the ... first five years of primary school and the following three years of middle school" in Italy before moving to the United States to continue his secondary education. With respect to this assertion, the Court found that Petitioner's testimony was not credible. Moreover, it was belied by the other evidence presented at trial. On the other hand, Respondent's conduct following the execution of the Separation Agreement, when viewed as a whole, was thoroughly consistent with her stated intention to educate the child in New York once it became time to enroll him in kindergarten. Despite the parties' apparently sincere attempts at reconciliation, the evidence demonstrated that Respondent never contemplated spending her life in Italy or having the child attend Italian schools following preschool.
Moreover, the evidence demonstrates that Respondent retained her New York real
estate-another fact consistent with her stated intention to have the child attend school
in New York. Additionally, and of particular significance, Respondent repeatedly refused to register the parties' marriage in Italy, which would have entitled her to state funded health insurance while there. The Court's finding that New York was the child's place of habitual residence was consistent with recent Second Circuit case law on this issue. Gitter, 396 F.3d at 128; Poliero v. Centenaro, 373 F. App'x 102 (2d Cir.2010)
The Court found that taken as a whole, the evidence presented that Respondent did not intend to make Italy the child's habitual residence was more compelling than that cited by the Gitter and Poliero courts. First, and most significantly, the parties documented their shared intention in a Separation Agreement, which expressly contemplated that the child would live and attend school in New York with Respondent. Second, Respondent testified credibly that, after executing the Separation Agreement, her willingness to attempt a reconciliation in Italy was clearly premised on the understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement. Third, the evidence suggested that, even if the parties were to reconcile, Respondent still intended to send the child to kindergarten in New York. Finally, even during Respondent's time in Italy following the Separation Agreement, Respondent retained numerous connections to New York. Respondent maintained real estate and a law practice in New York. Additionally, she had only a New York drivers license and bank account. Respondent also kept the majority of her possessions in New York, including furniture, books, and clothing.
Neither Respondent nor the child had Italian passports and, on every trip to Italy, entered as tourists on 90-day visas. Thus, the evidence overwhelmingly demonstrated that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence.
Tuesday, January 3, 2012
Lutman v Lutman, 2010 WL 3398985 (M.D.Pa.) [Israel] [Well Settled in New Environment]
In Lutman v Lutman, 2010 WL 3398985 (M.D.Pa.) on July 21, 2010, petitioner Pnina Lutman (mother) filed a petition for the return of minor child D.L., her nine-year-old son, pursuant to the Hague Convention. Pnina claimed that respondent Eyal Lutman (father), D.L.'s father, has wrongfully retained D.L. in the United States, away from D.L.'s habitual residence in Israel. The district court granted the petition.
Pnina and Eyal were married in 1986 in Israel, and their first child, a daughter named Hadar, was born in 1988. In 1989, Pnina and Eyal, who were both dual citizens of the United States and Israel, moved to Kansas. Another daughter, Meirav, was born in Kansas in 1990. In 1996, the family returned to Israel. Approximately four years later, they relocated to California. D.L. was born in California on April 10, 2001. The parties' entered into a marital separation agreement on June 22, 2005, and a California state court finalized their divorce on September 9, 2005. Pnina and Eyal also obtained a divorce decree from a Rabbinical Court in California, and they obtained a decision from a Rabbinical Court in Israel, acknowledging the California Rabbinical Court's decision. As a part of their divorce, their written separation agreement resolved the issue of custody of their children, by providing for joint legal and physical custody. The agreement stated that D.L. "shall primarily reside" with Pnina and that his older sisters "shall primarily reside" with Eyal. The custody provisions also forbid either parent from moving outside of Orange County, California, without further order of the court or written permission from the other party. Despite this provision, Pnina returned to Israel with D.L. and Meirav in 2005, shortly after the divorce. Eyal encouraged Pnina, D.L ., and Meirav to return to Pnina's family in Israel and he paid for their airfare. As a result of a change in his work assignments, undertaken at his request, Eyal also returned to Israel a few months later with Hadar. The California separation agreement provided that the parties agreed "to meet and confer regarding any necessary changes in their parenting plan" in the event that one of them moved, and that, if they could not negotiate a new agreement, they would "mediate the issue, equally sharing in the cost of the mediation." In order to reflect the change in their circumstances the parties voluntarily appeared before the Rabbinical Court of Haifa in Israel in 2007, which affirmed that D.L. is or will be in his mother's custody in Israel.
Eyal left Israel in 2007 and relocated to Ohio. Pnina encouraged D.L.'s relationship and regular contact with Eyal, not only during Eyal's residence in Israel, but also after Eyal returned to the United States. When Eyal invited his children to visit during their vacation in the summer of 2008, Pnina agreed to facilitate their visit.
Pnina was exercising her custody rights under the Rabbinical Court decree at
the time she sent D.L., with arrangements of a round trip ticket, to the United States for
this visit with his father. And she expected D.L.'s return on August 29, 2008, the date of
Meirav's and D.L.'s return flight to Israel. On August 29, 2008, only Meirav returned to
Israel, and Eyal retained D.L. in his custody. Eyal did not have Pnina's consent to retain
D.L. in the United States, and he acted unilaterally to retain D.L. This was a last-minute, emotional decision by Eyal to violate the terms of the custody decree of the Rabbinical Court of Haifa. D.L. has never returned to Israel since the summer of 2008, despite Pnina's efforts to have him returned.
In May of 2009, Eyal and D.L. moved to Red Lion, in Pennsylvania. Pnina visited D.L. in Red Lion for approximately four weeks in August 2009, in an attempt to secure his return informally. Eyal initially permitted Pnina to stay in his residence during her visit in the United States. However, Pnina testified that Eyal became jealous of D.L.'s reunion with his mother and feared that D.L. would ask to return to Israel with Pnina. In order to prevent such an occurrence, Eyal contacted authorities and alleged that Pnina had sexually abused D.L. Authorities conducted a brief, fruitless investigation of the allegations of child abuse, which concluded with an "unfounded" finding. The district court found that Eyal's accusation was baseless. At the conclusion of the investigation, financial constraints required Pnina to return to Israel, and she returned without D.L. and without resolution of D.L.'s custody. Pnina continued to seek D.L.'s return, and she diligently pursued her rights under the Convention. She initially contacted authorities on the Hague Convention and began completing paperwork in August of 2009. In October of 2009, she commenced official proceedings under the Hague Convention, and she requested pro bono legal representation from the Legal Assistance Coordinator (the "LAC") in the U.S. Central Authority for the Hague Convention, which is the U.S. Department of State. It was not until March of 2010 that Pnina successfully retained a pro bono attorney. Pnina filed a petition pursuant to the Hague Convention.
D.L. was nine years old. D.L. departed from Israel on July 15, 2008, and his return flight was scheduled for August 29, 2008. Thus, the date of the allegedly wrongful retention is August 29, 2008. The record was clear that Eyal's retention of D.L. in the United States violated Pnina's custody rights. The Rabbinical Court of Haifa formally adjusted D.L.'s primary physical custody to his mother in Israel. Pnina was clearly exercising her custody rights at the time of D.L.'s retention in the United States. The court noted that even a minimal exercise of custody rights will satisfy this requirement. "Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights." Tsui, 499 F.3d at 277. Finally, the evidence support the conclusion that Israel was D.L.'s habitual residence immediately prior to his retention in the United States. According to the Third Circuit, "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder, 63 F.3d 217, 224. The Third Circuit has observed that "a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Under this standard, Israel qualified as D.L.'s habitual residence. Even though D.L. was physically present in the United States for slightly more than a month immediately prior to his retention, there was no evidence that D.L. had sufficient time to acclimate to life in the United States. Nor did the evidence indicate that D.L. would have perceived a "degree of settled purpose" in his father's Ohio home. D.L.'s trip to Ohio was intended as nothing more than a temporary summer vacation with his father. Hence, the United States did not become D.L's habitual residence prior to his retention.
Eyal alleged that Pnina consented to D.L.'s removal; that Pnina acquiesced in Eyal's retention of D.L.; and that Pnina failed to initiate proceedings under the Convention within one year of the retention, and that D.L. is well-settled in his current location.
Eyal argued that the court should infer consent to retention by virtue of Pnina's
willingness to send D.L. to the United States. The petition did not allege D.L.'s wrongful removal from Israel-rather, it complained that D .L. was wrongfully retained in the United States. D.L. went to Ohio with a round-trip ticket to return on August 29, 2008. There was no evidence that Pnina agreed that Eyal could retain D.L. in the United States after August 29, 2008. According to Eyal, "[t]he record is devoid of any evidence" that Pnina made efforts to secure D.L.'s return to Israel. He contended that Pnina failed to pursue any 11 custodial rights from August 29, 2008, until her visit to the United States in the summer of 2009. The record did not support this argument. To the contrary, Pnina's testimony was replete with evidence of her attempts to secure D.L.'s return: she never agreed to relinquish custody; during phone calls, she begged Eyal to return D.L.; and she searched (albeit unsuccessfully) for a lawyer in Israel. All of the evidence demonstrated that Pnina never acquiesced to Eyal's retention of D.L., and, therefore, the court rejects this affirmative defense.
The court noted that Pnina commenced proceedings under the Hague Convention in October of 2009, more than a year after the wrongful retention of D.L. on August 29, 2008. Eyal attempted to show that D.L. was well-settled in his current location, but his efforts were only been partially successful. In analyzing the applicability of the well-settled defense to a particular case, courts should look for "substantial evidence of the child's significant connections to the new country[,]" Castillo v. Castillo, 597 F.Supp.2d 432, 437-38 (D.Del.2009), and "consider any relevant factor informative of the child's connection with his or her living environment.". Considering all of the relevant factors together, the court could not find, by a preponderance of the evidence, that D.L. was well-settled. D.L. acclimated well to his studies during his one full year of elementary school in Red Lion, Pennsylvania. D.L.'s native language is Hebrew, but he was approaching fluency in English. His third grade teacher testified that D.L. assimilated into the classroom and that she observed appropriate academic progress and social interaction during the school year. D.L.'s elementary school experience weighed in favor of a finding that he was well-settled. However, there was sparse evidence that D.L. was settled with respect to the other factors that the court must consider in its analysis, including the child's age, stability in the child's residence, the child's participation in extracurricular or community activities, the presence of friends or relatives in the area, and the respondent's employment and financial position. Eyal presented limited evidence on each of these factors, but the evidence did not demonstrate that D.L. had a significant connection to the community where he currently lived. During the period of his wrongful retention in the United States, he resided in three different locations and attended three different schools. Although D.L. had connected with a handful of acquaintances and peers since that time, the network of friends surrounding him was limited. With respect to family and relatives, there was no doubt that he had far more connections in Israel. The record did not reflect that D.L. or Eyal established connections to any church or synagogue, engaged in any extracurricular activities or other community involvement in central Pennsylvania. There was no evidence of family relations in the area, with the exception of occasional visits by Hadar. D.L. has had several nannies, the most recent of which was
retained approximately one month ago. D.L. appeared to spend a considerable amount
of time watching television and playing video games. The court concluded that D.L. was not well-settled in his current location, and found that Eyal failed to prove that any of the exceptions listed in Article 13 of the convention apply to this case.
The court observed that Eyal had engaged in behavior that was manipulative
and otherwise contravenes the purposes of the Hague Convention, and that he should not be rewarded for such behavior. At the last minute, Eyal unilaterally decided not to return D.L. to Israel, and he has confirmed his intent to keep D.L. in the United States permanently, with no regard for Pnina's custody rights. Eyal brought a baseless complaint of sexual abuse to authorities during Pnina's visit in Red Lion, in a desperate attempt to maintain control of D.L.'s custody. Eyal's improper conduct also compeled the court to exercise its discretion to return D.L. to Israel.
Pnina and Eyal were married in 1986 in Israel, and their first child, a daughter named Hadar, was born in 1988. In 1989, Pnina and Eyal, who were both dual citizens of the United States and Israel, moved to Kansas. Another daughter, Meirav, was born in Kansas in 1990. In 1996, the family returned to Israel. Approximately four years later, they relocated to California. D.L. was born in California on April 10, 2001. The parties' entered into a marital separation agreement on June 22, 2005, and a California state court finalized their divorce on September 9, 2005. Pnina and Eyal also obtained a divorce decree from a Rabbinical Court in California, and they obtained a decision from a Rabbinical Court in Israel, acknowledging the California Rabbinical Court's decision. As a part of their divorce, their written separation agreement resolved the issue of custody of their children, by providing for joint legal and physical custody. The agreement stated that D.L. "shall primarily reside" with Pnina and that his older sisters "shall primarily reside" with Eyal. The custody provisions also forbid either parent from moving outside of Orange County, California, without further order of the court or written permission from the other party. Despite this provision, Pnina returned to Israel with D.L. and Meirav in 2005, shortly after the divorce. Eyal encouraged Pnina, D.L ., and Meirav to return to Pnina's family in Israel and he paid for their airfare. As a result of a change in his work assignments, undertaken at his request, Eyal also returned to Israel a few months later with Hadar. The California separation agreement provided that the parties agreed "to meet and confer regarding any necessary changes in their parenting plan" in the event that one of them moved, and that, if they could not negotiate a new agreement, they would "mediate the issue, equally sharing in the cost of the mediation." In order to reflect the change in their circumstances the parties voluntarily appeared before the Rabbinical Court of Haifa in Israel in 2007, which affirmed that D.L. is or will be in his mother's custody in Israel.
Eyal left Israel in 2007 and relocated to Ohio. Pnina encouraged D.L.'s relationship and regular contact with Eyal, not only during Eyal's residence in Israel, but also after Eyal returned to the United States. When Eyal invited his children to visit during their vacation in the summer of 2008, Pnina agreed to facilitate their visit.
Pnina was exercising her custody rights under the Rabbinical Court decree at
the time she sent D.L., with arrangements of a round trip ticket, to the United States for
this visit with his father. And she expected D.L.'s return on August 29, 2008, the date of
Meirav's and D.L.'s return flight to Israel. On August 29, 2008, only Meirav returned to
Israel, and Eyal retained D.L. in his custody. Eyal did not have Pnina's consent to retain
D.L. in the United States, and he acted unilaterally to retain D.L. This was a last-minute, emotional decision by Eyal to violate the terms of the custody decree of the Rabbinical Court of Haifa. D.L. has never returned to Israel since the summer of 2008, despite Pnina's efforts to have him returned.
In May of 2009, Eyal and D.L. moved to Red Lion, in Pennsylvania. Pnina visited D.L. in Red Lion for approximately four weeks in August 2009, in an attempt to secure his return informally. Eyal initially permitted Pnina to stay in his residence during her visit in the United States. However, Pnina testified that Eyal became jealous of D.L.'s reunion with his mother and feared that D.L. would ask to return to Israel with Pnina. In order to prevent such an occurrence, Eyal contacted authorities and alleged that Pnina had sexually abused D.L. Authorities conducted a brief, fruitless investigation of the allegations of child abuse, which concluded with an "unfounded" finding. The district court found that Eyal's accusation was baseless. At the conclusion of the investigation, financial constraints required Pnina to return to Israel, and she returned without D.L. and without resolution of D.L.'s custody. Pnina continued to seek D.L.'s return, and she diligently pursued her rights under the Convention. She initially contacted authorities on the Hague Convention and began completing paperwork in August of 2009. In October of 2009, she commenced official proceedings under the Hague Convention, and she requested pro bono legal representation from the Legal Assistance Coordinator (the "LAC") in the U.S. Central Authority for the Hague Convention, which is the U.S. Department of State. It was not until March of 2010 that Pnina successfully retained a pro bono attorney. Pnina filed a petition pursuant to the Hague Convention.
D.L. was nine years old. D.L. departed from Israel on July 15, 2008, and his return flight was scheduled for August 29, 2008. Thus, the date of the allegedly wrongful retention is August 29, 2008. The record was clear that Eyal's retention of D.L. in the United States violated Pnina's custody rights. The Rabbinical Court of Haifa formally adjusted D.L.'s primary physical custody to his mother in Israel. Pnina was clearly exercising her custody rights at the time of D.L.'s retention in the United States. The court noted that even a minimal exercise of custody rights will satisfy this requirement. "Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights." Tsui, 499 F.3d at 277. Finally, the evidence support the conclusion that Israel was D.L.'s habitual residence immediately prior to his retention in the United States. According to the Third Circuit, "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder, 63 F.3d 217, 224. The Third Circuit has observed that "a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Under this standard, Israel qualified as D.L.'s habitual residence. Even though D.L. was physically present in the United States for slightly more than a month immediately prior to his retention, there was no evidence that D.L. had sufficient time to acclimate to life in the United States. Nor did the evidence indicate that D.L. would have perceived a "degree of settled purpose" in his father's Ohio home. D.L.'s trip to Ohio was intended as nothing more than a temporary summer vacation with his father. Hence, the United States did not become D.L's habitual residence prior to his retention.
Eyal alleged that Pnina consented to D.L.'s removal; that Pnina acquiesced in Eyal's retention of D.L.; and that Pnina failed to initiate proceedings under the Convention within one year of the retention, and that D.L. is well-settled in his current location.
Eyal argued that the court should infer consent to retention by virtue of Pnina's
willingness to send D.L. to the United States. The petition did not allege D.L.'s wrongful removal from Israel-rather, it complained that D .L. was wrongfully retained in the United States. D.L. went to Ohio with a round-trip ticket to return on August 29, 2008. There was no evidence that Pnina agreed that Eyal could retain D.L. in the United States after August 29, 2008. According to Eyal, "[t]he record is devoid of any evidence" that Pnina made efforts to secure D.L.'s return to Israel. He contended that Pnina failed to pursue any 11 custodial rights from August 29, 2008, until her visit to the United States in the summer of 2009. The record did not support this argument. To the contrary, Pnina's testimony was replete with evidence of her attempts to secure D.L.'s return: she never agreed to relinquish custody; during phone calls, she begged Eyal to return D.L.; and she searched (albeit unsuccessfully) for a lawyer in Israel. All of the evidence demonstrated that Pnina never acquiesced to Eyal's retention of D.L., and, therefore, the court rejects this affirmative defense.
The court noted that Pnina commenced proceedings under the Hague Convention in October of 2009, more than a year after the wrongful retention of D.L. on August 29, 2008. Eyal attempted to show that D.L. was well-settled in his current location, but his efforts were only been partially successful. In analyzing the applicability of the well-settled defense to a particular case, courts should look for "substantial evidence of the child's significant connections to the new country[,]" Castillo v. Castillo, 597 F.Supp.2d 432, 437-38 (D.Del.2009), and "consider any relevant factor informative of the child's connection with his or her living environment.". Considering all of the relevant factors together, the court could not find, by a preponderance of the evidence, that D.L. was well-settled. D.L. acclimated well to his studies during his one full year of elementary school in Red Lion, Pennsylvania. D.L.'s native language is Hebrew, but he was approaching fluency in English. His third grade teacher testified that D.L. assimilated into the classroom and that she observed appropriate academic progress and social interaction during the school year. D.L.'s elementary school experience weighed in favor of a finding that he was well-settled. However, there was sparse evidence that D.L. was settled with respect to the other factors that the court must consider in its analysis, including the child's age, stability in the child's residence, the child's participation in extracurricular or community activities, the presence of friends or relatives in the area, and the respondent's employment and financial position. Eyal presented limited evidence on each of these factors, but the evidence did not demonstrate that D.L. had a significant connection to the community where he currently lived. During the period of his wrongful retention in the United States, he resided in three different locations and attended three different schools. Although D.L. had connected with a handful of acquaintances and peers since that time, the network of friends surrounding him was limited. With respect to family and relatives, there was no doubt that he had far more connections in Israel. The record did not reflect that D.L. or Eyal established connections to any church or synagogue, engaged in any extracurricular activities or other community involvement in central Pennsylvania. There was no evidence of family relations in the area, with the exception of occasional visits by Hadar. D.L. has had several nannies, the most recent of which was
retained approximately one month ago. D.L. appeared to spend a considerable amount
of time watching television and playing video games. The court concluded that D.L. was not well-settled in his current location, and found that Eyal failed to prove that any of the exceptions listed in Article 13 of the convention apply to this case.
The court observed that Eyal had engaged in behavior that was manipulative
and otherwise contravenes the purposes of the Hague Convention, and that he should not be rewarded for such behavior. At the last minute, Eyal unilaterally decided not to return D.L. to Israel, and he has confirmed his intent to keep D.L. in the United States permanently, with no regard for Pnina's custody rights. Eyal brought a baseless complaint of sexual abuse to authorities during Pnina's visit in Red Lion, in a desperate attempt to maintain control of D.L.'s custody. Eyal's improper conduct also compeled the court to exercise its discretion to return D.L. to Israel.
Thursday, December 29, 2011
Leser v Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) [Czech Republic] [Federal & State Judicial Remedies]
In Leser v Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) Respondent Alena Berridge relocated to Denver, Colorado from the Czech Republic with her two children. Subsequently, Petitioner Max Joseph Leser, Respondent's ex-husband and father of the children, filed a petition in the United States District Court seeking return of the children to the Czech Republic pursuant to the Hague Convention and ICARA. The district court held a hearing on the petition, at which it addressed Respondent's motion to continue. Respondent filed the motion to continue in response to a summons for the children to attend a custody hearing in the Czech court on March 24, 2011. Respondent indicated that the Czech court at the March hearing intended to rule on Petitioner's and Respondent's cross motions for "custody rights," "contact rights," and "the right to determine residence ." The district court asked respondent: "[Y]our position with regard to this ICARA action is that it is the Czech court that should make this determination and [you are] willing to take the children back to [the Czech Republic] so that indeed that determination can be made. Is that correct?"Respondent answered affirmatively. Petitioner also agreed that the Czech court was the court where all custody issues should be heard, including whether Respondent had the right to relocate the children to the United States. The district court asked Respondent if she planned to attend the March hearing in the Czech Republic. Respondent stated she would attend if Homeland Security would allow her to leave the United States without adverse effect to her visa status. Before pronouncing its decision, the district court stated it did not believe the real issue before the court was whether Respondent had wrongfully removed her children to the United States. Rather, the district court believed the issues to be which court, the Czech court or United States court, should interpret the custody orders and determine whether Respondent violated those custody orders. Because both parents agreed the Czech court was the appropriate court to hear these issues, the district court, pursuant to the stipulation and without objection, ordered the children returned to the Czech Republic for the March 24, 2011 hearing. The district court made no finding as to wrongful removal as required by the Hague Convention. Rather than granting Respondent's motion to continue, however, the court asked the parties to submit a proposed order setting forth the court's ruling. Respondent agreed to prepare the order and stated she could submit it to Petitioner the next day. But because the parties could not agree to the wording of a proposed order, both Respondent and Petitioner filed separate proposed orders with the court. The court then drafted and entered an order granting the petition for return of the children based not on wrongful removal, but on the parties' stipulation that the children would be present for the hearing in the Czech Republic: “ The Respondent represents that the children will be present for the hearing.... Given the parties' stipulation, there was no disputed issue for this Court to determine. Accordingly, pursuant to the authority of the Court under 42 U.S.C.
11603(a), it is ordered that (1) The Petition (# 1) is granted. (2) Respondent Alena
Berridge f/k/a Alena Leserova shall return the minor children, [M.L. and O.L.], to the
jurisdiction of the Czech Republic within such time as is necessary to participate in the
Czech court's hearing on March 24, 2011. The children shall remain within the
jurisdiction of such court until directed or authorized otherwise by such court. The
return of the children shall be expeditiously reported to the appropriate Central
Authority.”
Respondent appealed. Once the children arrived in the Czech Republic, the Czech courts seized the children's passports and issued new custody orders. The Tenth Circuit dismissed the appeal as moot. On appeal, Respondent asserted the district court order was ultra vires because the district court lacked jurisdiction to grant the petition. Respondent contended ICARA authorizes United States district courts "to order the return of a child to the country of habitual residence upon a finding of wrongful removal." According to Respondent, "the [district] court lacked jurisdiction to order anything" without a finding of wrongful removal. Thus, Respondent argued the district court erred when it ordered the children to attend and participate in legal proceedings in the Czech Republic despite the fact she agreed to it. Although Respondent acknowledged the district court did not make an explicit finding of wrongful removal of the children, at oral argument Respondent asserted that in granting the petition, the district court implicitly found wrongful removal and that such a finding was clear error based on the existing Czech custody orders.
The Tenth Circuit observed that Article III of the Constitution limits a federal court's jurisdiction to "cases and controversies." Its duty is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions. It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. A case or controversy no longer exists when it is impossible to grant any effectual relief. In this appeal, Respondent requested that the court reverse the district court order and dismiss the petition for return of children, or in the alternative, remand to the district court to hold an evidentiary hearing on the issue of wrongful removal. In discussing mootness at oral argument, Respondent criticized the district court order for "granting" the petition for return of children without a finding of wrongful removal. In making that argument, Respondent attacked the merits of the district court order. The Court held that because it could not offer Respondent any relief, it could not decide whether the district court erred in ordering Respondent to return the children to the country of habitual residence without a finding of wrongful removal, where the parents stipulated that the children would return to the Czech Republic for the hearing. The district court's order, entitled "Order for Return of Children," clearly articulated the court's belief that no disputed issues existed because of the stipulation to return the children. After "granting" the petition, the court ordered Respondent to return the children to the Czech Republic to participate in the custody hearing. The order also stated the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court." Furthermore, the district court's language that the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court" was not contrary to the parties' stipulation. Respondent expressed concern that, without reversal of the district court order, she would be in violation of the district court order if she returned to the United States with the children. The Court believed Respondent misread the district court order. Because ICARA empowers United States courts "to determine only rights under the Convention and not the merits of any underlying child custody claims," the Czech court has jurisdiction to decide custody issues-including jurisdiction to restrict the children's travel by seizing their passports. If the Czech court determines to return the children's passports and Respondent returns to the United States with the children, it envisioned no scenario where she would be in violation of the district court order. And if the children subsequently returned to the United States, Petitioner may file a second petition for the return of children if he believes such removal to the United States to be wrongful without being subject to either issue preclusion or claim preclusion. Because it concluded that the district court made no finding as to wrongful removal and because it found no language in the district court order preventing the children from returning to
the United States upon return of their passports, any ruling on the merits "would have
no effect in the world we now inhabit but would serve only to satisfy the curiosity of the
litigants about a world that once was and is no more." Wyoming, 587 F.3d at 1253. Thus, given the unique circumstances of this case, it concluded that this action was moot. Accordingly, the appeal was dismissed as moot, the district court opinion was
vacated, and the action was remanded to the district court with instructions to
dismiss the petition for lack of subject matter jurisdiction.
11603(a), it is ordered that (1) The Petition (# 1) is granted. (2) Respondent Alena
Berridge f/k/a Alena Leserova shall return the minor children, [M.L. and O.L.], to the
jurisdiction of the Czech Republic within such time as is necessary to participate in the
Czech court's hearing on March 24, 2011. The children shall remain within the
jurisdiction of such court until directed or authorized otherwise by such court. The
return of the children shall be expeditiously reported to the appropriate Central
Authority.”
Respondent appealed. Once the children arrived in the Czech Republic, the Czech courts seized the children's passports and issued new custody orders. The Tenth Circuit dismissed the appeal as moot. On appeal, Respondent asserted the district court order was ultra vires because the district court lacked jurisdiction to grant the petition. Respondent contended ICARA authorizes United States district courts "to order the return of a child to the country of habitual residence upon a finding of wrongful removal." According to Respondent, "the [district] court lacked jurisdiction to order anything" without a finding of wrongful removal. Thus, Respondent argued the district court erred when it ordered the children to attend and participate in legal proceedings in the Czech Republic despite the fact she agreed to it. Although Respondent acknowledged the district court did not make an explicit finding of wrongful removal of the children, at oral argument Respondent asserted that in granting the petition, the district court implicitly found wrongful removal and that such a finding was clear error based on the existing Czech custody orders.
The Tenth Circuit observed that Article III of the Constitution limits a federal court's jurisdiction to "cases and controversies." Its duty is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions. It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. A case or controversy no longer exists when it is impossible to grant any effectual relief. In this appeal, Respondent requested that the court reverse the district court order and dismiss the petition for return of children, or in the alternative, remand to the district court to hold an evidentiary hearing on the issue of wrongful removal. In discussing mootness at oral argument, Respondent criticized the district court order for "granting" the petition for return of children without a finding of wrongful removal. In making that argument, Respondent attacked the merits of the district court order. The Court held that because it could not offer Respondent any relief, it could not decide whether the district court erred in ordering Respondent to return the children to the country of habitual residence without a finding of wrongful removal, where the parents stipulated that the children would return to the Czech Republic for the hearing. The district court's order, entitled "Order for Return of Children," clearly articulated the court's belief that no disputed issues existed because of the stipulation to return the children. After "granting" the petition, the court ordered Respondent to return the children to the Czech Republic to participate in the custody hearing. The order also stated the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court." Furthermore, the district court's language that the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court" was not contrary to the parties' stipulation. Respondent expressed concern that, without reversal of the district court order, she would be in violation of the district court order if she returned to the United States with the children. The Court believed Respondent misread the district court order. Because ICARA empowers United States courts "to determine only rights under the Convention and not the merits of any underlying child custody claims," the Czech court has jurisdiction to decide custody issues-including jurisdiction to restrict the children's travel by seizing their passports. If the Czech court determines to return the children's passports and Respondent returns to the United States with the children, it envisioned no scenario where she would be in violation of the district court order. And if the children subsequently returned to the United States, Petitioner may file a second petition for the return of children if he believes such removal to the United States to be wrongful without being subject to either issue preclusion or claim preclusion. Because it concluded that the district court made no finding as to wrongful removal and because it found no language in the district court order preventing the children from returning to
the United States upon return of their passports, any ruling on the merits "would have
no effect in the world we now inhabit but would serve only to satisfy the curiosity of the
litigants about a world that once was and is no more." Wyoming, 587 F.3d at 1253. Thus, given the unique circumstances of this case, it concluded that this action was moot. Accordingly, the appeal was dismissed as moot, the district court opinion was
vacated, and the action was remanded to the district court with instructions to
dismiss the petition for lack of subject matter jurisdiction.
Rowe v Vargason, 2011 WL 6151523 (D.Minn.) [Australia] [Federal and State Judicial Remedies]
In Rowe v Vargason, 2011 WL 6151523 (D.Minn.) the Respondent moved for a stay pending appeal. The district court noted that it may stay enforcement of a judgment while an appeal is pending pursuant to Fed.R.Civ.P. 62(c) if the following factors support such a stay: "(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The party seeking such a stay has a difficult burden. Haimdas v.. Haimdas, 720 F.Supp.2d 183,210 (E.D.N.Y.2010) (citing United States v. Private Sanitation Indus. Ass'n, 44 F.3d 1082, 1084 (2d Cir.1994)). The most important factor is the likelihood of success on the merits. Brady v. National Football League, 640 F.3d 785, 789 (8th Cir.2011). The Court found that the proper standard is a strong showing of success on the merits or substantial case on the merits, as set forth in the Hilton decision. The court analyzed the factors and denied the motion.
It found, inter alia, that the Respondent had not made a substantial case on the merits and rejected her argument that a conflict of law exists as to whether evidence of abuse of the mother is sufficient to establish the Article 13(b) defense. The Court disagreed that a conflict of law exists in the circuit courts of appeal as to the relevance of evidence concerning abuse of the mother in determining whether a grave risk of harm exists as to the child. The cases cited by Respondent on this issue applied the same standard as the Eighth Circuit. See Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000); In re Adan, 437 F.3d 381 (3d Cir.2006); Simcox v. Simcox, 511 F.3d 594, 608-09 (6th Cir.2007); Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2005). The applicable standard in the Eighth Circuit, and in the cases cited above, is whether Respondent demonstrated, by clear and convincing evidence, that there exists a grave risk that the child would be exposed to harm if returned to Australia. Accordingly, the argument that a conflict of law existed had no merit.
It found, inter alia, that the Respondent had not made a substantial case on the merits and rejected her argument that a conflict of law exists as to whether evidence of abuse of the mother is sufficient to establish the Article 13(b) defense. The Court disagreed that a conflict of law exists in the circuit courts of appeal as to the relevance of evidence concerning abuse of the mother in determining whether a grave risk of harm exists as to the child. The cases cited by Respondent on this issue applied the same standard as the Eighth Circuit. See Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000); In re Adan, 437 F.3d 381 (3d Cir.2006); Simcox v. Simcox, 511 F.3d 594, 608-09 (6th Cir.2007); Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2005). The applicable standard in the Eighth Circuit, and in the cases cited above, is whether Respondent demonstrated, by clear and convincing evidence, that there exists a grave risk that the child would be exposed to harm if returned to Australia. Accordingly, the argument that a conflict of law existed had no merit.
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