De Souza v Negri, 2014 WL 7330770 (D. Mass) [Brazil] [Grave Risk of Harm] [Petition Granted]

In De Souza v Negri, 2014 WL 7330770 (D. Mass) on October 7, 2014, de Souza filed an emergency petition for the return of his five-year-old son, G.N.S., to Brazil. G.N.S. was the son of de Souza and Negri. They never married, but lived together and were in a relationship when G.N.S. was born in Brazil on January 20, 2009. According to de Souza, de Souza and Negri separated when G.N.S. was nine months old.  Negri testified that de Souza struck her when she was three months pregnant with G.N.S. and, from that point forward during their relationship, he was abusive toward her. Negri also claimed that when G.N.S. was around three years old, she left the child in de Souza’s care while she went to the pharmacy and that when she returned she noticed bumps and bruises on G.N.S.’s legs. When she inquired about what happened, Negri claimed that de Souza told her that it was her responsibility to take care of the child, not his, because he had no patience. Negri also claimed that de Souza became more aggressive toward her and that she called the police on one occasion. According to her account, after the police returned de Souza to his house, a short time later he returned and assaulted her.. Negri also claimed that the child, G.N.S., observed de Souza assaulting her. Although she never filed for a protective order from de Souza in Brazil, in October 2014 she sought asylum here, on the basis of this abuse. De Souza still lived in Águia Branca.  Negri lived in the same city. Both parents played a role in his care and upbringing. While at de Souza’s, G.N.S. lived with his father, his father’s parents and two sisters. While de Souza was working, de Souza’s mother would take care of him and G.N.S. would be in the care of de Souza’s aunt after school.. De Souza denied hitting G.N.S. or ever physically disciplining the child. De Souza’s aunt, who helped care for G.N .S., never observed any abuse or violence by de Souza. 

         The district court found that De Souza never gave Negri permission to remove G.N.S. from Brazil,. On or about December 11, 2013, Negri took G.N.S. after school one day and first went to another part of Brazil, Curitiba. Negri’s return was expected on January 24, 2014, but she did not return, and instead traveled to the United States. De Souza never gave Negri permission to travel with G.N.S. to the United States or, once here, to remain here. Once in the United States, de Souza had limited contact with G.N.S., having spoken to him only two or three times since his arrival here. 

The district court found that G.N.S.’s place of habitual residence was Brazil. The child was born in Brazil and both his parents, who had custody of him, lived there in separate districts in Águia Branca until Negri brought him to this country. Moreover, G.N.S.’s removal from his habitual residence, without the consent of his father, de Souza, was in violation of de Souza’s custody rights. There was no serious dispute that both parents, Negri and de Souza had custodial rights over G.N.S. The Court found that de Souza was exercising his custodial rights at the time that Negri removed their child from Brazil. The Court credited the testimony that de Souza gave no consent to G.N.S.’s removal and that de Souza was exercising his custodial rights as evidenced by his regular care of the child in Brazil The Court also credited de Souza’s testimony that he did not give consent to Negri to remove G.N.S. from Brazil to the United States. This lack of consent was corroborated by the nature of Negri’s removal of the child, without advance notice to de Souza, and also by the fact that Negri traveled to the U.S. with G.N.S. under a passport that was not in his name. The court concluded that de Souza had shown, by a preponderance of the evidence, that Negri’s removal of G.N.S. from Brazil was wrongful.

The Court found that Respondents had not satisfied their burden of proving, by clear and convincing evidence, either an Article 13 or 20 defense. Addressing the issue of grave risk of harm, the Court concluded that the Respondents had failed to show credible evidence that G.N.S. was in grave risk of harm if he is returned to Brazil. The only proffered evidence offered regarding any risk of harm to G.N.S. was the testimony of Negri, his mother and one of the Respondents. She alleged that G.N.S. observed de Souza’s abuse of her and that, on one occasion, when he was a few months old, she returned to find G.N.S. with bruises and bumps and that de Souza had expressed frustration with caring for the child in her absence. She had no corroboration of this allegation. Her husband, Sinoura, testified that he had observed bruises on G.N.S., but did not provide a time frame for these observations and noted that he did not know how these bruises got there.  There was credible and unrebutted evidence suggesting that G.N.S. has shown no signs of abuse. Whatever the state of de Souza and Negri’s relationship may have become, Respondents did not show that G.N.S., who spent a fair amount of time in the custody of de Souza and de Souza’s relatives before his removal from Brazil, was in grave risk of harm.

Similarly, the Respondents  failed to meet their burden of proving an Article 20 defense that returning G.N.S. to Brazil would violate fundamental principles relating to the protection of human rights and fundamental freedoms. This defense requires a similarly high burden, which is appropriate  where the Article 20 proffer arises out of the same nucleus of facts (i.e., that it would be inhumane to return G.N.S. where he has been subject to abuse by de Souza and witness to abuse of his mother by de Souza).  Moreover, although Negri filed for asylum here on largely the same basis, (i.e., alleged abuse by de Souza), she did so, not when she first arrived in the United States with G.N.S. in January 2014, but soon after de Souza initiated this Hague Convention case. Accordingly, the petition for return was granted.

Velasquez v Velasquez, 2014 WL 7272934 (E.D.Va.) [El Salvador] [Provisional Remedies] [Temporary Restraining order]

In Velasquez v Velasquez, 2014 WL 7272934 (E.D.Va.) on December 11, 2014, the Father filed a Verified Complaint and Petition fo a final judgment returning Father's children to El Salvador.  On December 15, 2014, the Court held an expedited ex parte hearing. After the hearing the District Court found that on March 3, 2006, Father and Respondent Maria Teresa Funes De Velasquez were married in El Salvador. Two daughters were the product of this marital union: seven-year-old  M.D.F. born in 2007, and five-year-old M.A.F. born in 2009. The family resided in El Salvador, where the daughters attended school.  On November 18, 2013, Father, Mother, and the daughters traveled from El Salvador to Maryland with a scheduled return date of January 25, 2014.  On February 27, 2014, Mother advised she was not returning to El Salvador but instead remaining in the United States with the two daughters. In response, Father eventually left the scene and returned to El Salvador without Mother and his two daughters. Father left to avoid further altercation but he did not give his consent for the daughters to stay with Mother in the United States.   Since then, Father attempted to persuade Mother to return the daughters to El Salvador, but learned that Mother wanted to stay in the United States because of a new boyfriend and had no intent to return the daughters to El Salvador. Father later traveled to the United States on three separate occasions to persuade Mother to allow the daughters to return with him to El Salvador, but Mother refused, and remained, with no legal status, in the United States with the daughters and her boyfriend in Manassas, Virginia.

The district court observed that "provisional measures" under 22 U.S.C. 9004 are analogous to a temporary restraining order. Rule 65(b) of the Federal Rules of Civil Procedure governs temporary restraining orders. A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 20 (2008).  After analyzing the four factors the court found that provisional measures were  necessary and would therefore enter a Temporary Restraining Order prohibiting the removal of the children from Virginia. The Court also granted Father's request for a Preliminary Injunction hearing to determine  whether the TRO should remain in effect until final disposition, and the Court set this hearing for a date certain. However, the Court would not consolidate the preliminary injunction hearing with the final trial on the merits, absent consent from Mother. See Alcala, 2014 WL  5506739, at *3 ("The Court anticipated that the Mother will require a reasonable amount of time to prepare for the hearing and retain counsel if desired.").  The court denied the Father’s request to issue "a warrant seeking immediate physical custody of the Children, directing any United States Marshal[ ] or other law enforcement officer to bring the Children before this Court." It pointed out that  "No court exercising jurisdiction of an action brought under ... this title may, under subsection (a) of this section, order a child removed from a person having physical control of  the child unless the applicable requirements of State law are satisfied."22 U.S.C. §9004(b). Under Va.Code § 20-146.32(A), Father may request that the Court "issue an ex parte order that the child be taken into immediate physical custody if the child is imminently likely to suffer serious physical harm or be removed from this Commonwealth."  This extraordinary request is typically only granted by federal courts when a custody determination  has already been made, or when a custody order was already in effect. See  Alcala, 2014 WL 5506739, at *8.  As was the case in Alcala, here, there was no prior custody determination and no custody order was in effect; Father implicitly acknowledged, based on his argument under El Salvadorian law, that both  parents shared joint custody of the daughters. Moreover, there was no specific allegation in the Verified Complaint and Petition, or Petitioner's Brief, that the daughters were "imminently likely to suffer serious physical harm or be removed from this Commonwealth." Mere speculation is an insufficient basis for this Court to order the physical seizure of two minor children. Therefore, the Court denied Father's request to issue a warrant for physical custody of the daughters.

Rehder v Rehder, 2014 WL 6982530 ( W.D. Wash) [Germany] [Habitual Residence] [Rights of Custody] [Petition granted]

In Rehder v Rehder, 2014 WL 6982530 ( W.D. Wash) the Court granted Frank Rehder's petition for return of his son, ARDR, to Germany.  Frank Rehder and Tanya Rehder met in England in 2007.  Shortly after they started dating, Frank informed Tanya that in 2003 he had entered into an illegitimate marriage with a woman named Shuang Mu. Although still married to Shuang, he assured Tanya that he was in the process of obtaining a divorce.  In April of 2008 Tanya decided to move to New York City to attend acting school. Frank followed her there in May of 2008. Frank showed Tanya what he represented to be divorce papers evidencing the end of his marriage to Shuang.  Frank then proposed to Tanya and they married in New York City on May 19, 2008.   In February 2009, Frank and Tanya moved back to England. Both parties concede that they argued frequently.  Despite their discord, they conceived a child and decided to continue living and working together in England through August 2010.  One month prior to the birth of their child, the couple moved to Leer, Germany to live with Frank's mother.  Their son, ARDR, was born on September 10, 2010 in Germany.  ARDR lived in Germany from the date of his birth until he was removed by his mother to Bellingham, Washington. On July 13, 2013, in a heated exchange over Google Chat, Frank had told Tanya to “use my card and f–––ing go to America and never come back.”  A few days later, on July 18, 2013, he had sent her an email stating “Please respect that I will no further contact anymore. If [ARDR] will get older he will find a letter at my moms house why I cannot re-live [my other son's] story again in my life and decided this way. I will care for him, but it better ends with a big pain than keeps going on with pain and no end.”The email goes on to discuss Frank's poor health and the allocation of insurance money in the event of his death.  
About a month after these communications, on August 19, 2013, Tanya and ARDR boarded a plane headed for Bellingham, Washington. Frank had knowledge of their departure. He gave Tanya permission to use his credit card to purchase the tickets and he drove her and the child to the airport. The parties disputed whether this was a permanent move: Tanya claimed that it was permanent and Frank consented to it, while Frank claimed it was a “relationship break” and that he allowed his son to go with his mother temporarily, until he and Tanya could work things out. 
After arriving in Washington, in September 2013, the child began attending school and also began receiving health benefits. Tanya informed the school that she and the child had planned to return to Germany for three weeks in November 2013, but that they would come back to Washington in December. Tanya also informed the school that Frank eventually planned to join them in Washington. Emails exchanged between Tanya and Frank show that Tanya wished to stay in Washington, but that the couple was trying to work on their relationship. In October 2013, the couple applied for and began receiving benefits for their child from the German government.  In connection with this application, Tanya indicated to the German government that she was at least a part-time resident of Germany.  On November 16, 2013, Tanya and the child returned to Germany.  They stayed with Frank and it appeared that the couple mended their relationship during this period.  On December 5, 2013, Tanya and the child returned to Washington. On December 11, 2013, Tanya emailed Frank and stated “I do love and care for you and miss you and do feel it's right to move forward together.”She also indicated that she was looking into IT jobs and gyms for him here in Washington. On December 16, 2013, Tanya emailed Frank again and stated “I do want to be together with you ... I do also miss you and love you very much” and that their son “misses you tons.” She also advised the child's school that “things went really well in Germany,” that Frank planned to join them in Washington, and that she and the child might be traveling again to Europe in February or March of 2014. Frank flew to Washington on December 31, 2013. He stayed with Tanya and their child until January 11, 2014.  During this trip, Frank signed a form that allowed Tanya to travel with their child between Washington and Canada. After returning to Germany, Frank continued to engage in Skype calls with Tanya and his son. However, towards the end of January 2014, the couple's relationship soured yet again. It became clear that Frank would not be joining them in Washington and that Tanya had no intent of returning to Germany or returning their child to Germany.  On February 5, 2014, Frank sent an email to the child's school informing the administration that he has shared custody and that his child was being wrongfully retained by Tanya in the United States.  On February 19, 2014, Frank emailed Tanya and expressly stated that he never consented to their son staying in Washington permanently. In March, 2014, Frank attended a parent-teacher conference call relating to his son's schooling. On April 8, 2014, Frank attempted to visit his son in Washington, but was stopped at the Canadian border. The border police contacted Tanya and she claimed that Frank was abusive. On May 16, 2014, Tanya filed a petition for invalidity of marriage in Whatcom County and as part of that case sought a custody determination regarding ARDR.  
On August 13, 2014, Frank filed his Hague petition with this court.

  The district court found that Germany was the child’s habitual residence. ARDR was born in Germany, his father's native country, and lived there from the date of his birth, September 10, 2010, until at least August 2013. His day-to-day activities for the majority of his life, therefore, occurred in Germany, not the United States. 

The court rejected Respondents argument that  Frank consented to or acquiesced in a change of the child's habitual residence to the United States. Where a child already has a well-established habitual residence, simple consent to his presence in another forum is not usually enough to shift it there. Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration. Although Frank made statements such as “use my card and f–––ing go to America and never come back” and “please respect that I will no further contact anymore,” it appeared that these statements were made in fits of anger and not meant literally. Based upon the court's review of the parties' multiple email communications, Google chats and personal declarations, both mother and father appeared to have a penchant for the dramatic. More importantly, the parties' conduct revealed that there was no mutual settled intent to abandon Germany as the child's habitual residence. The parties continued to communicate after Tanya and the child's initial departure to Washington in August 2013 and they appeared to be working on their relationship. Although the child started school in Washington and began receiving health benefits here, he also began receiving benefits in Germany as well. He was registered as at least a part-time German resident until May 2014. Tanya and the child returned to Germany in November 2013 and stayed with Frank for three weeks. Frank then visited them in Washington the following month. The extensive communications between the mother and father, as well as communications with the child's school, revealed that there was some question as to whether ARDR would withdraw from school and return to Europe or whether Frank would attempt to join them here in Washington.  It was not until late January 2014, that it became clear that Tanya intended to stay here indefinitely and that she intended to keep her son here as well. Thus, the court found that Frank did not consent to or acquiesce in a change in the child's habitual residence. The Court observed that to establish a “right of custody” under German law, the petitioner must show that he was married to the child's mother at the time of the child's birth. See German Civil Code § 1626a. Otherwise, he must meet one of the elements of the German Civil Code regarding “parental custody of parents who are not married to one another..German Civil Code § 1626a. The Court found, based on expert testimony, that petitioner failed to present any evidence that he had satisfied any of these alternative methods of obtaining custody rights. The Court found that  German law treats a bigamous marriage as effective until it is dissolved by a court decision. Once it is dissolved, the effect is ex nunc (i.e., moving forward). The experts opinion was that “German law would therefore treat the 2nd marriage as an effective marriage. The child would be regarded as a legitimate child born within the marriage.”  Additionally, the expert stated that the invalidity of the marriage under New York law would not impact her conclusion. She explained that even if New York law considered bigamous marriages as absolutely void ab initio, German law would still “recognize and give effect to such a marriage with regard to the child custody issue, although the marriage itself would be considered to be void ab initio Based upon this testimony the court found that Frank Rehder had “rights of custody” under German law.

  The evidence showed that Frank agreed to allow the child to reside in this forum while he and Tanya worked on their relationship. His signature on a form allowing Tanya to travel with the child across the Canadian border did not change this conclusion. The need for his permission suggested the opposite—that he had custody rights and was exercising them. The evidence showed that the parties had discussed settling together in Washington, returning to Germany, or possibly settling in the UK. As long as these communications were ongoing, Tanya's retention of ARDR in this forum was not “wrongful.”  It became wrongful in late January 2014, when she announced, in derogation of Frank's shared custody rights (including his right to participate in decisions regarding the child's residence and upbringing) that she would remain in Washington with ARDR. Friedrich II held that if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.Friedrich II, 78 F.3d at 1066. Once a court determines that the parent exercised custody rights in any manner, the court should stop—completely avoiding the question whether the parent exercised the custody rights well or badly. Here, the evidence did not show a “clear and unequivocal” abandonment of the child. To the contrary, it appeared that Frank Rehder had made efforts to maintain a relationship with his son and exercised his custody rights as soon as it became clear that Tanya intended to dissolve her relationship with Frank and to keep ARDR in Washington indefinitely. 

Marquez v Castillo, 2014 WL 6883134 ( M.D. Florida) [Mexico] [Habitual Residence]

In Marquez v Castillo, 2014 WL 6883134 ( M.D. Florida) Petitioner and Respondent married in Cuba on or about April 6, 2012. Respondent and J.V.O. moved to Mexico to live with Petitioner on or about December 5, 2012. Respondent requested that Petitioner file the appropriate papers for her to bring her other two children to live in Mexico. Petitioner, Respondent, and J.V.O. lived together in Petitioner's family home until October 2013. J.V.O. spent ten months in Mexico living with Petitioner and Respondent prior to arriving in the United States. On or about October 4, 2013, Respondent left Mexico with J.V.O. without warning to or knowledge of Petitioner. Several days later, the parties began communicating by email. However, the communication stopped and Petitioner has not seen J.V.O. since Respondent removed him from Mexico. Petitioner was J.V.O.'s natural father. Petitioner was born in Mexico, lived in Mexico for his entire life, and was a Mexican citizen. Respondent was J.V.O.'s natural mother. Respondent was born in Cuba and was a Cuban citizen. Respondent lived in Cuba until she moved to Mexico. Her current address was in Tampa, Florida.

The district court found that J.V.O. was habitually resident in Mexico at the time of his removal adopting the methodology of  Seaman v. Peterson, 762 F.Supp.2d 1363, 1377 (M.D.Ga.2011)aff'd,766 F.3d 1252 (11th Cir.2014). First, the Court had to determine “[w]hether there [was] a settled intention to abandon a prior habitual residence....”Ruiz v. Tenorio, 392 F.3d 1247, 1252–53 (11th Cir.2004). Courts recognize that where the situation involves a very young child, the shared intent of the parents in determining the residence of their child is of primary concern. The Court was satisfied that Respondent had a settled purpose to abandon Cuba as her and the child's primary residence and to reside permanently in Mexico with Petitioner and the minor child. Respondent presented evidence that she maintained a home in her name in Cuba; the minor child resided in Cuba for over a year prior to arriving in Mexico; and she had two minor children in Cuba. However, the Respondent did agree that she began the process to have her other minor children move to Mexico, that she intended to live with Petitioner in Mexico as a family with J.V.O., and that the Petitioner began construction of additional space in his home to accommodate her other minor children. She also insisted that she wanted to find work while in Mexico. The Court next found there was “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized  J.V.O. lived in Mexico for approximately ten months with Petitioner, Respondent and Petitioner's extended family. Respondent was his primary caretaker. The child was not registered in school and he traveled to Cuba on a few occasions with Respondent to visit family. Nonetheless, Respondent did not dispute that it was her overall intention to live with Petitioner in Mexico as a family, in spite of her trips to Cuba. The Court found that J.V.O.'s country of habitual residence, prior to his removal to the United States, was Mexico. Mexico was the last country where the parties intended to reside together with the child. Further, when Respondent traveled from Cuba to Mexico, she intended to bring her other children to Mexico to live with her and Petitioner. Respondent also came to Mexico intending to obtain work. The Court determined that petitioner had rights of custody under the laws Mexico. The court examined whether the rights conferred on the petitioner by the doctrine of patria potestas are rights of custody and found that under the  the Civil Code of the State of Mexico Petitioner established that he had a custody right to J.V.O. by operation of law under the doctrine of patria potestas. The Court found that Petitioner had custody rights to J.V.O. at the time of removal and that the Respondent's removal of J.V.O. from Mexico to the United States was in violation of Petitioner's custody rights under Mexican law.  It also determined that he exercised his custody rights at the time of the removal. Consequently, Respondent's removal was “wrongful.”  

Respondent asserted that there was a grave risk of physical or psychological harm to J.V.O. if he was returned to Mexico. She asserted that she feared for her life if she returned to Mexico, that the Petitioner's residence was in a dangerous neighborhood with active drug activity, one of his nephews was a drug addict who consumes drugs outside of the home, and that Petitioner was very controlling and would not allow her to leave the home without an escort. The Court observed that this defense requires the alleged physical or psychological harm to be “a great deal more than minimal.” Only severe potential harm to the child will support this defense. The harm must be greater than what is normally expected when taking a child away from one parent and passing the child to another parent.  The court found that petitioner did not establish this defense and granted the petition. 

Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.) [ New Zealand] [Federal & State Judicial Remedies] {Expert Testimony]

In Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.)   Petitioner Anthony Stead, a citizen of New Zealand, seeks the return of A.C.S., the son of petitioner and respondent.   Respondent raised the affirmative defense that returning A.C.S. to New Zealand would result in grave risk of either physical or psychological harm or would otherwise place A.C.S. in an intolerable situation.  Petitioner filed his motion before respondent had designated an expert witness for the evidentiary hearing.   He did so based on respondent's stated intention,  to introduce expert testimony.   On November 24, 2014, respondent filed a witness list identifying Dr. Andrew Loizeaux,  presumably to provide expert testimony as to the psychological effects of returning A.C.S. to New Zealand. 

The District Court observed that Rule 702 of the Federal Rules of Evidence provides that:  A witness who is qualified as an expert by knowledge, skill, experience,  training, or education may testify in the form of an opinion or otherwise if:  (a) the expert's scientific, technical, or other specialized knowledge will help  the trier of fact to  understand the evidence or to determine a fact in issue;  (b) the testimony is based on sufficient facts or data;  (c) the testimony is  the product of  reliable principles and methods;  and (d) the expert has reliably  applied the principles and methods to the facts of the case. Petitioner did not contest the reliability of a potential expert opinion, only its relevance.   Relevance in the Rule 702 context is determined by Rule 401, which defines relevant evidence as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action."   The analysis of relevance under Rule 401 requires a court to undertake two inquiries.   The first is a procedural question which derives from Rule 401's identification of "evidence having any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence."  This inquiry focuses on "whether the evidence is probative or factually relevant  to the proposition asserted."   Sims v. Great Am. Life Ins. Co., 469 F.3d 870,  881 (10th Cir. 2006).   The second inquiry, whether the evidence is "of consequence to the determination of the action," asks the substantive question of whether the proposition for which the evidence is offered is properly provable in the case.   To assess the relevance of proffered expert testimony, the Court must "look at the logical  relationship between the evidence proffered and the material issue that evidence is supposed  to support to determine if it advances the purpose of aiding the trier of fact."   Bitler, 400 F.3d at 1234.

The Court pointed out that Petitioner's motion sought to prohibit respondent "from unnecessarily increasing the expense and burden of this litigation by introducing irrelevant expert reports and testimony.  The Sixth Circuit has indicated that a grave risk of harm can only exist in two situations.   See Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).   "First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.g., returning the child to a zone of war, famine, or disease.   Second, there is a grave risk of harm  in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in  the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.   Psychological evidence ... is only relevant if it helps prove the existence of one or these two situations."  While the Tenth Circuit has not explicitly adopted the standard outlined in Friedrich, it has noted that the grave risk exception imposes a  "strict demand" on the party claiming it and that " '[g]rave risk' means the 'potential harm to  the child must be severe, and the level of risk
and danger very high.' "   West v. Dobrev, 735 F.3d 921, 931 (10th Cir.  2013)
(citing  Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).  

Respondent argued that expert testimony on the impact of relocation to New Zealand is  necessary for the Court to evaluate her argument that the relocation presents an "aggregation of adjustment issues" that will result in grave psychological harm to A.C.S.   These issues include:  "(1)  a fundamental poverty commensurate with moving to another country without a home or job prospects or any likelihood of financial support for A.C.S.;  (2) an absentee father who has no  ability or intention to participate in raising A.C.S.;  (3) a situation where the Parties will be  unable to meet A.C.S.'s basic needs;  and (4) familial circumstances that are harmful to A.C.S."     Petitioner responds that none of the issues that respondent identifies are relevant to or even permissibly considered in the Court's analysis of the grave risk exception. 

    The Court found that the parties' finances and familial circumstances-the first, third, and fourth  issues raised by respondent-are irrelevant to the Court's determination of whether relocation poses a grave risk of harm to A.C.S., and that expert testimony as to the psychological effects of those circumstances is therefore irrelevant.   As petitioner points out, the State Department's analysis of the grave risk exception specifically forecloses consideration of the parties' financial situation upon relocation.   Public Notice 957, 51 Fed.Reg. 10494, 10510 (Mar. 26, 1986);  see also Krefter v. Wills, 623 F.Supp.2d 125, 136-37 (D.Mass.2009) ("a mere shortage of money is not, on its own, sufficient to establish an 'intolerable situation ' ");   Cook v. Scott,
2008 WL 2947692 at *5 (E.D.Mich. July 31, 2008) ("an 'intolerable situation' does not 
encompass return to a home where money is in short supply").

    As to respondent's claim that "familial circumstances that are harmful to A.C.S." are relevant  to the grave risk exception, the Court found that any evaluation of "familial circumstances"  would concern A.C.S.'s best interests, not respondent's affirmative defense.   While the Court has no doubt that poverty and lack of familial support place developmental stresses on children, and that an expert may testify that those  stresses have psychological effects, the Court's role in a petition filed under the Convention is not to determine the best situation for the child.  The Convention does not invite or empower the Court to discriminate against petitioners on the basis of wealth or familial ties. For the Court to hold that a petitioning parent's poverty or relative lack of family support rises  to the level of an intolerable situation would expand the grave risk exception beyond its intended narrow scope of protecting children from
a high risk of grave harm.   See 51 Fed.Reg. at 10510 (noting that the risk to  the
child must be "grave, not merely serious" for the exception to apply). The financial and familial issues respondent identified went  to the merits of the underlying custody dispute and did not rise to the level of a high risk of grave psychological harm.

  Respondent also argued that the Court should consider all of the factors that may present a  risk of psychological harm or otherwise create an intolerable
situation in the aggregate.  In support of this  approach, respondent cites Didur v. Viger, 392 F.Supp.2d 1268, 1273 (D.Kan.2005), rev'd and remanded on other grounds, 197 Fed.Appx. 749, 753 (10th Cir. 2006).  Didur, however, concerned  substantially different facts than this case and does not support respondent's argument that  expert testimony into the totality of circumstances of A.C.S.'s return to New Zealand is relevant.  Didur considered the aggregated effect of independent characteristics of the petitioning parent that contributed to an overall atmosphere of abuse and neglect, including depression, alcoholism, sexual abuse, and "inability to adjust."    The  Didur court found that while no individual issue identified would satisfy the grave risk exception, "in conjunction with all the other factors, they become legally significant."    In Didur, each issue  considered was independently relevant to determine the petitioner's "repeated neglect of [the child] and her emotional instability as a parent,", and aggregation simply assisted the court in determining whether that abuse and neglect rose to the level of a grave risk of harm.   Here, by contrast, respondent sought to use aggregation to bootstrap areas of inquiry that would not otherwise be relevant to the Court's analysis. Accepting respondent's approach would expand the scope of the grave risk exception in a  manner not contemplated by Didur.

    Because financial and familial circumstances were not relevant to application of the grave risk  exception, the Court  granted plaintiff's motion to exclude expert testimony on the  psychological effects of those circumstances.

The Court turned to the final issue that respondent  claimed required expert testimony:  petitioner's involvement in A.C.S.'s life.   Respondent characterizes petitioner as "an absentee father who has no ability or intention to participate in raising A.C.S.,"  and said that  petitioner has not had "any role in A.C.S.'s life since at least May 2013."  Petitioner noted that May 2013 was shortly after  respondent and A.C.S. traveled to the United States from New Zealand, and that giving any weight to criticism of petitioner's involvement with A.C.S. after respondent brought A.C.S. to the United  States against petitioner's will would be rewarding respondent for the unlawful retention.  The Court found that respondent had not met her burden of showing that expert testimony was  relevant to the Court's determination of whether the grave risk exception applies in this case.   In support of the proposed expert testimony, respondent offered only that petitioner had been an absentee parent since the time respondent brought A.C.S. to the United States.   Respondent provided no details as to why petitioner's relative lack of involvement in A.C.S.'s life from afar reflected an inability or unwillingness to care for A.C.S. in New Zealand.   Nor had respondent identified any circumstances that could lead the Court to conclude that  petitioner's lack of involvement in A.C.S.'s life since May 2013 created a risk of "serious abuse or  neglect" upon return to New Zealand or that the courts of New Zealand were "incapable or  unwilling to give the child adequate protection."   Moreover, respondent gave no indication of what her proposed expert would say as to the psychological risk to A.C.S. of relocation to New  Zealand beyond vague references to the parties' respective financial and family situations.   Given the absence of detail about the proposed testimony, the Court was unable to determine what, if any, weight to give it, and granted the motion.

Pliego v Hayes, 2014 WL 6796537 (W.D.Ky.) [Spain] [Federal & State Judicial Remedies] [Summary Judgment]

In Pliego v Hayes, 2014 WL 6796537 (W.D.Ky.)  Amanda Leigh Hayes and Mario Luis Gonzales Pliego were married on July 11, 2009 in Spain. Their child, ALG, was born in 2011 and is three years old. Hayes was a citizen of the United States, and Pliego is a citizen of Spain. Hayes has filed for divorce and custody in Kentucky, while Pliego has filed for divorce and custody in Spain. Pliego is a career diplomat at the Spanish Embassy and as such, the family has lived in different countries during ALG's lifetime. They lived in Jakarta, Indonesia until July 2012 when they moved to Ankara, Turkey. Pliego was currently still living in Ankara. Hayes and Pliego agreed that Hayes and ALG would travel to Kentucky to visit extended family on April 6, 2014. The date of return was to be May 4, 2014. Instead, Hayes told Pliego that she would not be returning and intended to keep ALG with her in Kentucky. Currently, Hayes and ALG were residing in Kentucky pending resolution of this action, subject to agreed conditions.

   Hayes moved for summary judgment, arguing that Spain was not ALG's habitual
residence. She alleged that ALG was born in Kentucky and had never
lived in Spain, spending a total of 46 days there over a series of four trips. She
noted that the Convention seeks to remedy situations where the victim of an
abduction"suffers the sudden upsetting of his stability, the traumatic loss of
contact with the parent who has been in charge of his upbringing, the uncertainty
and frustration which comes from the necessity to adapt to a strange language,
unfamiliar cultural conditions, and unknown teachers and relatives."  She stated that "the child's remaining with his mother, who has been his primary care provider since his birth, in the United States will not result in the manifestation of these concerns, but an order of return to Spain would do so in this case." In response, Petitioner noted that his "burden at trial is only to show that the child's habitual residence is a contacting country to the Hague Convention, not a specific country, i.e. Spain." Additionally, he argued that there were multiple genuine issues of material fact in dispute regarding ALG's habitual residence, any one of which precluded summary judgment.


The Court found that there were multiple genuine disputes of material fact
regarding ALG's habitual residence, and that it would be inappropriate to resolve
these matters on summary judgment at this time. Thus, this motion was denied.

Singh v Pierpont, 2014 WL 6471374 (D. Hawaii)[Canada] [Federal & State Judicial Remedies] [Res Judicata]

In Singh v Pierpont, 2014 WL 6471374 (D. Hawaii) Singh and Pierpont were married on March 12, 2010. They were living in Honolulu, Hawaii at the time, and Singh was a musician with the Honolulu Symphony. W.R.P. was born in Hawaii‘i in July 2010. Singh auditioned for and was offered a position in the Winnipeg Symphony. In September 2010, the family moved to Winnipeg, Canada, where they lived in a rental property.  In August 2011, while the family was in Hawaii‘i, Pierpont served Singh with divorce papers. Pierpont filed the divorce action in the State of Hawaii‘i Family Court of the First Circuit. Pierpont filed a pre-decree motion seeking temporary sole legal and sole physical custody of W.R.P. Hawaii Family Court Judge Paul T. Murakami orally awarded Singh temporary sole physical custody and ordered joint legal custody. The ruling allowed Singh to return to Winnipeg with W.R.P., subject to certain conditions. On February 4, 2013, Hawai‘i Family Court Judge Na‘unanikinau Kamalii issued the Decree Granting Absolute Divorce and Awarding Child Custody.  Judge Kamalii, inter alia, awarded Singh sole physical custody, subject to Pierpont’s right to reasonable visitation. The Divorce Decree stated: Hague Convention, Jurisdiction and Venue.The court finds that the child [sic] habitual residence for the purposes of the Hague Convention on International Child Abduction is the United States of America. Neither party shall have the ability to change the habitual residence of the child without the written consent of the other in the form of a stipulated order or further order of the court, and no action of either parent other than entering into a stipulated written order adopted by this court as an order shall suffice to establish consent to or acquiescence in a change of the child’s habitual residence in any other nation. It is the intention of the court that the habitual residence shall remain in the United States of America and that any foreign travel to or stay in any foreign country shall be temporary in nature and not result in a change of habitual residence. Hawaii will also retain child custody modification jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), so long as the child or at least one of the parties resides in Hawaii and venue shall remain in Honolulu, so long as at least one parent resides in Honolulu.

Pierpont filed a number of post-decree motions. Singh was represented by counsel at the hearing, but Singh herself did not appear. Judge Souza found her in default. After hearing testimony from Pierpont, receiving exhibits from both parties, and hearing counsel’s arguments, Judge Souza orally made findings that there had been a material change in W.R.P.’s circumstances and that it was in W.R.P.’s best interest to award sole physical custody to Pierpont, effective thirty days from the date of the hearing. The 4/4/14 Hawai‘i Order memorialized Judge Souza’s oral findings and orders at the March 12, 2014 hearing. Judge Souza found that he had continuing exclusive jurisdiction to make custody and visitation orders regarding W.R.P., pursuant to the UCCJEA, Haw.Rev.Stat. § 583–202, because the Hawai‘i Family Court issued the last order regarding custody and visitation, and Pierpont resided in Hawai‘i since that time.  The 4/4/14 Hawai‘i Order stated that, if Singh failed to return W.R.P. to the City and County of Honolulu on or before April 12, 2014,  then [Pierpont] shall be entitled to go to his residence in Winnipeg, Canada, or wherever else the child may be found, and take possession of him. In that regard, the Royal Canadian Mounted Police, the Winnipeg Police Service, and any other law enforcement officer or agency wheresoever located, are authorized, requested and directed to assist [Pierpont] to safely and securely regain immediate possession of the child.... 

On April 4, 2014, Singh filed an Application Under: The Child Custody Enforcement Act in the Queen’s Bench (Family Division), Winnipeg Centre (“the Canada Family Court”), seeking an order granting her primary care and control of W.R.P. On April 11, 2014, the Canada Family Court held a hearing on the Canada Application. Pierpont did not appear at the hearing, but he was represented by counsel. On May 6, 2014, the Canada Family Court filed an Interim Order granting Singh interim custody of W.R.P. and ordering that he remain in Winnipeg, in the Province of Manitoba, until further order of the court . On May 5, 2014, after an April 16, 2014 proceeding during which Pierpont appeared by telephone, the Canada Family Court signed an Interim Order stating that Pierpont was to have care and control of W.R.P. from May 5, 2014 at 5:00 p.m. until May 21, 2014 at 7:00 p.m., except for certain overnight periods specified in the order. Pierpont’s counsel signed the order, approving its form and content. Pierpont took W.R.P. from Canada to Hawai‘i in May 2014.  W.R.P. had been living with Singh in Canada until that time. W.R.P. had remained with Pierpont in Hawai‘i since May.

Pierpont moved to dismiss or for summary judgment. In his motion, Pierpont argued that he was entitled to dismissal of, or in the alternative, summary judgment because: the divorce decree expressly found that the United States was W.R.P.’s habitual residence; W.R.P.’s habitual residence had never changed since then; and Pierpont’s act of returning W.R.P. to his habitual residence was not a violation of either the Hague Convention or ICARA, regardless of the Canada Family Court’s orders.

  The district court held that as threshold matter, it had to determine where W.R.P.’s habitual residence was at the time Pierpont removed him from Canada. Pierpont emphasized that the Divorce Decree was the only court order that addresses the issue of W.R.P.’s habitual residence, and he argued that the Court must accept Judge Kamalii’s finding that the United States was W.R.P.’s habitual residence under the res judicata, i.e. claim preclusion, doctrine. It observed that the Ninth Circuit, however, has held that ordinary principles of claim and issue preclusion do not apply to claims under ICARA and the Convention. See Holder v. Holder, 305 F.3d 854, 863–64 (9th Cir.2002). It  noted in Holder that 42 U.S.C. § 11603(g)  provides that federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention and ICARA. Gaudin v. Remis, 415 F.3d 1028, 1034 (9th Cir.2005). In this case the Divorce Decree did not order or deny the return of W.R.P., pursuant to the Hague Convention, and there was no evidence in the record that either Singh or Pierpont raised a Hague Convention/ICARA claim during the divorce proceedings. Thus, there was no genuine dispute of material fact regarding whether the Hawai‘i Family Court actually adjudicated a Hague Convention/ICARA claim during the divorce proceedings. The Court concluded that, as a matter of law under Gaudin, it was not bound by the habitual residence finding in the Divorce Decree.

The Court noted that the parties had been disputing where W.R.P. was to reside since the filing of the divorce action. Thus, their last shared, settled intent regarding his residence, if they had one, was formed prior to the filing of the divorce action. This Court finds that the determination of W.R.P.’s habitual residence at the time of removal depended upon the issue of whether, at any point before Pierpont filed for divorce, Singh and Pierpont had a shared, settled intent to abandon their habitual residence in the United States in favor of an indefinite stay in Canada.  In considering Pierpont’s Motion, there was evidence in the record that supported Pierpont and some evidence that supported Singh. The Court noted that it’s ruling on the issue of whether Singh and Pierpont had a shared, settled intent to make Canada the family’s habitual residence may depend upon a credibility determination. Making credibility determinations is inappropriate in a motion for summary judgment. The Court found that there were genuine issues of material fact as to the question of whether, at any time before Pierpont filed for divorce, Singh and Pierpont ever had a shared, settled intent to make Canada the family’s habitual residence. This necessarily meant that there were  genuine issues of material fact as to the question of what W.R.P.’s habitual residence was when Pierpont removed him from Canada. It denied the motion for summary judgment.