Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016)[Mexico] [Habitual Residence][Petition granted]

In Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016) the district court granted the petition of  Javier Flores-Aldape for the return of his child, C.F. to Mexico. The mother, Fatin Shawki Kamash, was a US resident and naturalized citizen. Javier was a Mexican citizen. In February 2011, Javier found a job in Mexico as an aviation engineer. He bought a house in Mexico. Javier and Fatin married in November 2012 in Michigan. The next month, Fatin moved to Querétaro, Mexico on a visitor’s visa. She did not have a job in Mexico. Fatin learned she was pregnant in July 2013. The next month, she returned to the United States in anticipation of an immigration interview scheduled for September 2013.  C.F. was born in Michigan on March 30, 2014. Fatin and C.F. remained in Michigan for four months. In late July 2014, Fatin and C.F. flew to Mexico on round-trip tickets, with a return date in April. Fatin, Javier, and C.F. lived together in the family’s home in Querétaro, and C.F. was baptized in Mexico in August 2014. Later that month, Javier lost his job with General Electric, but the family remained in Mexico, living off Javier’s savings and receiving additional financial support from his parents. Given her young age, C.F. was not enrolled in daycare or any extracurricular activities and had limited interaction with the community beyond her own family. Fatin obtained a Mexican permanent resident card and opened a bank account in her name in Querétaro.  In the spring of 2015, the family celebrated C.F.’s first birthday. Fatin applied and was accepted to the pharmacy program at The University of Findlay in Ohio for the fall 2015 semester. Javier and Fatin’s relationship deteriorated, and they discussed the possibility of divorce. Fatin and C.F. left for Michigan on May 10, 2015. Javier drove them to the airport, and Fatin and Javier parted on good terms. Fatin and C.F. left their winter clothes and many of their other belongings, including C.F.’s toys and crib, in Mexico. Upon her arrival in Michigan, Fatin resumed her part-time tutoring work at Oakland Community College and enrolled C.F. in daycare. Fatin also applied for and received WIC and child care assistance benefits in Michigan. During a phone call in the first week of August, Fatin informed Javier that she and C.F. would not be returning to Querétaro. Javier claimed they agreed the visit to Michigan would last only three months, corresponding with the summer session at Oakland Community College, while Fatin maintained it was indefinite, and she never intended to go back to Mexico. 

On October 7, 2015, Javier filed the Hague Petition. The Court credited Fatin’s testimony that she and Javier desired to eventually create a long-term home in the United States. The Court found the parties did not share a present intention to begin that process with Fatin and C.F.’s May 2015 trip to Michigan. In a June 2015 e-mail Fatin confirmed the trip was meant to be limited in duration. The district court found there was no wrongful removal. Javier consented to C.F. traveling to Michigan with Fatin in May 2015. It became clear Fatin and C.F. were not returning to Mexico in early August 2015. August 5, 2015 was the date of C.F.’s retention. The Court observed that the Sixth Circuit has held “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.” Robert, 507 F.3d at 989 (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). The Sixth Circuit has also held this inquiry “must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich I, 983 F.2d at 1401. A person “can have only one habitual residence,” and “a change in geography and the passage of time” are required to establish a new habitual residence. The Sixth Circuit has repeatedly rejected the subjective intent of the parents as an additional factor in determining the child’s habitual residence. Nevertheless, it has also recognized that parental intent may be a valid consideration in cases involving very young children or children with developmental disabilities. The Court agreed parental intent is an appropriate consideration in cases like these. C.F. was just four months old when she left the United States for Mexico, and fourteen months old when she returned to visit family in Michigan. A child of that age is “too young to form any meaningful connection to a country, its inhabitants, and its locations.” Her experience of the world is limited to the environment created by her parents, and she will likely “acclimatize” quickly to any residence in which her family and daily routines are present, regardless of geographic location. The Court found that although C.F. was born in the United States, the circumstances reflected Fatin and Javier’s settled purpose to make their home -- at least for the foreseeable future -- in Mexico. Javier and Fatin established their marital home in Querétaro soon after their wedding, and they jointly participated in renovating the residence according to their preferences. Javier and Fatin also shared an intention to relocate to the United States someday. But to determine C.F.’s habitual residence, the Court had to look to the parents’ last moment of shared intent. The testimony and other evidence reflected that as of August 2015, Javier and Fatin had not jointly decided to abandon their residence in Mexico and move the family to the United States. Absent an agreed plan to abandon their home in Mexico, C.F.’s temporary visit to the United States during the summer of 2015 could not create a new habitual residence.

Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016)[Germany] [Habitual Residence] [Petition denied]

In Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016) the district court denied the petition filed by Charles Blackledge on July 6, 2016, seeking the return of his minor child (“J.B.”) to Berlin, Germany.   The Petitioner was a citizen of the U.S. The Respondent was a citizen of Ukraine, where the couple were married in  2008, and J.B. was born there on June 26, 2008. The parties resided there until Petitioner obtained employment in Ireland in 2009. They thereafter resided in several European nations for varying periods of time. In June or July 2011, Petitioner began his current position in Germany. Around the same time, Respondent was accepted into graduate school at the University of Pittsburgh. The parties traveled together to Pittsburgh in August 2011, and established a residence for Respondent and J.B. Petitioner remained in Germany to continue his new job. Respondent and J.B. remained in Pittsburgh for two years while Respondent attended graduate school. Respondent and J.B. then returned to Germany in August 2013 to live with Petitioner. Respondent was able to continue her graduate studies remotely. J.B. was enrolled in a primary school , where the child completed kindergarten and first grade during the 2013 – 14 and 2014 – 15 academic years. After approximately two years in Germany, Respondent determined that she would need to return to Pittsburgh to complete her graduate degree. The parties agreed that J.B. would accompany Respondent back to Pittsburgh. Upon their return to Pittsburgh in August 2015, J.B. was enrolled in Colfax for the second grade. Respondent continued her graduate studies and Petitioner continued to work in Germany. Once back in Pittsburgh, the Respondent filed for divorce on April 7, 2016. Petitioner demanded the return of J.B. to Germany.

Petitioner claimed that he and Respondent had a verbal agreement by which J.B. was to accompany Respondent to Pittsburgh for one year while Respondent completed her graduate degree, and after which J.B. would return to Germany.
The Court found that J.B. was retained by Respondent beginning in August 2016. The Court observed that “Habitual residence” is the place in which a child “ ‘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.’ ” Karpenko, 619 F.3d at 263. Habitual residence is a “concept that focuses on past experience, not future intentions.” Karkkainen, 445 F.3d at 294 (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)). To that end, the Court examines a child’s experiences in, and contacts with, his or her place of residence to determine whether he or she is “firmly rooted,” and not merely acculturated. A child’s academics, social engagement, participation in extracurricular activities, and routines are all central to finding acclimatization and a settled purpose. There “must be ‘a sufficient degree of continuity. The credible facts were strongly suggestive of a degree of continuity and settled purpose sufficient for the Court to find that J.B. , who was interviewed in camera, was acclimatized to Pittsburgh. J.B.’s record of academic achievement and engagement at Colfax, significant social contacts, wide ranging extracurricular activities, substantial familiarity with Pittsburgh, its institutions, and its culture, and unequivocally favorable opinion of all the above, demonstrated that J.B. had not only “formed meaningful connections with the people and places [he] encountered” in Pittsburgh, but that his life has attained “ ‘a sufficient degree of continuity to be properly described as settled. That notwithstanding, parental intent is still part of the Court’s inquiry. Evidence of shared intent by the parties – or a lack thereof – can trump evidence of acclimatization, particularly when the child is young. The shared intent of Petitioner and Respondent was far from clear.  The Court found that the beyond agreeing that J.B. would reside with Respondent when she traveled to Pittsburgh for school – as he had in the past – there was no credible evidence of an agreement for a specific duration. A ‘child can lose its habitual attachment to a place even without a parent’s consent’…when ‘the objective facts point unequivocally’ to the conclusion that a child’s relative attachments to two countries have changed.” The credible facts, as found by the Court, clearly indicated that attachments  shifted for J.B. In light of the lack of evidence of an agreement regarding a specific duration for J.B.’s stay in Pittsburgh, as well as the Court’s determination that Respondent exhibited a greater degree of credibility than Petitioner, and given the strong evidence of J.B.’s acclimatization, the Court found J.B.’s habitual residence to be Pittsburgh. Therefore,  Respondent’s retention was not wrongful..

Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) [Panama][Federal & State Judicial Remedies][Temporary Restraining Order]

In Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) Petitioner father filed a Petition for Return of Children To Panama. He claimed that Respondent, the mother of the children, absconded to Florida with their eight-year old twin sons as of March 20, 2013. This was the second time that the Respondent has removed the children to the United States from Panama. Respondent returned the children to Panama only after a United States District Court in the Eastern District of Missouri ordered her to do so in September 2010. Petitioner alleged that the children resided with him in Panama City, Panama, up until February 20, 2013. Petitioner maintained that the delay in bringing this action was a result of the Respondent’s concealment of the children’s location from Petitioner through the use of aliases and frequent relocations across the state. The Court granted a temporary restraining order finding preliminarily that Petitioner would  suffer irreparable harm unless the Order was granted. Given that Respondent again had removed the children from Panama, and refused to return the children from Florida to Panama, there existed a clear risk that Respondent would further secret the children and herself in violation of the Hague Convention, the ICARA, and other applicable law.  The Court preliminarily found that  the allegations established a prima facie claim of wrongful removal under Article 3 of the Hague Convention and that the fact-specific nature of numerous issues necessitated an evidentiary hearing. Nevertheless, at the Temporary Restraining Order stage, the Court found that Petitioner had shown that there is a substantial likelihood of success on the merits given his preliminary establishment of a prima facie case, the prior wrongful removal by Respondent, and the concealment tactics purportedly used by Respondent that would undermine a “well-settled” affirmative defense. In addition, the Court found that the threatened injury outweighed any harm the relief would inflict on Respondent and that that the issuance of the Temporary Restraining Order would l serve the public interest. The Court set a hearing date due to the fact that the Hague Convention provides a six week window for the adjudication of such cases. It required Respondent to produce the children at the hearing. Respondent was prohibited from removing the children from the jurisdiction of the Court pending a hearing on the merits, and further directed that no person acting in concert or participating with Respondent shall take any action to remove the children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition for Return of Children to Panama.

Sadoun v. Guigui, 2016 WL 4444890 ( S.D. Florida, 2016) [France] [Grave Risk of Harm] [Petition denied] [Guardian Ad Litem]

In Sadoun v. Guigui, 2016 WL 4444890 ( S.D. Florida, 2016)  Petitioner and Respondent had 3 children: S.A.E.S., born in 2001, L.E.J.S., born in 2004, and S.L.J.S., born in 2008.  Their eldest daughter was 16 and  not subject to the Convention. The Children were born in Paris and resided there with their parents in the family’s apartment for most of their lives. On June 29, 2015, Respondent and the parties’ four children departed France for the family’s annual trip to their vacation home in Miami Beach, Florida, while Petitioner remained behind in France to attend to his ailing father. Respondent and the Children did not return to Paris on the date they were scheduled to return. The parties stipulated that Petitioner met his burden of presenting a prima facie case of wrongful removal or retention under the Convention. However, the Court found that: (1) Respondent established by clear and convincing evidence that returning the Children to France would expose them to a “grave risk” of physical or psychological harm, and (2) that Respondent  proved by a preponderance of the evidence that S.A.E.S. and L.E.J.S. were of a sufficient age and maturity to permit the Court to appropriately consider their objections to repatriation. 

At trial, the parties’ eldest child, L.L.S., testified that Petitioner drank alcohol every night. Her testimony also revealed that during Petitioner’s drunken tirades, he would call each of the Children “dummy,” tell them they were “really stupid,” and refer to his wife as a “Bitch” or “slut,” which shocked his daughter. Respondent’s sister testified to Petitioner’s increasingly aggressive behavior while drinking and of the verbal onslaughts he unleashed upon his family during these alcohol-infused episodes. She testified “He was already seated with a drink in his hands. As we went on ... the night he kept on drinking and his speech got slurred. Very angry. Very aggressive. He called me a bitch many times in front of the children.” According to Respondent, Petitioner’s belittling of her and the Children was anything but an isolated event. (“[Petitioner’s] verbally abusive. He just recently called me a prostitute in the middle of a wedding in Miami. He is continuously demeaning me. It was terrible.”  According to Petitioner, he was only drunk twice in his life. The Court received a substantial amount of credible testimony that throughout the parties’ seventeen-year marriage, Petitioner exhibited a pattern of coercive behavior towards Respondent that is widely recognized as domestic violence. Respondent’s sister testified that Petitioner isolated Respondent by greatly restricting her ability to travel, unless it was with the parties’ children. Petitioner financially abused Respondent by restricting her access to the couple’s shared financial resources in what appeared to have been an effort to reduce her sense of autonomy. Petitioner directed this pattern of abusive behavior toward his children in a physical manner as well. Muriel Guigui testified that she witnessed instances of Petitioner’s physical abuse of the Children when Petitioner would pull the boys’ ears and drag them to their rooms where he would repeatedly hit them to a point where they screamed out, “[p]lease stop, you’re hurting me.” On one occasion, Muriel entered the room after Petitioner left and found the boys crying with red marks on their bodies where Petitioner had struck them. Respondent convincingly recounted the brutal methods Petitioner frequently employed to “discipline” the children for talking loudly. (“A. He would strike their legs mostly because they were in a protective position. Their arms and legs with the belt. And usually to the head, a lot of times in the head. It’s hard to show proof.”). The Court also received into evidence an audio recording of the parties’ two sons being viciously beaten by Petitioner while the boys unsuccessfully begged for mercy. The Guardian Ad Litem discussed several instances of physical abuse that the Children brought up during their individual interviews. No one could reasonably contend that when Petitioner viciously struck his sixteen-year-old daughter in the head and possibly rendered her unconscious—in front of his seven-year-old daughter —that action was anything short of child abuse. Victims of spousal abuse often do not come forward to report instances of domestic violence for many reasons and, therefore, a lack of near-contemporaneous documentation does not necessarily render a victim’s claims unbelievable. The Court found that Respondent’s credible testimony that Petitioner harmed S.A.E.S and L.E.J.S. as a result of the disproportionate force that Petitioner frequently inflicted on them with either a belt or his hands—whether closed or open—together with Respondent’s unrefuted testimony about Petitioner’s emotional torment and physical abuse of her and L.L.S., “demonstrated a non-negligible probability of [Petitioner] someday physically injuring” the Children. Petitioner’s physical abuse of his children, the overwhelming evidence of psychological abuse of the Children and Respondent—particularly when Petitioner hurls obscene epithets at her in their presence—other indicia of domestic violence, and Petitioner’s reckless disregard for his family’s safety when he drove while intoxicated, led the Court to an obvious conclusion: it would be irresponsible to think the risk to the children less than grave.

Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) [israel] [Habitual Residence] [Petition denied]

In Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) the Petitioner  Father was an Israeli citizen and resided in Israel. The Mother was a citizen of both the United States and Israel. The parties were married in Israel and were the parents of a son, O.N.C., born December 6, 2009 in Israel. The father  had substantial debt and an extensive criminal record in Israel which resulted in a Stay of Exit Order placed on his visa which prohibited him from leaving Israel. Both parties testified that their plan was for Mother to move to the U.S. with O.N.C., find a place to live, enroll O.N.C. in school, and work to help Father pay off the debts which were preventing him from leaving Israel. Father would join them once his debts were paid off and they would live together in St. Louis. According to Mother, they decided to move because their financial situation was difficult and they did not see a future for themselves and their son in Israel. It was Father’s testimony that their intention was to live in the United States for three to five years to save enough money to buy a house in Israel. With the agreement of Father, Mother and O.N.C. traveled to St. Louis, Missouri on December 3, 2012.  Over the next two years, Mother and O.N.C. returned to Israel twice, each time on round-trip tickets.  Mother filed for divorce in St. Louis in July 2014 and on March 13, 2015, she was granted a divorce and sole custody. The father filed his district court complaint on November 25, 2015. The district Court observed that this case turned on whether O.N.C. s habitual residence changed to the United States. It noted that in the Eighth Circuit, factors relevant to the determination of habitual residence include the settled purpose of the move to the new country from the child’s perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.” Stern v. Stern, 639 F.3d 449, 452 (8th Cir. 2011).  Habitual residence is determined by examining “past experience, not future intentions.” Sorenson v. Sorenson, 559 F.3d 871, 873 (8th Cir. 2009) “The ‘settled purpose’ of a family’s move to a new country is a central element of the habitual residence inquiry.” Barzilay, 600 F.3d at 918. However, “settled purpose “need not be to stay in a ... location forever. What is crucial is that the purpose “have a ‘sufficient degree of continuity to be properly described as settled.’ ”  Settled purpose must be from the child’s perspective, although parental intent is also considered. 

The district court found that O.N.C.’s habitual residence had changed to the United States and denied the petition. It found that he had experienced a clear change in geography and a substantial amount of time, over three years, had passed since the move to the United States. The evidence demonstrated that both Mother and Father decided to have O.N.C. reside in the U.S. Settled purpose need not be to stay forever so long as there is a “sufficient degree of continuity to be properly described as settled.”  The last three years and eight months—more than half his life—had been spent in St. Louis, Missouri.. There was ittle evidence in the record concerning O.N.C.’s connections with Israel, while it appeared that O.N.C. had considerable connections with his current environment. He enjoyed a close relationship with his three maternal uncles, and he and Mother found a community with whom they socialized. The Court concluded that as of October 2014, O.N.C. had been in Missouri long enough to have a “sufficient degree of continuity to be properly described as settled” from his perspective, and that the parties intended to relocate to the United States and establish O.N.C.’s residence here. Prior to the move, the parties applied together for approval of O.N.C.’s naturalization application for United States citizenship. It was understood by the parties that Father would not be able to leave Israel until his debts were paid off and the stay order on his visa was lifted. Until then, their intent was always for Mother and O.N.C. to go ahead of Father and settle in the United States. The best evidence of this intent was the actions taken by the parties. Mother and O.N.C. traveled to the U.S. despite the known issues surrounding Father’s visa. Mother secured full-time employment, enrolled O.N.C. in school, bought and registered a car, applied for a Missouri driver’s license, and paid taxes. She eventually rented an apartment for them. The facts demonstrated that Mother was establishing a life here for the family, and for the next two years, the parties continued to act in furtherance of their plan. Not until April of 2014, when the marriage deteriorated, did Father claim the relocation had been intended to be temporary.  The change in geography, passage of time since the move to the United States, O.N.C.’s acclimatization to his current environment, the degree of settled purpose in his environment from his perspective, and the shared intent of the parties all pointed to the U.S. as O.N.C.’s habitual residence.

Adamis v Lampropoulou, --- Fed.Appx. ----, 2016 WL 4470959 (Mem) (2d Cir.,2016)[Greece] [Consent][Petition denied]

In Adamis v Lampropoulou, --- Fed.Appx. ----, 2016 WL 4470959 (Mem) (2d Cir.,2016) the Second Circuit affirmed a judgment which denied Nikolaos Adamis petition for return of his son, D.A., to Greece following his removal to the United States by D.A.’s mother, appellee Fotini Lampropoulou. The district court found that Adamis had consented to the removal of D.A. from Greece, which meant that the move was not “wrongful” under the Hague Convention. The Second Circuit observed that “In cases arising under the [Hague] Convention, a district court’s factual determinations are reviewed for clear error. However, the district court’s application of the Convention to the facts it has found, like the interpretation of the Convention, is subject to de novo review.” See Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005) When a finding is based on a credibility determination, “particularly strong deference should be granted to the finding in light of the factfinder’s unique ability to assess the witness.” Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003). It held that the district court’s finding that Adamis consented to D.A.’s removal was not clearly erroneous. The district court relied on the testimony of Lampropoulou, D.A., and D.A.’s stepsister, Toula. Their statements were corroborated by a recorded conversation that occurred approximately ten days before Lampropoulou moved with D.A. to the United States. The conversation confirmed that Lampropoulou could live in the United States with D.A., and could “come and go” to Greece with D.A. Crediting Lampropoulou’s testimony, the district court found that there were no further conversations between the couple about the move until after Lampropoulou had already arrived in the United States, and that Adamis’s explanation for the recording – that he had consented only to a short trip to New York – was not credible. The Court deferred to those credibility findings which, particularly in conjunction with the recorded conversations, were not clearly erroneous.

Smith v Smith, 2016 WL 4154938 (W.D. North Carolina, 2016) [France] [Federal & State Judicial Remedies] [Temporary Restraining Order Granted ] [Winter Rule].

In Smith v Smith, 2016 WL 4154938 (W.D. North Carolina, 2016) Petitioner (Father) alleged that Respondent wrongfully retained the parties’ son “C.R.S.”, born in the United States in 2004, from his habitual residence in France, and that such wrongful retention occurred on or about June 30, 2016. The mother and son purchased round-trip tickets from France to North Carolina, departing June 28, 2016 and returning August 24, 2016; the child was attending sleepaway camp in the United States, where he had been since July 2nd, 2016 and he was scheduled to return  August 3rd, and would resume school in France. Petitioner  alleged that on July 19, 2016, he was unexpectedly served with Respondent’s North Carolina Complaint for Divorce and Custody, which Petitioner read as Respondent’s unequivocal intent to remain in North Carolina with the child. The Court observed that a TRO which is procedurally governed by Rule 65(b), Federal Rules of Civil Procedure, which provides as follows: The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. In considering the issuance of TRO, the court also considered current case law governing the issuance of such relief, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)]. In keeping with Winter, the Fourth Circuit found that first, a plaintiff must now show that he will “likely succeed on the merits” regardless of whether the balance of hardships weighs in his favor.  Also, the likelihood of success on the merits requires more than simply showing that “grave or serious questions are presented.”  Second, the plaintiff must make a clear showing that he will likely be irreparably harmed absent preliminary relief. That the plaintiff’s harm might simply outweigh the defendant’s harm is no longer sufficient.  The showing of irreparable injury is mandatory even if the plaintiff has already demonstrated a strong showing on the probability of success on the merits. Third, the Court is admonished to give “particular regard” to the “public consequences” of any relief granted. Finally, there no longer exists any flexible interplay between the factors, because all four elements of the test must be satisfied.  White v. Miller, 2011 WL 1168045, 2 (D.S.C. Mar. 7, 2011).
The court concluded that a TRO would issue prohibiting Respondent or anyone acting on her behalf from leaving the district with the child pending disposition of the  Hague Petition.