Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018) [Ecuador] [Habitual Residence] [Petition granted]

          In Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018) the district court granted Petitioner Ronald Javier Velez Saltos’ petition for the return of the seven-year-old minor child, R.C., to Ecuador.

         Petitioner was the father of R.C., a citizen of Ecuador, and was living in Ecuador. Respondent was R.C.’s mother, a citizen of Ecuador, and residing in New Jersey with her new husband, Dalton Mejia, who was an American citizen. Petitioner and Respondent were married in Ecuador on February 13, 2010, and had R.C. on July 7, 2011. R.C. was born in Ecuador and lived there for the first five years of her life. The parties separated in February 2012, and later divorced on December 7, 2016.

          On November 23, 2012, the parties entered into a custody agreement, whereby R.C. would live with Respondent, and Petitioner would have visitation rights from 5:30 p.m. to 9:30 p.m. on weekdays, and noon to 5:00 p.m. on the last Sunday of each month. An Ecuadorian Court approved the custody agreement the following day. (Petitioner testified that, because R.C. was very young at the time of the custody agreement, the Ecuadorian Court thought it would be best for her to be in the primary care of her mother. Petitioner spent time with R.C. under the terms of the agreement, which included seeing R.C. at school and for birthdays and holidays, as well as taking R.C. to visit his three other children from a prior marriage. Petitioner was also required to pay child support to R.C. and his other three children in the amount of $800 per month. Petitioner’s child support payments for R.C. were made through a judicial process pursuant to a court order. Under Ecuadorian law, Petitioner was prohibited from leaving the country because he was paying child support through a court order.  At some point after the separation, Petitioner declared bankruptcy and, based on financial status and inability to make the child support payments, the amount that Petitioner paid in child support was reduced. Because Petitioner fell behind on his payments, Respondent alleges that Petitioner owed about $5,000.00 in child support arrears. Respondent also claims that Petitioner cancelled R.C.’s medical insurance, which Petitioner clarified was automatically cancelled after he declared bankruptcy, and that the child support payments were supposed to cover health insurance.

          In early April 2017, Respondent informed Petitioner that she wanted to take R.C. on vacation to Disney World in Orlando, Florida from April 23, 2017 to May 1, 2017, and wanted Petitioner to authorize the travel. According to Petitioner, he expressed concerns that, if something were to happen to R.C., he would be unable to travel to the United States because the court-mandated child support payments prevented him from travelling. Petitioner would only agree to authorize Respondent and R.C.’s trip if Respondent removed her claim with the court that he owed $5,000.00 in child support payments, and agree to let Petitioner pay child support directly to Respondent instead of through the court. Respondent indicated that she reluctantly agreed, and the parties completed the necessary exit permit for R.C. to travel from April 23, 2017 to May 1, 2017. Before the trip to Orlando, Petitioner paid a portion of R.C.’s school registration fees, and Respondent enrolled R.C. for the upcoming school year in Ecuador.

          On April 23, 2017, Respondent and R.C. traveled to the United States from Ecuador. On April 30, 2017, Petitioner received an anonymous phone call informing him that Respondent intended on remaining in the United States with R.C. On May 1, 2017, Respondent called Petitioner and explained that her then-boyfriend, Dalton Mejia, proposed, and that Respondent will be staying in the United States with R.C. permanently, in order to give R.C. more opportunities for her future. At no time prior to this phone call did Respondent tell Petitioner that she intended to get married in the United States or that she intended on taking R.C. to New Jersey. Respondent and R.C. then traveled from Orlando, Florida to Union, New Jersey, where they still reside today. R.C. was five at the time. R.C. completed first grade in New Jersey and was enrolled at Hannah Caldwell School, where she has been excelling both academically and socially.

          Since May 1, 2017, Petitioner was unable to contact R.C. Petitioner filed this emergency petition with the Court on May 1, 2018. Service of the emergency petition was made on Respondent, and the Court issued an Order to Show Cause why R.C. should not be returned to Ecuador.

          The district court found that the parties agreed that R.C. would travel to the United States from April 21, 2017 until May 1, 2017. Petitioner testified that he expected R.C. to return to Ecuador on May 1, 2017. Therefore, the date the allegedly wrongful retention occurred was May 1, 2017. The parties did not dispute that R.C.’s habitual residence prior to her allegedly wrongful retention was Ecuador, which was bolstered by the fact that R.C.’s family, school, and entire life was in Ecuador prior to her trip to Orlando, Florida. Therefore, it found that R.C. was a habitual resident of Ecuador before her allegedly wrongful retention in the United States.

         

          According to Petitioner, Respondent’s wrongful retention violated his custody rights under Ecuadorian law, which hold that both parents have joint custody unless there is a court order to the contrary. There was no court order that terminated Petitioner’s joint custody rights. Additionally, Petitioner asserted that R.C.’s wrongful retention violated his rights under the custody agreement entered into by the parties on November 23, 2012. Respondent conceded that Petitioner had joint custody based on this custody agreement. Petitioner was unable to exercise these rights or otherwise contact R.C. since May 1, 2017, when R.C. was retained in the United States without his consent. Therefore, Petitioner had shown by a preponderance of the evidence that his custody rights were breached by R.C.’s allegedly wrongful retention in the United States.  Based on the facts, it was clear to the Court that Petitioner was sufficiently exercising his custody rights at the time of R.C.’s retention in the United States. Therefore, Petitioner made out a prima facie case that Respondent wrongfully retained R.C. in the United States in violation of the Hague Convention.

          Respondent asserted several of the affirmative defenses recognized by the Hague Convention. These affirmative defenses included: (1) that R.C. had been here for at least a year and was well settled in her home and school in New Jersey, where she was excelling socially and academically; (2) that R.C. was of sufficient maturity and has articulated her desire to stay in the United States and did not want to return to Ecuador; (3) that Petitioner was not exercising his custody rights because he did not visit or care for R.C. as articulated in the custody agreement; and (4) that R.C. would be exposed to a “grave risk of harm” if she is returned to Ecuador, based on (a) the possible abuse she may face under Petitioner’s care and (b) the human rights concerns associated with Ecuador, including the sexual exploitation of minors. The Court rejected each affirmative defense.

          The Court found Petitioner filed this emergency petition on May 1, 2018. Petitioner argued in his brief that the wrongful retention began on May 2, 2018, and that his emergency petition was therefore filed less than a year later. However, the date of R.C.’s wrongful retention was May 1, 2017. Therefore, R.C.’s wrongful retention fells into the year or more required for Respondent to invoke Article 12’s “well-settled” exception. Nevertheless, Respondent had not shown by a preponderance of the evidence that R.C. is “well-settled” within the meaning of Article 12. Upon finding that a year or more has passed, the Court must weigh several factors “informative of the child’s connection with his or her environment,” including 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 regularly, the stability of the mother’s employment or other means of support, whether the child has friends and relatives in the area, and to what extent the child has maintained any ties to the country of habitual residence. Silvestri v. Oliva, 403 F. Supp. 2d 378, 387–88 (D.N.J. 2005).

          While several of these factors weighed in favor of Respondent there were very serious concerns that weighed against applying the “well-settled” exception to this case. First, the majority of R.C.’s family lived in Ecuador, including her grandparents who R.C. remained in contact with. Second, R.C. wa at the very young age of seven, and her testimony is to be weighed accordingly. Furthermore, R.C.’s desire to remain in the United States was in part based on her living with, and under the influence of, Respondent. Notably, when R.C. was asked what she would want to do if her mother returned to Ecuador, R.C. responded, “I will go back to Ecuador because wherever [Respondent] is, I am. I am with her because we are a team.” This exchange, along with others, indicated to the Court that R.C.’s preference for New Jersey had less to do with her life in the United States, and more to do with being close to her mother. Last, and perhaps most important, Respondent and R.C. currently had an uncertain immigration status. Both Respondent and R.C. came to this country on a travel visa to Orlando, Florida, which was for a limited period of eight days.  Respondent’s Husband, Dalton Mejia, is an American citizen and was currently filing relative petitions for Respondent and R.C. to remain in the United States. However, the Court wasn’t convinced that Respondent and R.C.’s ability to remain in this country is certain, as they were vulnerable to deportation in the event that their relative petitions are denied. This fact, in conjunction with the other factors weighing against Respondent, outweighed those factors supporting the application of the “well-settled” exception. Therefore, the Court finds that Article 12’s “well-settled” exception did not apply to this case.

          For similar reasons as those expressed above, the Court found that Article 13’s second-to-last paragraph, also known as the “wishes of the child” exception, does not apply to this case either.  R.C. testified about how much she likes New Jersey, that she does not miss Ecuador, and that she does not want to return to Ecuador.  The most specific example R.C. gave as to why she does not want to return to Ecuador is that her half-sisters will tease her and pull her hair when they visit her. R.C. also testified that she wants to remain in the United States because she prefers her school here. However, much like the minor child in Tsai-Yi Yang, 499 F.3d at 279, R.C.’s testimony is more focused on why she prefers New Jersey, rather than why she specifically objects to returning to Ecuador.

          The Court also found that Respondent had not set forth sufficient facts to support the application of the exception articulated in Article 13(a) of the Hague Convention.

          A thorough review of the record in this case and Respondent’s arguments compelled the Court to conclude that there was no clear and convincing evidence that R.C. would suffer a grave risk of physical or psychological harm should she be returned to Ecuador. First, R.C. was not at risk of serious abuse or neglect if she returned to Ecuador. Respondent claimed that she had always been R.C.’s primary caretaker and to remove R.C. to Petitioner, whom she had not formed the same type of bond with, would cause R.C. great distress. R.C. also testified that she is afraid to return to Ecuador because she would no longer live with her mother. The distress caused from separating a child from their parent with whom they have a strong bond is generally not considered a grave psychological harm in cases brought under the Hague Convention. See, e.g., Carranco v. Munoz, Civil Action No. 12-7299, 2013 WL 150760, at *9 (D.N.J. Jan. 14, 2013) The Court rejected  Respondent’s arguments regarding R.C.’s risk of serious abuse or neglect in Ecuador. The Court also found that returning R.C. to Ecuador would not result in any risk of “imminent danger.” Respondent argues that the conditions in Ecuador make the country “not a safe place for a child.” For support, Respondent pointed to a 2017 Human Rights Report of Ecuador which reported high amounts of sexual abuse and exploitation of children.  While this report wass disturbing, it was not relevant to the Court’s determination, as it did not directly affect R.C. See Baxter, 423 F.3d at 373. Respondent conceded that “there is no direct evidence” to suggest that R.C. was or will be exposed to sexual abuse or exploitation in her hometown in Ecuador. Furthermore, the unfortunate fact that sexual abuse or exploitation can occur in Ecuador, like it can occur in almost any country, does not rise to the level of imminent danger articulated by the “grave risk of harm,” i.e., a war zone or the outbreak of a deadly virus. See Baxter, 423 F.3d at 373. Respondent also argues that the school system in the United States offers more opportunity than that of Ecuador. However, the loss of economic or educational opportunities alone does not rise to the level of “a grave risk of harm.” See Baxter, 423 F.3d at 373 (quoting Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001)). Therefore, the Court rejects both of Respondent’s arguments regarding R.C.’s risk of “imminent danger,” and found that Respondent cannot meet Article 13(b)’s “grave risk of harm” requirements as to apply the exception to this case.

Finally, even if any of the exceptions articulated above could be met, the Court would still act in its discretion to remove R.C., as almost all of Respondent’s arguments were focused on custody and the best interest of the child. 

Flores v Elias-Arata, 2018 WL 3495865 (M.D. Florida, 2018) [Peru] [Habitual Residence] [Petition granted]

          In Flores v Elias-Arata, 2018 WL 3495865 (M.D. Florida, 2018) the district court granted the petition for the return of the child, J.C.O.  from the United States to Peru.

          The Father and Mother, both citizens of Peru, first met when they were fifteen years old. Now in their late twenties, the parties have had a relationship over the last thirteen years with frequent break-ups and reconciliations. During the course of their relationship, the parties had a son together, who was born in Peru in January of 2013. After the Child’s birth, during the time periods when the Mother and Father were not a couple, the parties divided the parenting responsibilities and the Child spent time with both parents. The Mother lived in an apartment owned by the Father’s mother, and the Father lived with his parents. Both the Mother and Father worked, and a nanny, Ana Victoria Sanchez del Castillo, cared for the Child during the week.

           The Mother had long desired to move to the United States. Her mother was a United States citizen living in Fernandina Beach, Florida, and her father, who lived in Miami, Florida, has been a legal permanent resident of the United States since 2013. In 2010, during a time when the Mother and Father were not in a relationship, the Mother began the process of obtaining legal permanent resident status in the United States. When the Mother and Father reconciled a few months later, the Mother informed the Father of her pending permanent resident application. Later, when the Mother was pregnant with the Child, the Mother reminded the Father of her application for permanent resident status in the United States. In 2016, the parties agreed to include the Child in the Mother’s application for permanent resident status, and the maternal grandfather assisted with this process. The United States granted the Mother’s petition at some point in early 2017.

          At some point the parties agreed that the Child would travel with the Mother to the United States in June of 2017. In May of 2017, the Mother purchased a round-trip ticket from Lima, Peru, to the United States, and back to Peru. In addition, on May 15, 2017, the Mother and Father executed and notarized a form titled “Consent for Children Travelling Abroad.” The Form states that in accordance with Peruvian law, the Father and Mother “hereby give consent for their 4-year old son [the Child] to travel from Peru to the United States of America and back by air (Avianca Airline).”  According to the Consent to Travel Form: It is hereby stated for the record that the Child will travel with [the Mother]; she will take care of the Child during the stay in the destination above. Likewise, the appearing parties declare to know that this consent is valid for 90 (Ninety) Days after the issuance date. The minor will travel to the United States on June 13, 2017 and return to Peru on August 25, 2017.

          On June 10, 2017, the Mother moved out of the apartment where she was living. On June 12, 2017, the day before she was set to depart for the United States with the Child, the Mother filed a domestic violence claim against the father. On June 13, 2017, the Mother and Child traveled to the United States and have not returned to Peru since, remaining instead at the Child’s maternal grandmother’s house in Fernandina Beach, Florida.

          Soon after moving in with the maternal grandmother, the Mother furnished a room for the Child, started working, and enrolled the Child in daycare, all with the Father’s knowledge and without his objection. Indeed, the Father communicated frequently with the Mother using Facebook Messenger, and stayed in regular contact with the Child. However, in July of 2017, a disagreement arose between the parties regarding the Child’s future and as a result, the Mother filed a petition in Peru for the “Change of Residence of a Minor.”  In the Change of Residence Petition, the Mother petitioned the Peruvian court for “the change of regular residency of [the Child], who is four (04) years old, changing his address from the Republic of Peru to the United States of North America.” After the Mother and Child failed to return to Peru in August as scheduled, the Father filed a request on October 2, 2017, for the international return of the Child with the Peruvian Central Authority for the application of the Hague Convention. The Verified Petition followed in January. In the Verified Petition, the Father contends that the Mother either wrongfully removed the Child from Peru under false pretenses, or is unlawfully retaining the Child in the United States without the Father’s consent.

          The district court found that prior to June 13, 2017, the Child had lived in Peru his entire life. As such, unless the Child’s habitual residence changed when he came to the United States in June of 2017, the Child’s habitual residence remained in Peru. See Mozes, 239 F.3d at 1077 (instructing that a change in habitual residence “requires an actual change in geography” .The Father maintained that the Child’s habitual residence wa Peru because the Child’s visit to the United States was intended to be for only a limited period of time, and the Mother unilaterally decided to keep the Child in the United States. The Mother contended that the Child’s habitual residence changed to the United States because, according to her, the parties shared a settled intent that the Child live in the United States as of June 13, 2017. In addition, the Mother asserted that return was not warranted, even if the Child’s habitual residence was Peru, because the Father consented or acquiesced to the Child living in the United States.

          The Father maintained that the Mother first told him that she would not return to Peru with the Child via Facebook in July of 2017. The Father tried to convince the Mother to return on the agreed upon date, but the Mother refused, and at some point, in July or August, the Mother told the Father that she had filed the Change of Residence Petition. According to the Father, the Mother refused to return to Peru unless the Father signed an agreement allowing the Child to live in the United States permanently, which he initially refused to do. Eventually, in an attempt to gain the return of the Child, the Father told the Mother he would sign the paperwork allowing the Child to live in the United States, but only if the Mother brought the Child back to Peru first. The Father testified at the Hearing that he was desperate and did not actually intend to sign the paperwork had the Mother returned to Peru. When it became clear to him that the Mother was not going to let the Child return, the Father attempted to obtain a visa to travel to the United States but his application was denied. The Father then sought a remedy under the Hague Convention.  The father insisted that he told the Mother on many occasions prior to the trip that he did not consent to the Child living permanently in the United States, and according to the Father, the parties had an ongoing disagreement about the coordination of the Child’s studies between the United States and Peru.

          The Mother maintained that the purpose of the June 13, 2017 trip to the United States was to move here permanently with the Child. According to the Mother, throughout the course of her relationship with the Father, she was always open about her pending application for permanent resident status and her intention to move to the United States. In addition, the Mother testified that after she became pregnant she reminded the Father of her intention to live in the United States, and he told her: “‘Yes. Don’t worry about that. We will arrange that.’” Indeed, the Mother asserts that she and the Father agreed to include the Child in her permanent resident application because they intended for the Child to live in the United States.

          As to the June 13, 2017 trip, the Mother testified that she told the Father that the purpose of this trip was to move to the United States. According to the Mother, she quit her job, disposed of her furniture, and moved out of the apartment because she was moving to the United States permanently with the Child. Likewise, the Mother obtained a job in the United States, enrolled the Child in daycare here, and furnished a room for the Child at the grandmother’s house in Fernandina Beach, Florida. The Mother insisted that the Father’s awareness of these activities demonstrated his knowledge of the move’s permanence. Specifically, the Mother testified that the “initial plan” was “that my [C]hild would remain permanently here [in the United States], begin school, and that I would visit him with my [C]hild in Peru. So, the initial plan was that the [C]hild would live here and ... we would coordinate the visits to Peru in accordance to his schooling and my job.”

Although the parties’ testimony conflicted, the documents submitted into evidence during the Hearing supported only one version of events, that the parties never reached an agreement, either before or after the Child’s departure from Peru, about where the Child should live.

In addition to the Facebook messages, the Mother’s contention that the parties shared a settled intention for the Child to permanently relocate to the United States was contradicted by her actions in filing a domestic violence claim against the Father the day before she was scheduled to depart with the Child to the United States.

Based on the evidence, the Court was convinced that the Father never agreed to allow the Child to live in the United States. Unable to convince the Father to see things her way, the Mother, who had long planned to move to the United States, unilaterally decided that the Child would remain with her in the United States. While the Mother may have formed this intention well before she left Peru with the Child, in the absence of shared parental intent, the Child’s habitual residence remained in Peru. Thus, return of the Child was mandated under the Convention unless the Mother could establish an affirmative defense. See Baran, 526 F.3d at 1344. However, the Mother’s affirmative defenses failed for the same reasons−the Father never agreed that the Child could move to the United States.

The Mother’s argument that the Father consented to the Child’s permanent relocation to the United States was primarily based on his agreement with and participation in obtaining permanent resident status for the Child. However, in light of the Father’s testimony, as corroborated by the Facebook messages, it was apparent that the Father did not believe that obtaining this status for the Child required the Child to live in the United States.

 Likewise, the Mother’s argument that the Father subsequently acquiesced to the Child’s change of residence was not supported by the evidence.

Because the parties never shared a settled mutual intent to relocate the Child to the United States, the Child’s habitual residence remained in Peru. Likewise, as the Father neither consented to a permanent move prior to the June 13, 2017 departure, nor acquiesced to a permanent retention after the departure, the Mother failed to establish an affirmative defense. Accordingly, the Hague Convention mandated the prompt return of the Child to Peru to allow the Child’s country of habitual residence to resolve the ongoing custody dispute between the parties.

Crossan v Clohessy, 2018 WL 3614635 (W.D. Louisiana, 2018)[Ireland] [Rights of Custody] [Petition granted]

          In Crossan v Clohessy, 2018 WL 3614635 (W.D. Louisiana, 2018) Keith Crossan, a citizen of Ireland, sought return of his minor child M.T.C.C. to Ireland after the child’s mother, Louise Clohessy, removed M.T.C.C. to the United States without Mr. Crossan’s knowledge or consent.

          The district court observed that under the Convention, wrongful removal occurs when (1) a parent takes or retains the child outside of his country of habitual residence, (2) the removal/retention breaches the custody rights of the non-removing parent under the laws of that country, and (3) the non-removing parent was exercising or attempting to exercise his custody rights at the time of the removal or retention, or would have exercised those rights but for the wrongful removal or retention. Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir. 2004); Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). It is the petitioner’s burden to establish these factors by a preponderance of the evidence. Larbie, 690 F.3d at 307; 22 U.S.C. § 9003(e)(1).

           The district court found that under Irish law, unmarried fathers such as Mr. Crossan are not considered custodians of right but may attain that status under the “cohabitating provisions” of The Guardianship of Infants Act of 1964, as amended by The Children and Family Relationships Act of 2015. Under the Guardianship of Infants Act, as amended, an unmarried father obtains rights of guardianship if he was a cohabitant with the mother for at least twelve consecutive months, three of which occur “at any time after the birth of the child ... during which both the father and mother have lived with the child.” Guardianship of Infants Act, as amended, § 6B (3). This amendment is effective prospectively from January 18, 2016. For purposes of the Convention as well and assuming that the non-removing parent has custody rights, that parent must also have been exercising or attempting to exercise his guardianship rights by keeping regular contact with the child at the time of removal.

          The parties agreed that M.T.C.C. was removed from Ireland, his habitual residence, on August 28, 2017, by his mother, Louise Clohessy and without the permission of his father, Keith Crossan.  The district court found that that Mr. Crossan had established by a preponderance of the evidence that the cohabitating relationship between these individuals existed from September of 2015 until Ms. Clohessy removed her belongings and those of the minor child from the home in Carrick-on-Shannon in June of 2017. The period of time in which Mr. Crossan was renovating the home in Carrick-on-Shannon and Ms. Clohessy was recuperating from childbirth at her parents’ home did not represent a break in their consecutive cohabitation. Nor was the period of cohabitation interrupted by any of Ms. Clohessy’s visits to her parents’ home from November 2016 to June 2017, during which period witness testimony and documentary evidence reflect that she considered and held Carrick-on-Shannon out as her family residence with M.T.C.C. and Mr. Crossan. The fact of the parties’ ongoing co-habitating relationship throughout this time was amply supported by Facebook messages between Mr. Crossan and Ms. Clohessy referring to their shared home and status as a family, as cited in the court’s bench ruling; the fact that M.T.C.C.’s birth certificate, completed in December 2016, lists Carrick-on-Shannon as the current residence for both parents; the fact that Ms. Clohessy received correspondence from the Department of Social Welfare Services at the address in Carrick-on-Shannon as late as February 2018; the fact that M.T.C.C. received his immunizations, through May 2017, in Carrick-on-Shannon and had a prescription filled there in February 2017; and the fact that the house at Carrick-on-Shannon was fully furnished for an infant, to the point where multiple witnesses testified that Ms. Clohessy required a truck to move out their belongings in June 2017. Additionally, neighbors of Ms. Clohessy and Mr. Crossan in Carrick-on-Shannon testified that they interacted with the family during this period and that Ms. Clohessy acted as if Carrick-on-Shannon was her residence. On the other hand, Ms. Clohessy relied largely on her own account and that of her parents to establish that she and M.T.C.C. were actually residing in County Limerick during this period. For reasons more fully explained in our bench ruling, we determined that the Clohessys’ accounts were contradicted by the documentary evidence and tainted by the negative feelings they expressed toward Mr. Crossan.

          The parties did not appear to dispute that Mr. Crossan was exercising his rights as a father, and we likewise find that he did so through his contact with his child from birth through August 28, 2017, when Ms. Clohessy prevented any further contact by removing the child from the country without Mr. Crossan’s knowledge or consent and concealing his whereabouts.

          The court found that  Mr. Crossan had shown, by a preponderance of the evidence, that at the time of M.T.C.C.’s removal from Ireland that he (Mr. Crossan) had and was exercising rights of guardianship over M.T.C.C. under the cohabitating provisions of The Guardianship of Infants Act of 1964, as amended by the Children and Family Relationships Act of 2015, (1) because he had cohabitated with Louise Clohessy for at least twelve consecutive months from January 18, 2016 (when the cohabitation provisions of The Guardianship of Infants Act became effective), onward, and for at least three consecutive months within that period with both Ms. Clohessy and their child, M.T.C.C., and (2) because he was attempting to exercise his guardianship rights under Irish law by keeping regular contact with the child at the time of removal.

          Therefore Ms. Clohessy’s removal of M.T.C.C. from Ireland to the United States violated the Hague Convention and ICARA, under which Mr. Crossan instituted proceedings in this court, and Mr. Crossan’s petition for return of the child had to be granted

Cocom v Timofeev, 2018 WL 3958129 (D. South Carolina, 2018)[Belize ] [Federal & State Judicial Remedies] [Temporary Restraining order]

          In Cocom v Timofeev, 2018 WL 3958129 (D. South Carolina, 2018) the district court granted Raquel Margarita Cocom’s (“Mother”) emergency ex parte motion for a temporary restraining order (“TRO”) against her Child’s father, Andrey Timofeev (“Father”), and grandmother, Irina Timofeev (“Grandmother”), as part of her efforts to have her child, V.A.T. (“Child”) returned to her in Belize.

          According to the Petition and TRO motion, Mother and Father met in Belize and were in a relationship from April 2009 until Father and Child left for the United States on November 5, 2017. Mother gave birth to Child on November 20, 2015 in Orange Walk District, Belize, after which Mother raised the Child in Belize with some assistance from Father. However, Father did not live full-time in the same house as Mother, Child, and Mother’s ten-year-old child from a previous relationship, J.J.R. Shortly after Child’s birth, Father told Mother that he wished to move to the United States to join Grandmother and his stepfather. Mother refused to agree to move to the United States unless the entire family, including J.J.R., moved together legally. Eventually, Mother and Father agreed that they would obtain visas to migrate to the United States together, but Father then changed plans and applied only for a visa for himself and Child. Unknown to Mother, Grandmother petitioned for Father to obtain a green card. On November 5, 2017, Father told Mother that Grandmother had bought tickets for Father and Child to fly out of Belize later that day. He assured Mother that he was only going to travel to South Carolina to visit his family for two weeks, after which he would return to Belize with Child, would marry Mother, adopt her son, and then they would all travel to the United States legally as a family. Two weeks later when Child did not return home, Mother contacted Father and asked him to bring Child home to her immediately. Father responded that Child would be staying in the United States. Immediately afterwards, on November 20, 2017, Mother filed her Application under the Convention. Belizean officials completed the application on or about January 26, 2018, after which it was transmitted to the United States Department of State. Mother then obtained pro bono counsel to locate Child and to file this Petition. Interpol in Washington, D.C. confirmed on June 26, 2018 that Child is now living with Father and/or Grandmother in Georgetown, South Carolina.

          Mother’s petition before this court, filed on August 14, 2018, alleged wrongful detention of Child, in violation of the Convention and 22 U.S.C. §§ 9001, et seq. ECF No. 1. On August 14, 2018, Mother also filed an ex parte emergency motion for a TRO.

The district court found that a party ty may move for a preliminary injunction or a TRO under Federal Rule of Civil Procedure 65. A Temporary Restraining order may be issued without notice to the adverse party or its attorney 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. Fed. R. Civ. P. 65(b). “The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a” longer period. Id. The movant must also give the court “security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” 

          A temporary restraining order or a preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see also U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006). To obtain a TRO, a Plaintiff must show: (1) that she is likely to succeed on the merits, (2) that she is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in her favor, and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20. A Plaintiff seeking injunctive relief must show that all four of the Winter factors support granting relief. See id.; see also Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (noting that the Plaintiff “bears the burden of establishing that each of these factors supports granting the injunction” (quoting Technical Publishing Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984))).

Moreno v Zank, --- F.3d ----, 2018 WL 3467919 (6th Cir., 2018) [Ecuador][Habitual residence][Re-abduction]

          In Moreno v Zank, --- F.3d ----, 2018 WL 3467919 (6^th Cir., 2018) the mother sought the return of a child to Ecuador.The district court held that the mother’s original abduction of the child to Ecuador years earlier meant that Ecuador could not be the child’s habitual residence. The Sixth Circuit held that reversal and remand was required because the proper remedy for the initial kidnapping to Ecuador was a Hague Convention petition filed in Ecuador, subject to applicable limitations and defenses, rather than the self-help remedy of (in effect) later re-kidnapping back to the United States.

          The child, BLZ, was born in 2006 in Michigan to the then-married couple of Jason Zank, a citizen of the United States, and Liz Lopez Moreno, a citizen of Ecuador. Zank and Lopez Moreno divorced in July 2009. Their divorce decree granted Zank and Lopez Moreno joint legal and physical custody of BLZ, with alternate weekly custody and twice-weekly visitation by each parent. It also prohibited Lopez Moreno from taking BLZ to Ecuador without prior notice to Zank. In December 2009, Lopez Moreno took BLZ to Ecuador with her, in violation of the divorce decree. Zank obtained an ex parte order from a Michigan state court,  temporarily granting him sole legal and physical custody of BLZ. Once Zank discovered that BLZ had been taken to Ecuador, he contacted the U.S. Department of State and filled out a Hague Convention petition with the United States Embassy in Ecuador. However, Zank did file the petition with the Ecuadorian courts, or otherwise attempt to secure the return of BLZ through procedures in Ecuador, because he had suffered what he called “the runaround” from U.S. Embassy officials.

          In Ecuador, Lopez Moreno enrolled BLZ in a private school and arranged for her to have language tutoring. BLZ flourished in this environment, participating in a number of extracurricular activities and making many Ecuadorian friends. The district court determined that, because BLZ had lived so fully in Ecuador from the ages of 3 to 10, she “had been acclimatized to Ecuador and was settled there,” such that she would have met the standards for establishing habitual residency in Ecuador.

          Beginning in 2010, Lopez Moreno first permitted Zank’s parents, and then Zank himself, to visit BLZ in Ecuador. In 2010, Lopez Moreno had obtained an ex parte order from an Ecuadorian court prohibiting BLZ from leaving the country. Lopez Moreno and Zank  reached an accord between themselves. Under their agreement, Lopez Moreno received full legal custody of BLZ and an increase in Zank’s child support payments from $200 to $300 a month, and Zank “waive[d] pursuing further action arising from the arrival of the minor child in Ecuador.” In return for his concessions, Zank received a lifting of the 2010 Ecuadorian court order, and Lopez Moreno’s permission to have BLZ visit him in Michigan when not in school. The district court made a specific determination that Zank “was coerced into making the agreement.”

          Zank and Lopez Moreno brought the agreement to an Ecuadorian family court for ratification. The Ecuadorian court approved and ratified the agreement, granting permanent custody of BLZ to Lopez Moreno in Ecuador, but permitting BLZ to make temporary visits to Zank in the United States. Following the Ecuadorian agreement, BLZ made one visit to Zank in Michigan in 2014. In 2015, before a second visit of BLZ to Zank in Michigan, Lopez Moreno and Zank entered into a second agreement, this one in the United States. This agreement tracked the Ecuadorian agreement.  The record left it unclear as to whether the agreement was actually filed with any court.

          In 2016, Lopez Moreno again sent BLZ to visit Zank for the summer. Zank testified that, during this visit, BLZ told him that Lopez Moreno had physically abused her, by hitting her and throwing a chair at her, and that she did not wish to return to Ecuador. On August 5, 2016, BLZ called Lopez Moreno, and, in a “very fast conversation,” BLZ stated that she had learned “the entire truth” about the divorce, believed that Lopez Moreno “was a drug user,” and had realized that Lopez Moreno had abducted her to Ecuador. On August 10, Zank did not place BLZ on a scheduled flight to Florida to visit Walt Disney World with Lopez Moreno’s father, and, on August 15, Zank did not place BLZ on a flight scheduled to take BLZ from Michigan back to Ecuador.

          On October 10, 2016, Zank filed a petition with the Montcalm County Circuit Court for permanent custody of BLZ. The Friend of the Court investigated Zank’s living situation and determined that the best interest of BLZ was for Zank to be granted permanent custody of her, given, among other things, that Lopez Moreno had violated the 2009 custody order and that BLZ voiced a preference for living permanently with Zank. Lopez Moreno was not present in this process, apparently because she had not updated her address with the court when she left for Ecuador. On October 31, 2016, the Montcalm County Circuit Court granted permanent sole custody of BLZ to Zank.

          On August 14, 2017, Lopez Moreno filed this Hague Convention petition in U.S. District Court, contending that Zank’s retention of BLZ in Michigan was wrongful. The complaint sought the immediate return of BLZ to Ecuador and made the allegation, necessary to relief under the Convention given Lopez Moreno’s arguments, that BLZ was a habitual resident of Ecuador. The district court rejected this argument. Although the court acknowledged that BLZ had spent such extensive time and maintained such a social connection to Ecuador that she would otherwise be deemed a habitual resident of that nation, it held that “because [Lopez Moreno] abducted BLZ in violation of Michigan law and brought her [to Ecuador] in 2009,” she could not have become habitually resident in Ecuador, and that her habitual residence accordingly remained in the United States. The district court proceeded to decide further that, because BLZ maintained habitual residency in the United States, the 2009 custody order continued to apply to BLZ and the subsequent Ecuadorian and American agreements between Lopez Moreno and Zank did not overcome that custody order. The former did not apply because an Ecuadorian court did not have jurisdiction over an American custody assignment, and the latter did not because there was no evidence that the agreement was ever ratified by the Montcalm County Circuit Court. Lopez Moreno appeals.

          The Court of Appeals observed that the central issue in this case was whether Lopez Moreno’s questionable removal of BLZ from Michigan to Ecuador in 2009 precluded the possibility that BLZ had become habitually resident in Ecuador for purposes of Lopez Moreno’s Hague Convention challenge to Zank’s retention of BLZ in Michigan in 2016.

           The Sixth Circuit noted that it had held that, for children above the age of cognizance,, a habitual residence is “the nation where, at the time of [her] removal, the child has been present long enough to allow ‘acclimatization,’ and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ” Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007). The Court pointed out that object and purpose of the Hague Convention is to provide an international legal scheme to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Hague Abduction Convention, Preamble. States party to the Convention therefore undertake to return a wrongfully taken child when proceedings are brought promptly, subject to certain exceptions related to the child’s welfare and desires. The Convention also allows a person seeking relief to bring these proceedings without the assistance of State agents. Therefore, if Convention procedures are not fully pursued when a child is first abducted, it makes little sense to categorically permit later self-help abduction in the other direction, after the child has been acclimatized in the second country. Permitting re-abduction results in a total disregard for the limits that the Convention puts on the remedy for the first abduction, such as time limits, and exceptions for the child’s welfare or mature preference. Permitting abduction for a second time carries the same threat to the child’s well-being of being torn from an accustomed residence. The Convention scheme achieves its purposes only if Convention processes are applied, with applicable exceptions, each time a child is abducted from a country in which the child has been acclimatized. The rule applied by the district court in this case was not consistent with such a scheme. The Sixth Circuit noted that at  least two  sister circuits had come to a similar conclusion. Kijowska v. Haines, 463 F.3d 583, 588–89 (7th Cir. 2006) ; Ovalle v. Perez, 681 F. App’x 777, 779 (11th Cir. 2017).

          The court stated that its holding that Ecuador was the habitual residence of BLZ in 2016 did  not automatically mean that Zank had to return her . It held that just as Lopez Moreno could have raised defenses to a Hague Convention case had one been brought in Ecuador, Zank could raise such defenses in this case on remand. Several such defenses were raised by Zank in the district court below, but the district court had no occasion to reach them. At oral argument in this appeal, counsel for Lopez Moreno agreed that such arguments could be addressed in the district court should Lopez Moreno succeed in obtaining a remand.

          It remanded the case to the district court for a first evaluation of Zank’s defenses against Lopez Moreno’s prima facie Hague Convention case. Such a remand was warranted because these defenses are all fact-intensive ones, generally requiring specific and detailed fact-finding by the district court. See Friedrich II, 78 F.3d at 1067.

          The judgment of the district court was reversed and the case was remanded for further proceedings consistent with this opinion.

Castellanos Monzon v De La Roca, --- Fed.Appx. ----, 2018 WL 3471549 (3rd Cir., 2018) [Guatemala] [Petition denied][Remand]

          In Castellanos Monzon v De La Roca, --- Fed.Appx. ----, 2018 WL 3471549 (Mem) (3^rd Cir., 2018) Hugo Castellanos Monzón appealed from the denial of his petition for the return of his child, H.C., to Guatemala.

          Castellanos filed his petition with the District Court in 2016, eighteen months after his ex-wife, appellee Ingrid De La Roca, was alleged to have wrongfully removed H.C. to the U.S. without Castellanos’s consent. Castellanos took immediate steps to have H.C. returned by seeking redress from the Guatemalan Central Authority and the U.S. State Department. However, Castellanos failed to commence proceedings within one year of the date of H.C.’s wrongful removal, and, as the Third Circuit held, the District Court correctly applied the relevant statutory provisions for when proceedings are initiated more than a year after a child is removed from the requesting parent.

          The Court pointed out that the unambiguous text of ICARA required Castellanos to initiate a “proceeding” in “any court which has jurisdiction of such action,” and it is powerless to stretch that text to include either the Guatemalan Central Authority or the U.S. State Department.

           When proceedings for a petition for the return of a child begin more than one year from the child’s removal, the Convention states that the court “shall order the return of the child,” subject to specific affirmative defenses set forth in § 9003(e). De La Roca, as respondent to Castellanos’s petition, had to establish those defenses according to the burdens of proof specified in subsection (e)(2) of that statute. In   order to defeat Castellanos’s petition for the return of H.C., the statute clearly states that De La Roca had to establish “one of the exceptions set forth in article 13b or 20 of the Convention” “by clear and convincing evidence ... and” that she must establish “any other exception set forth in article 12 or 13 of the Convention” “by a preponderance of the evidence.”

           ICARA requires that a petitioner in an action for return of the child establish by a preponderance of the evidence that “the child has been wrongfully removed or retained within the meaning of the Convention.” 22 U.S.C. § 9003(e)(1)(A). In particular, a court must determine “(1) when the removal or retention took place; (2) the child’s habitual residence immediately prior to such removal or retention; (3) whether the removal or retention breached the petitioner’s custody rights under the law of the child’s habitual residence; and (4) whether the petitioner was exercising his or her custody rights at the time of removal or retention.” Karpenko, 619 F.3d at 263. Here, the District Court found that Castellanos had established a prima facie case of wrongful removal and/or retention.

          The District Court concluded that De La Roca had established by a preponderance of the evidence that H.C. was “now settled in the United States,” one of the exceptions set forth in Article 12 of the Convention, and that H.C. therefore should not be returned to his father in Guatemala. However, the District Court’s inquiry ended there. The court did not address whether De La Roca had established, by clear and convincing evidence, “one of the exceptions set forth in article 13b or 20 of the Convention,” as required by § 9003(e)(2)(A).

          The Third Circuit rejected  De La Roca’s argument that Congress intended that the requirements contained in subsections (e)(2)(A) and (e)(2)(B) be interpreted in the disjunctive. It held that until instructed to the contrary by Congress or the Supreme Court, we must assume that “and” in the statute means “and,” not “or.”

          It remanded the matter to the District Court with instructions to conduct both parts of the inquiry set forth in § 9003(e)(2) and that De La Roca be required to establish the exceptions provided in that statute pursuant to the respective levels of proof.

Law and The Family New York, 2d Ed by Joel R. Brandes contains almost 900 pages devoted to the Hague Convention on the Civil Aspects of International Child Abduction

Law and the Family New York, 2d Edition Revised

By Joel R. Brandes

Table of Contents, Volume 4 A, Pages 234-1111

Chapter 1

Hague Convention on the Civil Aspects of

International Child Abduction

§ 1:153 Nature and purpose of the Hague Convention and

Overview

§ 1:153.10 Text of the Convention on the Civil Aspects of

International Child Abduction done at the Hague on

October 25, 1980

§ 1:153.20 Text of the International Child Abduction Remedies Act.

§ 1:153.30 Central authority

§ 1:153.50 Hague Convention—Introduction to this Chapter

§ 1:153.60 Interpretation of The Hague Convention

§ 1:154 Applicable to habitual resident of state signatory countries

only

§ 1:154.10 Applicable only to Children less than 16 years old

§ 1:154.20 Defining “Habitual Residence”

§ 1:154.30 Wrongful Removal or Retention

§ 1:155 Rights of custody

§ 1:155.10 Rights of custody defined

§ 1:155.20 Ne exeat and Patria potestas—Defined

§ 1:155.30 Ne exeat rights and Patria potestas as rights of custody

§ 1:155.40 Rights of access distinguished

§ 1:155.50 Exercising rights of custody—Liberal approach

§ 1:156 Defenses to return under the Hague Convention—In

general

§ 1:157 Article 12: one-year limitations exception—The “now

settled” defense

§ 1:157.50 Article 12: one-year limitations and “now settled”

exception—Equitable tolling

§ 1:158 Article 20: Human rights and Fundamental Freedoms

exception—The human rights defense

§ 1:159 Article 13(a): consent or acquiescence exception—The

Consent defense

§ 1:160 Article 13 (b)—Grave Risk of Harm Exception—The Grave

Risk of Harm Defense

§ 1:160.10 — — —Undertakings

§ 1:161 Article 13: Wishes of the child exception—The “Age and

Maturity” defense

§ 1:162 Article 18—Discretion to Order Return of Child Where

Defense Established

§ 1:163 Effect of notice of custody dispute—Automatic stay of

state court custody determinations

§ 1:164 Article 26—Security, Costs and Expenses

§ 1:165 Central Authority—Non-judicial remedies

§ 1:166 —Application to Central Authority

§ 1:167 —Statement of reasons for delay

§ 1:168 Right to Exercise Federal and state judicial remedies

§ 1:168.10 Federal Subject Matter Jurisdiction—In General

§ 1:168.20 Federal Subject Matter Jurisdiction Under the

International Child Abduction Remedies Act

§ 1:168.30 Federal Question Jurisdiction

§ 1:168.40 —Venue

§ 1:168.50 Standing to File a Hague Petition in Federal District

Court

§ 1:169 Commencement of proceedings—Jurisdiction and Venue

§ 1:169.10 Pleading Requirements and Service of Summons in Hague

Convention Cases—In General

§ 1:169.20 Commencment of Proceedings Under ICARA—Definitions

§ 1:169.30 Stay of Custody Proceedings After Notice of Wrongful

Removal or Retention—Article 16

§ 1:169.40 Article 17—Effect of State Court Decision after Notice

§ 1:169.60 Article 11—Expeditious Determination

§ 1:169.70 Motion Practice in Hague Convention Cases—In General

§ 1:170 Notice of commencement of proceedings

§ 1:171 Petitioner’s burden of proof

§ 1:172 Respondent’s burden of proof

§ 1:173 Determination as to Wrongful Removal From Authorities

of State of habitual residence of child

§ 1:174 Provisional Remedies—Temporary Restraining Order,

Surrender Passport, Post Bond, Temporary Custody and

Access to Child

§ 1:175 Appointment of Guardian Ad Litem and Attorney for the

Child In Hague Convention Cases

§ 1:176 Legal aid

§ 1:177 Full faith and credit

§ 1:177.08 Jurisdiction to enforce rights of access

§ 1:177.16 Pleading Requirements

§ 1:177.20 Default Judgment

§ 1:177.24 Removal of state Hague proceedings to federal court

§ 1:177.32 Discovery

§ 1:177.40 Federal Abstention Under the Younger and Colorado River

Abstention Doctrines

§ 1:177.48 Denial of Relief under the Fugitive Disentitlement

Doctrine

§ 1:177.56 Applicability of the Mootness Doctrine

§ 1:177.64 Withdrawal or dismissal of own petition

§ 1:177.72 Availability of summary judgment

§ 1:177.74 Referral of Hague Convention Petition to Magistrate

Judge to Report and Recommend

§ 1:177.76 Summary bench trial

§ 1:177.80 Rules of Evidence, Admissibility of Foreign Documents

and Expert Opinion—In General

§ 1:177.82 Testimony By Video Transmission from a different location

§ 1:177.86 Judicial notice of foreign law

§ 1:177.87 Child’s Right to Appeal

§ 1:177.88 Jurisidiction of District Court to Maintain Status Quo

Pending Appeal

§ 1:177.89 Judgment of District Court for Return. Remedies. Motion

for New Trial. Enforcement of Judgment

§ 1:177.90 Standard of review

§ 1:177.91 Issuance of Mandate by Court of Appeals

§ 1:177.92 Hague Convention Proceedings in New York State

Courts—Commencement of Proceedings

§ 1:177.93 State Court Jurisdiction of Hague Convention Cases

§ 1:177.94 Hague Convention Proceedings in New York State

Courts—Habitual Residence

§ 1:177.96 —Grave Risk of Harm

§ 1:177.98 Conditional order granting return of child

§ 1:178.99 Re-return order