Farr v Kendrick, 2019 WL 2568843 (D. Arizona, 2019)[Mexico] [Federal & State Judicial Remedies] [Grave risk of harm] [Petition denied]

In Farr v Kendrick, 2019 WL 2568843 (D. Arizona, 2019) the district court denied the fathers petition for return.

At the outset the court noted that ICARA proceedings must be conducted on an expedited basis and should, at least as an aspirational matter, be completed within six weeks of when the petition was filed. See, e.g., Lops v. Lops, 140 F.3d 927, 944 (11th Cir. 1998). In recognition of these challenges, the Ninth Circuit has stated that district courts should “‘use the speediest procedures’” available when adjudicating ICARA claims. Holder, 392 F.3d at 1023 . Given this backdrop, the Court concluded it was not required to strictly comply with the Federal Rules of Civil Procedure or the Federal Rules of Evidence when conducting the proceedings in this case. The Court utilized procedures that were, in its view, best suited to achieve a fair, expeditious, and just outcome.

 In 2007, Father and Mother met in Texas. At the time, Mother had a five-year-old child (Z.A.K.) from a previous relationship. In 2009, Mother became pregnant with Father’s child. However, by the time the child (a boy named K.M.K.F.) was born in December 2009, the couple had separated, with Father living in Mexico and Mother living in the United States. In 2011, Father was hospitalized in Texas due to drug-induced “psychosis,” which was caused, at least in part, by Father’s recurrent use of illegal hallucinogenic drugs.  Following this incident, Father became more religious. Father’s increasing religious devotion resulted in tension between Father and certain members of his family all of whom came to view Father’s methods for disciplining the Children (which were e rooted, in part, in Father’s religious beliefs) as abusive and inappropriate. At some point in 2012, Mother and Father began living together in Texas with K.M.K.F. In May 2014, Father and Mother got married in Texas. In February 2015, the Children were born in Texas. In August 2015, Mother, Father, Z.A.K., K.M.K.F, and the Children moved to Mexico so Father could pursue a job opportunity with a company owned by his sister. In October 2016, Mother took a trip to Texas to visit family members. During this trip, Father had a second “psychosis” episode that required medical care.  In January 2017, Mother and Father separated and began living in different residences in Mexico. Following the separation, Mother and Father shared joint custody of the Children. In July 2017, Father filed for divorce from Mother in Mexico. In April 2018, Mother filed a criminal complaint (Exhibit 94) against Father with Mexican law enforcement authorities, which resulted in the entry of a protective order against Father. Among other things, Mother asserted in this complaint that “violence physical, emotional and economic [had been] exerted on me by” Father. In June 2018, the protective order was dissolved and Father was allowed to continue exercising custody of K.M.K.F.  On August 11, 2018, Mother left Mexico with the Children and began living with the Children in Lake Havasu City, Arizona. K.M.K.F remained in Mexico living with Father. In September 2018, a Mexican court entered a divorce decree that dissolved Father’s and Mother’s marriage. In October 2018, Father married a new wife, Alejandra Rodriguez, in Mexico.

The district court found that the United States was the children’s habitual residence. The first step in the analysis is to assess whether Mother and Father “had a settled intention to abandon the United States as the children’s habitual residence in favor of [Mexico].” Holder, 392 F.3d at 1016. “Mother and Father did not have a shared, settled intent to abandon the United States as their habitual residence. The evidence pointed overwhelmingly toward the conclusion that the move to Mexico was temporary and provisional., The Ninth Circuit’s decision in Murphy supports the conclusion that there was no settled intent to abandon the United States as a habitual residence under these circumstances. 764 F.3d at 1147-48. Because Father and Mother lacked a shared, settled intent to abandon the United States as their habitual residence, the Court proceeded to the second step of the analysis, which is to “ask[ ] whether there has been sufficient acclimatization of the child to trump this intent.” Murphy, 764 F.3d at 1150. In general, the concept of acclimatization reflects the principle that, “given enough time and positive experience, a child’s life may become so firmly embedded in the new country as to make it habitually resident even though there [may] be lingering parental intentions to the contrary.” Mozes, 239 F.3d at 1078. The Ninth Circuit has cautioned, however, that “ ‘courts should be slow to infer [acclimatization],’ both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention.” Murphy, 764 F.3d at 1152-53 . Here, the question of acclimatization wasn't close. The Children were less than a year old at the time they moved to Mexico and were only three years old when they returned to the United States. They did not speak Spanish and were not enrolled in school when in Mexico. The Ninth Circuit has emphasized that it would be “practically impossible” for “a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment of the parents.” Holder, 392 F.3d at 1020-21. This rule precludes any suggestion that the Children somehow acclimatized to life in Mexico as toddlers. 

The Court noted that Article 13(b) of the Convention provides that a wrongfully-removed child need not be returned to his or her country of habitual residence if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The Ninth Circuit has emphasized that the grave-risk exception must be “drawn very narrowly” and “is not a license for a court in the abducted-to country to speculate on where the child would be happiest.” Gaudin, 415 F.3d at 1035, 1036  “Rather, the question is whether the child would suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.”  The Court concluded that mother met her burden of clearly and convincingly proving its applicability. In reaching this conclusion, the Court acknowledged there are multiple pieces of evidence that suggested Father was a loving and committed parent who did not resort to violence when angry and , Father’s past “psychosis” incidents were not terribly concerning, he’s was drug-free since 2016 and his commitment to his sobriety and children appeared to be sincere.

Nevertheless, the evidence concerning Father’s administration of corporal punishment was deeply troubling and led the Court to conclude the grave-risk exception was been satisfied. As for frequency, Mother testified that Father would spank the Children (who were between 0-3 years old during their time in Mexico) on a daily basis and would spank K.M.K.F. (who was under 10 years old) up to three times per day. Although Father gave slightly lower estimates, he still acknowledged that he was administering physical punishment many times each week. As for the manner of administration, Father initially used sections of PVC pipe and wooden dowels and later began using color-coded plastic rulers (whose colors correspond with different “sins”). The punishment was usually administered behind closed doors, with the child’s pants pulled down. During one episode, Father spanked K.M.K.F. more than 20 times. Finally, as for the risk of injury, the Children were spanked so hard that, on at least five occasions, they sustained bruises and visible raised, red marks. Father admitted that he administered an average of more than one set of spankings each day over a period of three years, which suggested he wasn't reserving punishment for major transgressions, and Mother provided testimony (which Father didn't dispute) that Father would punish the Children for bathroom “accidents,” which hardly constitutes misbehavior. The Children were very young at the time these punishments were being administered. In one of the photos depicting visible bruising, Mother estimated the child was only 20 months old. The Court questioned whether a child of this tender age can comprehend why he is being punished. Finally, although Father’s use of a ruler wasnot per se unlawful  the repeated infliction of bruises and other visible marks suggested Father exceeded the scope of reasonable discipline , causing bruising, although he denied intending to leave bruises).

Here, it was unlikely the Children would suffer grievous bodily injury if returned to Father’s care, although the multiple past instances of bruising were re troubling and unacceptable, there is a difference between bruises and more serious injuries. Additionally, although it seemed intuitively correct that exposing a child to excessive corporal punishment that is (or borders on) child abuse can't be good for the child’s psychological health, there was no expert testimony presented in this case that touched upon how the Children’s psychological health would be affected if they were returned to Father’s custody for a short period of time necessary to complete Mexican custodial proceedings (which, under Gaudin, appeared to be the only relevant timeframe). Nevertheless, the bottom line was that returning the Children to Father would create a virtual certainty the Children would be exposed to conduct that likely constituted child abuse under the law of most states. In the Court’s view, and in the absence of any case specifically holding otherwise, that simply had to constitute “a grave risk that ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Cf. Simcox v. Simcox, 511 F.3d 594, 605 (6th Cir. 2007) (although “there is no clear answer” to the “difficult question [of] precisely what level [of abuse] will expose the child to a ‘grave risk’ of harm,” most “courts that have confronted abusive situations tend to refuse to order the return of the children, at least where the abuse could be characterized as very serious”).

Quinn v Quinn, 2019 WL 2518147 (W.D. Missouri, 2019)[Japan][Habitual residence][Petition granted]

               In Quinn v Quinn, 2019 WL 2518147 (W.D. Missouri, 2019) the Court found that Respondent  wrongfully retained custody of the Child since August 2018; the Child currently resided with Respondent in Mount Vernon, Missouri; and granted the petition for return of the Child to Japan.

               Petitioner and Respondent were married in Japan on September 5, 2014. Petitioner and Respondent lived together in Japan from September 2013 through May 2018, thereafter, Respondent returned to the United States. Petitioner and Respondent were the biological parents of the Child, who was born in Japan in April 2014. Petitioner currently resided in Tokyo, Japan. Respondent currently resided in Mount Vernon, Missouri. Petitioner and the Child came to the United States to visit Respondent in August 2018. On October 15, 2018, Petitioner returned to Japan without the Child for a medical procedure. At that time, Respondent agreed to send the Child back to Japan on November 6, 2018; however, Respondent failed to return the Child to Petitioner in Japan on November 6, 2018, and at any point thereafter.

               The district court noted that the Hague  Convention went into effect between the United States and Japan on April 1, 2014, upon Japan’s accession to the Convention. The Hague Convention applies only if the child is abducted from one signatory nation to another. 22 U.S.C. § 9001(a)(4); Hague Convention, Art. 1(b). Here, Petitioner alleged the Child was wrongfully kept from his regular residence in Japan.

               The Court observed that in order to prevail on a petition to return a child under the Hague Convention, a petitioner has the burden to prove, by preponderance of the evidence, that the child has been “wrongfully removed or retained” from the child’s “habitual residence.” Although the term “habitual residence” is not defined in the Convention, the Eighth Circuit has found that “there is no real distinction between habitual and ordinary residence.”. A child’s “habitual residence” is determined at the time immediately prior to the incident alleged to constitute a wrongful removal or retention - the country from which the child came, not the country to which he was wrongfully removed. Silverman v. Silverman, 338 F.3d 886, 897 (8th Cir. 2003). A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995). The determination of habitual residence is primarily a fact-based determination and not one which is encumbered by legal technicalities; therefore, a court must look at the facts, the shared intentions of the parties, the history of the child’s location and the settled nature of the family prior to the facts giving rise to the request for return..

               The Court found that Petitioner had established by a preponderance of the evidence that the Child was a habitual resident of Japan. Petitioner’s Complaint provided the Child’s birth certificate showing the Child was born in Japan. The Complaint also provided the Child’s daycare records which demonstrated the Child attended daycare on a regular basis in Japan. Accordingly, the Court found that the Child’s residence immediately prior to Respondent’s wrongful retention was Japan. Petitioner proved by a preponderance of the evidence that the Child was wrongfully retained in violation of Petitioner’s custody rights under Japanese law. Both Petitioner and Respondent testified that Petitioner’s travel from Japan to the United States was intended to be a temporary visit, and at the conclusion of the visit, Petitioner and the Child would return to Japan. The Child would resume living in Japan with Petitioner after the visit concluded. Petitioner showed by a preponderance of the evidence that she was exercising her custody rights over the Child at the time of the wrongful retention.

               Respondent argued the Child would be subjected to a grave risk of harm if the Child were returned to Japan with Petitioner. However, the Court found that Respondent had not shown by clear and convincing evidence that the Child would  be subjected to a grave risk of harm if he was returned to Japan. Hague Convention, art. 13(b). Petitioner provided all mental health records for the Court’s consideration. The Court reviewed these medical records. Further, both parties presented expert testimony and lodged oral arguments as to Petitioner’s ability to manager her diagnosis as well as care for the Child. After reviewing the medical records, reviewing the filings submitted by the parties, and considering the expert’s testimony, the Court concluded that the Child would not be subject to a grave risk of harm if the Child returned to Japan with Petitioner.

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Sundberg v Bailey, 765 Fed.Appx. 910 (4th Cir. 2019) [Sweden] [Habitual residence] [Necessary expenses] [Petition granted]

          In Sundberg v Bailey, 765 Fed.Appx. 910 (4th Cir. 2019) the district court granted the petition for return of the child to Sweden. The Fourth Circuit affirmed in an unpublished opinion.

          Lisa Bailey and Karl Sundberg married in Sweden shortly after the birth of their daughter in 2013. They divorced two years later but continued to share custody of their daughter. After the divorce, Ms. Bailey had trouble finding a suitable job and lived off child-support payments and Swedish-government aid. As a result, she sought to move back to the United States with their daughter. Mr. Sundberg opposed this move because he was unable to get a permanent U.S. visa and did not want to be separated from his child. Despite his opposition, Mr. Sundberg ultimately agreed to permit Ms. Bailey to take their daughter to America on a temporary trial basis. They memorialized this agreement in writing, providing that Ms. Bailey could take their child to the United States for “several months” beginning in August 2016.  The agreement also provided that in May 2017 they would “determine a future agreement about Lisa and [the child’s] residence and a plan for continuing shared custody of [the child].” Based on this agreement, Ms. Bailey and the child moved to Asheville, North Carolina. After the move, Mr. Sundberg maintained a relationship with his daughter over Skype and visited her in North Carolina for five weeks in December 2016. One month after Mr. Sundberg’s visit, Ms. Bailey informed him that the temporary stay would be permanent as she did not intend to move back to Sweden. In response, Mr. Sundberg demanded that Ms. Bailey return to Sweden with their child. Ms. Bailey refused. She instead went to a North Carolina state court and sought emergency custody. To prevent this, Mr. Sundberg petitioned a federal district court in North Carolina for the return of the child to Sweden so that Swedish courts could conclusively determine custody.

          The district court agreed with Mr. Sundberg. Finding that the child’s habitual residence remained in Sweden, the court ordered that she be returned there. The Fourth Circuit reviewed the court’s habitual residence finding for clear error and affirm. See Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009).

          The parties agreed that Mr. Sundberg had joint custodial rights and that he had been exercising those rights. Ms. Bailey’s only claim is that the child was not a habitual resident of Sweden at the time of retention in 2017. In this framework, the district court only had to determine whether this child was habitually resident in Sweden or the United States. The Fourth Circuit noted that from birth, the child’s “habitual residence” was Sweden. That habitual residence can change under either of two circumstances. Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005). First, habitual residence changes when parents “[share] a settled intention to abandon the former country of residence. Alternatively, it changes when there is a change in geography coupled with the passage of time “sufficient for acclimatization by the [child] to the new environment.” The first option, a shared settled intent, requires a mutual agreement to move the child permanently to the new country. This settled intent may not be shown by an agreement to move temporarily, conditionally, or on a trial basis. The district court’s conclusion that these parents lacked a shared settled intent for the child to move permanently to America was strongly supported by their written agreement. The signed agreement allowed Ms. Bailey to take the child to Asheville for “several months.” Under the agreement, the parties would re-evaluate in May 2017 to determine “a future agreement” and “plan” for the future. This agreement provided for a temporary move until the parties discussed the future in May 2017. While the agreement did not expressly state that Ms. Bailey and the child would return to Sweden, it is apparent from the agreement that the move to Asheville was not meant to be permanent.

          In addition, other circumstances reinforced the district court’s finding. While Ms. Bailey may live permanently in Sweden, Mr. Sundberg could not spend more than three months in the United States. This made it unlikely that he would allow the child’s permanent relocation. The district court’s conclusion that the agreement was temporary also found support in a welfare application Ms. Bailey submitted to the Swedish government. Before leaving Sweden, Ms. Bailey applied for Swedish welfare payments for the child. In reviewing this evidence, the district court reasonably relied on the application as reflecting the parents’ joint intent for their daughter to return to Sweden. By contrast, Ms. Bailey contended that the application merely ensured the continued payment of Swedish welfare while the child lived in America. In other words, Ms. Bailey asked the Court to find that she and Mr. Sundberg were trying to defraud the Swedish government. We hesitate to rely on her claim that the parties acted illegally. At a minimum, the district court did not err in interpreting the arrangement as supporting the temporary nature of the move. The record as a whole supported the district court’s conclusion that the parents planned to discuss in May 2017 whether the move would be permanent—a discussion that never took place, because it was short-circuited by Ms. Bailey’s unilateral decision to keep their daughter in the United States. Thus, it discerned no clear error in the district court’s finding that the parents lacked a shared settled intent to abandon Sweden as the child’s habitual residence.^*

          Turning to the second option for showing a change of habitual residence, did the child acclimatize to the United States, the Court noted that a change in habitual residence based on acclimatization requires finding that the child formed such a strong attachment that ordering her return would “be tantamount to taking the child out of the family and social environment in which its life has developed.” Maxwell, 588 F.3d at 253–54 (citing Mozes, 239 F.3d at 1081). When trying to establish acclimatization, it is not enough to show that the child’s life has “some minimal degree of settled purpose” in a new location. Maxwell, 588 F.3d at 253. Rather, “for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala, 826 F.3d at 170. This child spent the first three years of her life living in Sweden, visiting the United States for only one or two months a year. Her temporary move to Ashville lasted only nine months before the agreement expired and retention became wrongful. With family and friends in both countries, the child’s familial and social ties do not point to one country over the other. Although her inability to speak Swedish may point toward acclimatization, the district court was correct that her young age made this factor much less meaningful. See Ahmed v. Ahmed, 867 F.3d 682, 689 (6th Cir. 2017). The only other evidence that suggested acclimatization was the time spent in an American school (around nine months). Attending school for one school year did little to show that the child’s life had sufficiently “developed” in her new surroundings to make it her home. Thus, the district court did not clearly err in concluding that the child lacked the high level of attachment to the United States required to find that she had acclimatized.

          The district court’s order that Ms. Bailey pay Mr. Sundberg’s expenses totaling $20,598.98. The Fourth Circuit pointed out that when a court orders the return of a child, the court “shall order the respondent to pay necessary expenses ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3) In determining whether the circumstances of a case overcome the rebuttable presumption in favor of a fee award, the district court has limited discretion. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). An award of expenses may be “clearly inappropriate,” if for example, the respondent acted in good faith or if the award would impair the respondent’s ability to care for the child. Here, Ms. Bailey could not overcome the presumption in favor of shifting expenses. She failed to show that she acted in good faith or that any financial burden would harm the child. The district court thus appropriately awarded expenses.

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Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019)[Honduras] [Federal & State Judicial Remedies] [Subject Matter Jurisdiction] [Asylum]

          In Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019) the Court denied Respondent’s Motion to Dismiss.

           F.O. was a minor child from Honduras. Benitez-Guillen was his mother; Ordonez was his father. All three were Honduran citizens. Ordonez and Benitez-Guillen never married but lived together in Honduras at the time of F.O.’s birth. They separated in June of 2016 but shared parental authority and custody rights over F.O. In December of 2017, Benitez-Guillen fled from Honduras with F.O. On December 22, 2017, Benitez-Guillen and F.O. reached the United States border in El Paso, Texas. The Department of Homeland Security (“DHS”) determined that Benitez-Guillen and F.O. were inadmissible to the U.S. because they lacked the necessary documents. Nevertheless, the DHS did not immediately remove Benitez-Guillen and F.O., presumably because Benitez-Guillen intended to apply for asylum in the United States. The DHS then issued Benitez-Guillen and F.O. notices to appear, paroled them, and, on December 26, 2017, released Benitez-Guillen and F.O. from custody and into the United States. On October 5, 2018, Ordonez filed a petition for the return of an abducted child under the Hague Convention. On December 3, 2018, Benitez-Guillen applied for asylum under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. Benitez-Guillen and F.O. were scheduled to appear for a preliminary hearing before the Cleveland Immigration Court in June of 2019. On February 12, 2019, Benitez-Guillen filed a Motion to Dismiss under Rule 12(b)(1), arguing that the Court lacked subject matter jurisdiction over this action because the ICARA and the INA irreconcilably conflict.

          The Court observed INA provides the foundation for immigration law in the United States, including asylum. Asylum is a form of discretionary relief under section 208 of the INA, 8 U.S.C. § 1158, that precludes an alien from being subject to removal by the Attorney General, creates a path to lawful permanent resident status and citizenship, and affords a variety of other benefits. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th Cir. 2017). The INA provides the Attorney General and the Secretary of the Homeland Security with discretion to grant asylum, 8 U.S.C. § 1158(b)(1)(A). Because asylum is a discretionary form of relief from removal, the applicant bears the burden of showing both eligibility for asylum and why the Attorney General or Secretary should exercise discretion to grant this relief. 8 U.S.C. § 1158(b)(1). To qualify for asylum under the INA, an applicant must either have suffered past persecution or have a “well-founded fear of persecution on account of race, religion, nationality, membership, in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), incorporated by 8 U.S.C. § 1158(b)(1)(B)(i). A grant of asylum “does not convey a right to remain permanently in the United States....” 8 U.S.C. § 1158(c)(2). The Court indicated that it had not yet analyzed the merits of Ordonez’s petition. Further, neither the Secretary of Homeland Security nor the Attorney General had determined whether Benitez-Guillen and F.O. qualified for asylum under the INA.

          The Court rejected Benítez-Guillen’s argument that the Court had to dismiss Ordonez’s Hague petition because the potential grant of asylum conferred a right to remain in the country regardless of any potential judicial orders under the Hague Convention.  It also rejected her argument that the Court lacked subject matter jurisdiction because the INA and the ICARA irreconcilably conflict. The ICARA, however, grants this Court original jurisdiction over Hague Convention petitions. ICARA, 22 U.S.C. § 9003(a). The INA does not strip this Court of that jurisdiction. While Benitez-Guillen correctly pointed out that the INA drastically limits judicial review of asylum determinations, see 8 U.S.C. § 1252(a)(2)(A), she did not explain how a court presiding over a Hague petition constituted judicial review of one’s asylum status. When reviewing a return of child petition, courts only determine the proper country to review the custody dispute related to an allegedly abducted child. Courts analyzing these petitions do not consider the asylum status of the parties.

          Finally, the court rejected the argument that the Court lacked jurisdiction to order the return of the child based on the pending applications for asylum. Although not ripe in this case, the only federal court to address the issue of whether a grant of asylum (under the INA) bars a district court’s order to return a child (under the ICARA) explicitly held that it does not. See Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (“[t]he asylum grant does not superceded the enforceability of a district court’s order that the children should be returned to their mother, as that order does not affect the responsibilities of either the Attorney General or the Secretary of Homeland Security under the INA.”). In Sanchez, the Fifth Circuit also found that “[n]o authority has been offered to support the argument that the discretionary grant of asylum confers a right to remain in the country despite judicial orders under this Convention.”

          All the case law that the Court  found suggested that courts maintain subject matter jurisdiction over ICARA claims regardless of the asylum status of a respondent and/or minor child. That is because no federal court has found a lack of subject matter jurisdiction when presiding over a Hague petition case that also involved asylum applications. See Sanchez v. R.G.L., 761 F.3d at 510–11; Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 2008); In re Hague Child Abduction Appl., No. 08-2030, 2008 U.S. Dist. LEXIS 97048 (D. Kan. Mar. 17. 2008); Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002); Hernandez v. Pena, No. 15-3235, 2016 WL 8275092 (E.D. La. July 20, 2016). The Court could assume that the courts in those cases had subject matter jurisdiction over the Hague petitions since “federal courts have a continuing obligation to inquire into the basis of subject-matter jurisdiction to satisfy themselves that jurisdiction to entertain an action exists.” Campanella v. Commerce Exchange Bank, 137 F.3d 885, 890 (6th Cir. 1998); see Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 593 (2004) (“by whatever route a case arrives in federal court, it is the obligation of both district court and counsel to be alert to jurisdictional requirements.”); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (“every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.”).

          The Court held that it had original jurisdiction over Ordonez’s return of child petition under 22 U.S.C. § 9003(a). The INA does not strip the Court of that jurisdiction. Therefore, the Court had subject matter jurisdiction over this case.

Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) [Honduras] [Habitual residence] [Grave risk of harm] [Petition granted]

          In Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) the district court granted the Petition of Nahum Mendieta Chirinos for the return of his two children, Y.A. and I.N., to Honduras. 

          Petitioner was a resident of Honduras and resided there. Respondent and the children, Y.A. and I.N., initially resided in Honduras, but immigrated to the United States in late 2017. Respondent and the children resided in Irving, Texas.  Y.A. was born on March 29, 2012, and I.N. was born on October 8, 2015. Both children were born in Honduras and lived there until November 2017. In November 2017, Respondent and the children left Honduras and entered the United States in December 2017. [Petitioner did not give consent, written or otherwise, to Respondent’s removal of the children from Honduras. No court, in Honduras or elsewhere, had granted Respondent full custody of the children or has stripped Petitioner of his custody rights. Respondent and the children remained in the United States.  Petitioner commenced this action on October 9, 2018, seeking the return of the children to Honduras.

          The trial testimony revealed that Petitioner and Respondent met at a dance in Honduras in 2006 and began a relationship. The two were romantically involved until Petitioner illegally immigrated to the United States later that year. Petitioner remained in the United States until he was deported in 2010. After his deportation, Petitioner returned to Honduras and the romantic relationship between Petitioner and Respondent resumed. Respondent became pregnant with the couple’s daughter, Y.A., in 2011. After Respondent learned that she was pregnant, Petitioner and Respondent began living together at the home of Petitioner’s mother. Y.A. was born on March 29, 2012, and lived with Petitioner and Respondent at the home of Petitioner’s mother until at least April 2015. Petitioner testified that, on November 27, 2017, he borrowed a bicycle and went to see the children at Respondent’s grandparents’ home. Upon arriving, Petitioner allegedly heard Respondent speaking to a “coyote” with whom Respondent planned to travel to the United States. Petitioner testified that, after hearing this, he told Respondent the he did not want the children going to the United States. Petitioner testified that he returned the next day and found that Respondent and the children were gone.  Petitioner then sought legal help to secure return of the children.

          The Court found that Petitioner established a prima facie case for return under the Hague Convention and that Respondent had not shown that any defense to return applies. Therefore, the Court ordered the return of Y.A. and I.N. to Honduras. The court noted that to  establish a case for return under the Hague Convention, a petitioner must show that:  “the respondent removed or retained the child somewhere other than the child’s habitual residence”; “the removal or retention violated the petitioner’s ‘rights of custody’ under the habitual-residence nation’s laws”; and  “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). A petitioner must prove each of these elements by a preponderance of the evidence. Id.

Here, the parties stipulated that, prior to November 2017, neither child resided in any country other than Honduras. The parties also agreed that Petitioner never gave consent or otherwise acquiesced to the removal of the children from Honduras. The last location of shared intent for the children’s residence was Honduras. The parties agreed that no Honduran court had entered an order granting Respondent full custody of the children, and there was no evidence that any other formal custody agreement between the parties exists.  Therefore, the Court looked to the custody rights provided by Honduran law. Article 187 of the Honduran Family Code provides that “parental authority belongs to both parents jointly.” “Parents in the exercise of parental authority have the right to exercise guidance, care and correction of their children, and provide them in line with the evolution of their physical and mental faculties, the direction and guidance that is appropriate for their development.” Additionally, parental authority includes the right to legally represent the child, “exercise their care and custody,” feed, assist, educate, and manage their assets. Finally, Honduran law provides that, when both parents exercise parental authority, each parent has a ne exeat right: a right to consent before the other parent can take the child out of the country. Article 101 of the Honduran Code of Childhood and Adolescence requires that “[i]f parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during [a] trip [outside of Honduras].” The Supreme Court has held that a “ne exeat right is a right of custody under the Convention.” Abbott, 560 U.S. at 10. The Court found that Petitioner had custody rights in the children and that Respondent’s removal of the children violated these rights.

Finally, the Court found that Petitioner was actually exercising his custody rights at the time of the removal or would have exercised those rights but for the removal. Larbie, 690 F.3d at 307. The leading case setting out the standard under which courts are to consider this element is Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (“Friedrich II”). The court held, “[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Id. The Friedrich II court continued: [I]f 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. The Fifth Circuit has adopted the standard articulated in Friedrich II and has emphasized that “even occasional contact with [a] child constitutes ‘exercise’ of [custody] rights.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 345 (5th Cir. 2004).  The testimony of the parties was directly conflicting on this point. Petitioner testified that Respondent left his mother’s home in mid-to-late 2016 and that he visited the children almost daily thereafter. Respondent testified that she moved out in April 2015 and that Petitioner only saw the children two or three times after this date. In resolving this disagreement, the Court finds convincing and credible the accounts of the witnesses supporting Petitioner. In weighing the testimony, the Court also noted significant inconsistencies in Respondent’s version of the relevant events. The documentary evidence also supported a conclusion that Petitioner kept some contact with the children after the time that Respondent alleged that he did not. Petitioner provided a photograph showing Petitioner, Respondent, and both children together. Respondent countered that this was taken during one of the very few instances in which Petitioner saw the children after she left. Petitioner, however, introduced other photographs that show Y.A. standing in front of the distinctly colored walls of Petitioner’s mother’s home. One such photograph, posted on Respondent’s Facebook page one day after Y. A’s fourth birthday, which was March 29, 2016, clearly suggested that Petitioner remained in contact with the children—contrary to the testimony of Respondent. Petitioner also offered photographs showing I.N. in front of the same distinctly colored walls of his mother’s home, and in a distinctly colored hammock which appeared in photographs of his mother’s home. This evidence strongly contradicted Respondent’s testimony regarding the extremely limited number of times that Petitioner allegedly saw I.N.

With the above directive in mind, the Court found that Petitioner established that he was actually exercising his custody rights prior to the removal of the children. He kept at least the required occasional contact with the children that is necessary to find that he was actually exercising his custodial rights. Sealed Appellant, 394 F.3d at 345. And the evidence did not suggest that Petitioner took acts that constitute clear and unequivocal abandonment of the children. Freidrich II, 78 F.3d at 1066. Additionally, the evidence suggested that Petitioner was exercising his ne exeat right prior to the removal by withholding permission for the children to leave the country.

                   

          Respondent raised the grave risk defense. Under this defense, return may be excused where there is a “grave risk” that return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Lozano, 572 U.S. at 5. A party opposing a child’s return must prove the existence of “grave risk” by clear and convincing evidence. Madrigal v. Tellez, 848 F.3d 669, 676 (5th Cir. 2017). The alleged harm “must be a great deal more than minimal” and “greater than would normally be expected on taking a child away from one parent and passing him to another. “Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a “sustained pattern of physical abuse and/or a propensity for violent abuse.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Sustained spousal abuse can, in some instances, also create such a risk. Soto v. Contreras, 880 F.3d 706, 713 (5th Cir. 2018). The Court found that Respondent had not shown by clear and convincing evidence that return to Honduras would expose the children to a grave risk of harm. Respondent testified that Petitioner abused her physically and psychologically. However, Respondent identified only one specific instance in which Petitioner allegedly abused her physically—when Petitioner allegedly pushed her after she confronted him about his involvement with another woman. This unsupported testimony, even if taken as true, did not establish a pattern of sustained spousal abuse by clear and convincing evidence. And Respondent presents no evidence that Petitioner ever abused either of the children.

Respondent also testified that she found cocaine in Petitioner’s pocket three times, and that she worried that Y.A. would find the drugs and accidently consume them. Petitioner testified that he has never used drugs. Petitioner would take both children on rides on his motorcycle. Petitioner’s supporting witnesses all testified that, in their opinion, Petitioner was a good father. Petitioner’s girlfriend, also testified that she trusts Petitioner to be around her 13 and 10-year-old children. The Court held that the conflicting evidence regarding alleged past drug use or rides on a motorcycle did not establish the existence of such a future harm by clear and convincing evidence. Respondent did not meet her burden to prove the grave risk defense.