Recent Hague Convention District Court Cases - Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022)

 [Belgium] [Habitual Residence] [Wrongful retention] [Petition granted]

In Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022) the  principal contested issues were  (1) whether Respondent had “wrongfully retained” A.L.S. and A.H.S. in New Jersey as of July 10, 2019 without Petitioner’s consent; (2) if she had, whether the United States or Belgium was the children’s “habitual residence” immediately prior to the date of wrongful retention; and (3) if the habitual residence was Belgium, whether Respondent had any affirmative defenses. The Court found that Respondent wrongfully retained the children in New Jersey in July 2019. Respondent asserts four affirmative defenses: intolerable situation, consent or acquiescence, the well-settled exception, and the mature child exception, but did not prove any of them. The Petition for return was granted.

Recent Hague Convention District Court Cases - Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019)

 

[Argentina] [Habitual Residence] [Age and Maturity Defense] [Petition denied]

In Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019) the Court found that: 1) Petitioner failed to establish a prima facie case because there wass not enough evidence that Argentina was the children’s habitual residence; 2) Petitioner and Respondent only intended to move to Argentina for a specific, limited duration; 3) a two-year time period falls within the language of “specific, limited” duration; 4) M.G.S., a 14 year old,  was of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina; and 5) A.C.S., a 10 year old, was is of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina. Accordingly, the Court denied Petitioner’s request to have his children returned to Argentina.

Recent Hague Convention District Court Cases - Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020)

 

[Armenia] [Rights of Custody] [Petition granted]

In Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020) the court found that, at the time of the removal, Petitioner was not exercising rights of custody, and failed to show that he would have exercised them but for the removal. The rights Petitioner exercised in the months prior to Respondent’s removal of the child were “rights of access” under the Convention, and not “rights of custody,” and, accordingly, could not support the wrongful removal claim.⁸ Nor had Petitioner demonstrated that he would have asserted custodial rights but for the removal. In light of the finding that the Petitioner was not actually exercising any rights of custody at the time of the child’s removal, the court did not need to reach the question of whether Petitioner had legal custody of the child under Armenian law at the time of the child’s removal. Having found that the removal of the child from Armenia was not wrongful, the court also does not reach Respondent’s affirmative defenses that Petitioner consented to her removal of the child from Armenia, subsequently acquiesced to the removal, poses a grave risk of harm to the child should she be returned, or undertook this litigation with unclean hands.

 

Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) [Jamaica][Petition voluntarily granted][Attorneys fees and Costs]

In Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) Petitioner brought a Petition against pro se Respondent, for the return of their child, A.C. to Jamaica, from where she was staying with Respondent in Mount Vernon. 

According to the Petition, the Parties married in Jamaica in October 2011. After they married, Petitioner continued living in Jamaica, and Respondent traveled back and forth between Jamaica and the United States. The Child was born in 2012 in Jamaica. In April 2015, Petitioner and Respondent separated. According to Petitioner, the Parties informally agreed that Petitioner would have custody of the Child and Respondent would have visitation in New York during holiday periods. From 2015 to 2020, the Child would visit Respondent during the summer and Christmas holidays for approximately four to six weeks. On August 1, 2020, the Child left Jamaica to visit Respondent in New York for the summer holiday, and the Parties had agreed that the Child would return by September so that she could start the school semester in Jamaica. By September 2020, Respondent had not returned the Child to Jamaica. According to Petitioner, she never consented to the Child staying in the United States, and Respondent refused to return the Child to Jamaica despite frequent requests for her return. Petitioner also alleged that the Child expressed to her that she wanted to return to Jamaica. According to Respondent, he believed it was safer for the Child to remain in the United States because the risk of COVID-19 was greater in Jamaica. As of November 21, 2021, the Parties were involved in divorce and custody proceedings in Jamaica. After this proceeding was commenced the parties voluntarily agreed that Respondent would return the Child to Jamaica, and the Court entered a Voluntary Return

 

 The Court observed that the Hague Convention provides that, where a court orders the return of a child under the Convention, the court: may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child. Hague Convention, art. 26 ICARA provides [a]ny court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3) (emphasis added). The Second Circuit has held that, in light of these provisions, “a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). The Second Circuit has also held that “the appropriateness of such costs depends on the same general standards that apply when ‘attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.’“ There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Ozaltin, 708 F.3d at 375. 

 

The  court found that petitioner was the prevailing party, given that Respondent voluntarily agreed to return A.C. to Jamaica pursuant to a Voluntary Return Order. Petitioner is  the prevailing party and is presumptively entitled to necessary costs. Ozaltin, 708 F.3d at 375.

 “[The] presumption of an award of expenses to a prevailing petitioner is subject to a broad caveat denoted by the words, ‘clearly inappropriate.’ ” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016). “Generally, in determining whether expenses are “clearly inappropriate,” courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.” Here there were no allegations that Petitioner committed intimate partner violence or anything close to that. Petitioner alleged that she and Respondent separated because he became “physically abusive” toward her. In considering whether an award of fees and costs would be clearly inappropriate, courts within the Second Circuit have also considered whether the respondent had “a reasonable basis for removing the children to the United States.” Ozaltin, 708 F.3d at 375. Here, Respondent alleges that he did not return the Child to Jamaica in August 2020 due to the risk of the COVID-19 pandemic, which he believed was greater in Jamaica than in the United States. Even if the Court credited this explanation it would not explain why he still had not returned the Child to Jamaica a year later, when the Petition was filed. Finally, “a respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar, 818 F.3d at 81. Here, the Court was unable to take Respondent’s ability to pay into account because the Respondent did not provide any information regarding his financial condition. See also Paulus ex rel. P.F.V. v. Cordero, No. 12-CV-986, 2013 WL 432769, at *10 (M.D. Pa. Feb. 1, 2013). That Respondent represented himself did not change this result. For example, in Gee v. Hendroffe, No. 14-CV-2795, 2015 WL 2151885, at *3 (S.D. Tex. May 7, 2015). The Court found that awarding Petitioner attorney’s fees and costs would not be clearly inappropriate. Petitioner is thus entitled to necessary fees and costs. This result was not changed by the fact that Petitioner was represented by pro bono counsel. “[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Conventions fee provision.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 209 (E.D.N.Y. 2010), aff’d, 401 F. App’x 567 (2d Cir. 2010); see also Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010); Sullivan v. Sullivan, No. CV-09-545, 2010 WL 1651994, at *1 (D. Idaho Apr. 21, 2010).

The Court found that Petitioners counsel provided competent and professional legal services throughout the course of this case, it agreed to take on the case on a pro bono basis and therefore did not expect to be paid for its services or reimbursed for its expenses. While, nevertheless, full payment of its legal fees wass appropriate to carry out ICARA’s fee-shifting provisions, full payment of costs was not. Duran-Peralta v. Luna, No. 16-CV-7939, 2018 WL 1801297, at *6 (S.D.N.Y. Apr. 2, 2018) (reducing the attorney’s fees by 30% and costs by 50% where the petitioner was represented by pro bono counsel).

 

The Court considered the amount of attorney’s fees and costs to be awarded. “As for the appropriate amount of attorneys’ fees and costs, “[b]oth the [Second Circuit] and the Supreme Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case—creates a presumptively reasonable fee.” Nissim, 2020 WL 3496988, at *2 (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011)) “Courts determine the reasonable hourly rate by considering case-specific variables such as the complexity of the case, the amount of work required, the attorney’s experience, and awards in similar cases.”  (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 189 (2d Cir. 2008)). Courts also consider whether the rates sought by the petitioner are “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006).

 

The Court observed that  courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Here, Petitioner requested the following hourly rates for five attorneys: Partner ($600/hour), Partner ($550/hour), Partner ($525/hour), Associate ($325/hour), and law school graduate ($250/hour). The Court found that a rate of $425 is appropriate for the most experienced Hague attorney who handled 30 Hague Cases. See Grano, 2021 WL 3500164, at *3 The rate of $350 was warranted for the partner with 29 years of experience primarily as a family law attorney who had litigated “several” Hague Convention cases. See Duran-Peralta, 2018 WL 1801297, at *3. $325/hour was an appropriate billing rate for the partner with 12 years of experience, which included litigating 11 Hague Convention cases. See Knigge, 2001 WL 883644, at *3. A rate of $200/hour was appropriate for the associate with three years of experience who had worked on seven Hague Convention Cases.  Finally, $175/hour was an appropriate rate for a 2021 law school graduate who, at the time that the Motion was filed, had not yet taken the New York State Bar. 

The Court considered the reasonableness of the hours expended by Petitioner’s attorneys. “In determining the number of hours reasonably required, a court should exclude ‘excessive, redundant[,] or otherwise unnecessary hours.’ ” Knigge, 2001 WL 883644, at *2 (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)). Petitioner submitted that her attorneys expended 47.3 hours working on her case, which amounted to a total of $18,830 in attorney’s fees. Petitioner reduced this number by two-thirds in her Motion, requesting a total of $12,553.33 in attorney’s fees. Although the Court did not find that the hours expended by the attorneys in this case were excessive, the noted the two-thirds reduction was nevertheless appropriate, even with the Court’s reduction in the attorneys’ billing rates given the fact that counsel  represented Petitioner on a pro bono basis,  See, e.g., In re JR, 2017 WL 74739, at *3, and the Respondent did not file a financial affidavit  The Court  therefore further reduced the fees awarded by two-thirds. This amounts to a total of $7,341.67.5 The Court added costs in the amount of $300, paid to a process server on Petitioner’s behalf. The Court awarded Petitioner a total of $7,641.67. 

Recent Hague Convention District Court Cases - Aredes v Aredes, 2022 WL 2235853 (D. Massachusetts, 2022)

 

Aredes v Aredes, 2022 WL 2235853 (D. Massachusetts, 2022)

[Brazil] [Habitual residence] [Grave risk of harm not established] [Petition granted]

Golan v. Saada, ___U.S.___, (Supreme Court, June 15, 2022) [Italy] [Petition granted] [Ameliorative measures] [Vacated and remanded]

Golan v. Saada, ___U.S.___,  (Supreme Court, June 15, 2022)
[Italy][Petition granted][Ameliorative measures] [Vacated and remanded]

Petitioner Narkis Golan was a citizen of the United States. She met respondent Isacco Saada, an Italian citizen, while attending a wedding in Milan, Italy, in 2014. Golan soon moved to Milan, and the two wed in August 2015. Their son, B. A. S., was born the next summer in Milan, where the family lived for the first two years of B. A. S.’ life.  The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair. Saada also yelled and swore at Golan and frequently insulted her and called her names, often in front of other people. Saada once told Golan’s family that he would kill her. Much of Saada’s abuse of Golan occurred in front of his son. In July 2018, Golan flew with B. A. S. to the United States to attend her brother’s wedding. Rather than return as scheduled in August, however, Golan moved into a domestic violence shelter with B. A. S. In September, Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B. A. S.

       Saada also filed a petition under the Convention and ICARA in the U. S. District Court for the Eastern District of New York, seeking an order for B. A. S.’ return to Italy. The District Court granted Saada’s petition after a 9-day bench trial. As a threshold matter, the court determined that Italy was B. A. S.’ habitual residence and that Golan had wrongfully retained B. A. S. in the United States in violation of Saada’s rights of custody. The court concluded, however, that returning B. A. S. to Italy would expose him to a grave risk of harm. The court observed that there was “no dispute” that Saada was “violent—physically, psychologically, emotionally, and verbally—to” Golan and that “B. A. S. was present for much of it.” The court described some of the incidents B. A. S. had witnessed as “chilling.”  While B. A. S. was not “the target of violence,” undisputed expert testimony established that “domestic violence disrupts a child’s cognitive and social-emotional development, and affects the structure and organization of the child’s brain.”  Records indicated that Italian social services, who had been involved with the couple while they lived in Italy, had also concluded that “ ‘the family situation entails a developmental danger’ for B. A. S.”  The court found that Saada had demonstrated no “capacity to change his behavior,” explaining that Saada “minimized or tried to excuse  his violent conduct” during his testimony and that Saada’s “own expert said . . . that [Saada] could not control his anger or take responsibility for his behavior.” 

       The court nonetheless ordered B. A. S.’ return to Italy based on Second Circuit precedent obligating it to “ ‘examine the full range of options that might make possible the safe return of a child to the home country’ ” before it could “ ‘deny repatriation on the ground that a grave risk of harm exists.’ ”  The Second Circuit based this rule on its view that the Convention requires return “if at all possible.” Blondin I, 189 F. 3d, at 248. To comply with these precedents, the District Court had required the parties to propose “ ‘ameliorative measures’ ” that could enable B. A. S.’ safe return. Saada had proposed that he would provide Golan with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges he had filed against Golan, begin cognitive behavioral therapy, and waive any right to legal fees or expenses under the Convention. The court concluded that these measures, combined with the fact that Saada and Golan would be living separately, would “reduce the occasions for violence,” thereby ameliorating the grave risk to B. A. S. sufficiently to require his return. 

The Second Circuit vacated the return order, finding the District Court’s ameliorative measures  insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.’ return. The Second Circuit affirmed.

The Supreme Court, in a unanimous opinion by Justice Sotomayor held that a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child’s safe return. Justice Sotomayor found that the Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives. Blondin I, 189 F. 3d, at 248. The Convention does not pursue return exclusively or at all costs. Rather, the Convention “is designed to protect the interests of children and their parents,” Lozano, 572 U. S., at 19 (Alito, J., concurring), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures in at least three ways. 

First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. A court may decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave. Sexual abuse of a child is one  example of an intolerable situation. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed.

 

Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. A court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.

 

Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children. Timely resolution of return petitions is important in part because return is a “provisional” remedy to enable final custody determinations to proceed.  A requirement to “examine the full range of options that might make possible the safe return of a child,” is in tension with this focus on expeditious resolution. Consideration of ameliorative measures should not cause undue delay in resolution of return petitions.

       Justice Sotomayor summarized the Courts holding as follows: “ …although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.”

In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. It was appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___. The Court held that the District Court should determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. The order of the Second Circuit was vacated and the case remanded.

 

Recent Hague Convention District Court Cases - Aldaba v Marta, 2022 WL 1641320 ( D. Kansas, 2022).

 Aldaba v Marta, 2022 WL 1641320 ( D. Kansas, 2022).

[Mexico] [Petition granted] [Grave risk of harm not established] [Respondent alleged that the children have sustained physical abuse and neglect while in Petitioner’s custody; that Mexican authorities have ignored Respondent’s complaints about the alleged abuse and neglect; and that Ciudad Juarez is a dangerous city with high crime rates. The Court held that Respondent failed to come forward with “clear and convincing evidence” proving that these three reasons, whether taken collectively or considered separately. presented a “grave risk” that returning the children to Mexico will expose them to harm or an intolerable situation.