Recent Hague Convention District Court Cases - Preston v Preston, 2023 WL 300130 (E.D. Texas, 2023)

 

[Canada][Petition granted][ Mature Child Objection Defense][Undue influence]

    In Preston v Preston, 2023 WL 300130 (E.D. Texas, 2023) the district court granted the petition of Adam Lester Preston for Return of his nine-year-old daughter, G.I.P to Canada.

 

    Petitioner was the biological father of the minor child, G.I.P. Respondent qA the minor child’s biological mother. Petitioner and Respondent were currently legally married and were married at the time of the minor child’s birth The Parties resided together with the minor child in their marital home in Brandon, Manitoba, Canada, from around the time she was born through the date that Respondent and the minor child traveled to the United States. On July 19, 2022, Respondent and the minor child traveled from Canada to the United States, specifically Frisco, Texas, in the Eastern District of Texas, to visit extended family, with the expectation that both the minor child and Respondent would return to Canada on September 7, 2022. Respondent and the minor child did not return to Canada on that date or any date thereafter.  The parties stipulated that Canada was the habitual residence of the child under the Hague Convention on International Child Abduction; that Adam Lester Preston had rights of custody of the child under Canadian law and that Adam Lester Preston was exercising those rights of custody at the time G.I.P. was “wrongfully removed or retained,” The only defense being pursued is the Mature Child Objection Defense under Article 13.

 

    Under the Hague Convention, a court may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, art. 13. Analysis of the mature child defense is therefore a two-step process: first, the Court must determine whether G.I.P. is of sufficient age and maturity for her views to be considered, and second, the Court must evaluate the nature of the objection and determine whether it is a particularized objection or merely a general preference. Respondent must prove each element of the mature child defense by a preponderance of the evidence—that the child is mature enough for her views to be taken into account and that the child objects to return. See 22 U.S.C. § 9003(e)(2)(B);. As with each affirmative defense under the Hague Convention, the “exception is to be applied narrowly.” England v. England, 234 F.3d 268, 272 (5th Cir. 2000). Moreover, when the mature child defense is the only affirmative defense raised, as is the case here, the Court “must apply a stricter standard in considering a child’s wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his or her habitual residence.” San Martin v. Moquillaza, No. 4:14-CV-446, 2014 WL 3924646, at *7 (E.D. Tex. Aug. 8, 2014) (quoting Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007)).

 

 “ ‘[W]hether a child is of sufficient age and maturity is a fact-intensive process,’ and the Fifth Circuit has ‘declined to hold, as a matter of law, that any particular age is sufficient of insufficient to meet the defense.’ ” Esparza, 2022 WL 17724414, at *3 (quoting Dietz v. Dietz, 349 F. App’x 930, 934 (5th Cir. 2009)). The Fifth Circuit has explained that an in camera interview with the child provides a proper basis for the Court’s consideration of the age and maturity defense. Vasconcelos v. Batista, 512 F. App’x 403, 406 & n.6 (5th Cir. 2013) (citing TEX. FAM. CODE § 153.009) (“Such interviews are otherwise entirely proper under Texas law.”).

 

    In keeping with the Fifth Circuit’s guidance, the Court considered the in camera interview with the minor child], as well as the Petitioner’s and Respondent’s testimony at trial related to the minor child’s maturity. The Court did also consider the report of the ad litem  and her testimony, and the documentary evidence in the record. The Court found Respondent had not carried her burden of proof regarding the first element of the mature child defense. Following the interview of the minor child, the Court concluded that it would not be appropriate to consider G.I.P.’s views in determining whether she should be returned to Canada, as G.I.P. had not yet attained a sufficient age and degree of maturity. G.I.P. was nine years old and homeschooled. She stated her grade level varies, somewhere between third, fourth, and fifth, depending on the subject During the interview, the minor child was talkative but understandably nervous and confused by the circumstances producing this litigation. On several occasions, she lost her train of thought and asked the Court to repeat its question. While she voiced a clear opinion on certain topics, and both parents and the ad litem agree she was bright and intelligent, her demeanor, mannerisms, and interests suggest she was of average maturity for a 9-year-old. That her testimony reflected the interests and concerns of a perfectly normal child of her age was intended as no discredit to her; the mature child exception is reserved for extraordinary cases. See Friedrich v. Friedrich, 983 F.2d 1396, 1403 (6th Cir. 1993) (noting that affirmative defenses are reserved for “extraordinary cases,” since “it is the clear import of the Convention that in most cases the duty of that court, when the niceties of the convention are met, is to return the child to the country of habitual residence for resolution of the custody dispute under the laws of that country.”); Guzzo v. Hansen, No. 4:22-CV-15 PLC, 2022 WL 3081159, at *9 (E.D. Mo. Aug. 3, 2022) (“Child is intelligent and personable, but the record does not suggest that his opinions are those of an especially mature person. To the contrary, Child generally exhibits the traits of a typical ten-year-old.”); Bhattacharjee v. Craig, No. 4:21-CV-00826-SEP, 2021 WL 4504376, at *5 (E.D. Mo. Oct. 1, 2021) (“Based on the evidence presented, this is not an extraordinary case, and Respondent has not satisfied that stricter standard.”).

 

    Based on the totality of evidence, the Court found Respondent had not carried her burden to show by a preponderance of the evidence that G.I.P.  attained the age and maturity such that her views should be taken into account.  Even if the Court had found the child displayed sufficient age and maturity, the Court further found that any objection by the minor child to returning to Canada should not be considered and is the result of undue influence. See Vazquez v. Vasquez, No. 3:13-CV-1445-B, 2013 WL 7045041, at *29 (N.D. Tex. Aug. 27, 2013)

 

Recent Hague Convention District Court Cases - Munoz v Diaz, 2023 WL 139732 ( S.D. Georgia, 2023)

 

[Mexico] [Petition granted] [Attorneys fees and costs]
 

     In Munoz v Diaz, 2023 WL 139732 ( S.D. Georgia, 2023) in a prior Order in this case, the Court granted the Petition for the return of H.E.P.B. and E.I.P.B. the children of Petitioner and Respondent, to Petitioner’s custody in Mexico. Before the Court was the Petitioner’s Motion and Application for Award of Fees and Costs. Petitioner requesting $69,513.75 in attorneys’ fees and $7,077.42 in costs and expenses, for a total award request of $76,591.17. Respondent failed to file any response or to voice any opposition thereto.

 

    The Court observed that the Eleventh Circuit Court of Appeals has “read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs, and expenses would be clearly inappropriate.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). The Eleventh Circuit has suggested that there are two circumstances under which an award under Section 9007(b)(3) is “clearly inappropriate.”  The first is when “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Id. The second is when “a respondent had a good faith belief that [his] actions in removing or retaining a child were legal or justified.” The “substantial burden of establishing that a fee award is clearly inappropriate” lies with the losing respondent.

 

    The Court’s inquiry is guided by the lodestar framework. See Fuentes-Rangel, 2015 WL 12999707, at *1 (citing Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998)); see also Moonga, 2018 WL 4026020, at *2; Neves v. Neves, 637 F. Supp. 2d 322, 339 (W.D.N.C. 2009) Michael Manely was the founding attorney of the Manely Firm and has nearly thirty-three years of experience. He practiced primarily in the metro-Atlanta area, and specialized in “family law, international family law, and Hague Abduction Convention work in the United States,” and he “served as an expert witness on Hague Abduction Convention matters. He billed at a rate of $550 per hour. David Purvis was a partner in the Manely Firm, based in Savannah, Georgia, and had roughly twelve years of experience. According to his affidavit, his practice focused exclusively on family law, and he handled “numerous complex family law cases and argued before the Georgia Supreme Court on issues involving assisted reproductive technologies and other cutting[-]edge issues in family law. He billed at a rate of $420 per hour. As to Michael Manely, because of his experience with Hague Convention cases (in addition to his years of practice and his status as the founding partner in his firm), the Court found $375 per hour to be a reasonable hourly rate for him in the Savannah market. As to David Purvis, based on years of experience, the type of work he contributed to the case, and the fact that he was known to the Court to have previous experience with this specific type of case, the Court found that he should be compensated at a rate of $325 per hour. The Court awarded Petitioner $48,940.02 in fees and expenses against Respondent.

 

Recent Hague Convention District Court Cases - Krause v Krause 2023 WL 2541912 (E.D. California 2023).

 [Germany][Petitioners motion to dismiss granted]

 

 In  Krause v Krause 2023 WL 2541912 (E.D. California 2023) Petitioner filed a motion to dismiss this action pursuant to Federal Rule of Civil Procedure 41(a)(2), or in the alternative, continuing the evidentiary hearing schedule until this proceeding is dismissed. The filing indicates that Petitioner “has decided to relocate to California upon receiving an Order for reassignment to Beale [AFB] on or about May 12, 2022, even though his future does not legally moot this proceeding at this time. Mr. Krause, however, no longer desires for his Children to be sent back to Germany and will instead seek the appropriate custody relief in the appropriate courts in the United States.

 

Rule 41(a)(2) provides that: “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Respondent filed a response to the motion to dismiss. Respondent directs the Court to the Ninth Circuit’s statement that “defendants’ interests can be protected by conditioning the [41(a)(2)] dismissal without prejudice upon the payment of appropriate costs and attorney fees.” The Court recommended granting Petitioner’s motion to dismiss this action, and that this action be dismissed with prejudice. The Court recommended retaining ancillary jurisdiction to adjudicate any outstanding issues regarding the attorneys’ fee award.

 

 

Recent Hague Convention District Court Cases - Johnson v Johnson, 2023 WL 3981682 (D. Colorado, 2023)

 

[Bahamas] [Habitual residence] [Petition denied]

    In Johnson v Johnson, 2023 WL 3981682 (D. Colorado, 2023) the court denied the Petition of the Bahamian-citizen biological parents of S.J., a fifteen-year-old Bahamian citizen. Until she came to Colorado, S.J. lived her entire life in the Bahamas. Prior to S.J. moving to Colorado, Petitioners executed an Affidavit on July 14, 2021, that purported to grant Respondents “full custody care and control along with all necessary rights of guardianship” of S.J. for an indefinite duration.  The petitioners signed a revocation of the Affidavit on December 23, 2021. Petitioners acknowledged in the revocation that they had sent S.J. to reside in Colorado in August 2021. Petitioners agreed that S.J. could stay with Respondents in Colorado at least until she came home for a visit at Christmas in December 2021. The first time Petitioners alleged S.J. was wrongfully retained in the United States was December 18, 2021, which was prior to the date Petitioners executed the revocation of the Affidavit.  Both Petitioners acquiesced to S.J. staying in the United States with Respondents in May 2022, Petitioners did not request the return of S.J. until they filed this lawsuit. S.J. is presently fifteen years and six months of age. S.J. is academically and emotionally advanced for her age. S.J. clearly expressed that she does not want to return to the Bahamas and that she objects to being involuntarily returned. While S.J. lived in the Bahamas with Petitioners, her father, Duane Johnson sexually assaulted her on multiple occasions. Duane Johnson had not been charged with sexual assault in the Bahamas. According to S.J., due to his personal connections with individuals in various institutions in the Bahamas, such as the government, police, and the military, Duane Johnson is very likely unconcerned about any legal consequences as a result of his sexual abuse of S.J. because he knows no action will be taken against him. No legal protections have been implemented in the Bahamas to protect S.J. from Duane Johnson or prevent Duane Johnson from having access to her. The Court found there is a reasonable risk that Duane Johnson would sexually assault S.J. again if she is returned to the Bahamas.

 

    The Court addressed the question of S.J.’s habitual residence prior to the alleged wrongful retention. The term “habitual resident” is not defined in the Convention or ICARA. However, in Monasky v. Taglieri, 140 S. Ct. 719 (2020), the Supreme Court provided guidance for courts to determine a child’s habitual residence. A child “resides” where she lives. See Black’s Law Dictionary 1176 (5th ed. 1979). Her residence in a particular country can be deemed “habitual,” however, only when her residence there is more than transitory. “Habitual” implies “[c]ustomary, usual, of the nature of a habit.” The Supreme Court noted that the report “refers to a child’s habitual residence in fact-focused terms: ‘the family and social environment in which [the child’s] life has developed.’ ” Therefore, “what makes a child’s residence habitual is some degree of integration by the child in a social and family environment.” Supreme Court observed that “while Federal Courts of Appeals have diverged, if only in emphasis, in the standards they use to locate a child’s habitual residence ... they share a ‘common’ understanding: The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”.With respect to older children, the Supreme Court again acknowledged that locating a child’s home is a “fact-driven inquiry” and that “facts indicating acclimatization will be highly relevant.” Such facts courts have considered include a change in geography combined with the passage of an appreciable period of time, age of the child, immigration status of child and parent, academic activities, social engagements, participation in sports programs and excursions, meaningful connections with the people and places in the child’s new country, language proficiency, and location of personal belongings. “No single fact, however, is dispositive across all cases.”

 

    The Court found that Petitioners failed to satisfy the first element of their prima facie case that the Bahamas was S.J.’s habitual residence at the time of the alleged wrongful retention, which the Court has found to be December 18, 2021. The Court agreed with Respondents that since S.J. moved to Colorado in August 2021, her habitual residence had been and continues to be Colorado. After moving to Colorado, S.J. immediately began making a life for herself in Colorado and engaged in all of the normal activities of a child of her age including attending school, participating in extracurricular activities, receiving medical treatment, engaging socially with a friend group, making plans for her future, and otherwise engaging in the routines of daily life while living with Respondents in Colorado. With respect to the acclimatization factors the Supreme Court has opined should be considered in connection with a child’s habitual residence, the Court found that they strongly weighed in favor of the Court finding that Colorado was S.J.’s habitual residence. Specifically, as of the date of this Order, S.J. had been in Colorado for approximately a year and a half, which is an appreciable period of time; and even if the Court only considered the five months S.J. lived in Colorado until Petitioners deemed the retention wrongful, the Court still found that amount of time to be appreciable. She was nearly 16 and certainly old enough to express her opinion about where she wished to live, which she stated was Colorado. The Court found that Petitioners failed to establish the first element of their prima facie case. 

 

Recent Hague District Court Cases - Hernandez v Erazo, 2023 WL 2766803) (W.D. Texas, 2023)

 [Mexico][Motion for Stay pending appeal] motion denied]

     In Hernandez v Erazo, 2023 WL 2766803) (W.D. Texas, 2023) the district court denied Respondent Ruth Sarai Erazo’s Motion to Stay Enforcement of Judgment and Suspend Injunctive Relief Pending Consideration of Respondent’s Post-Judgment Motions and Appeal. The court observed that A district court has inherent authority to manage its docket, including the power to stay proceedings. Whole Woman’s Health v. Hellerstedt, No. A-16-CA-1300-SS, 2017 WL 5649477, at *1 (W.D. Tex. Mar. 16, 2017) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). The moving party bears a “heavy burden” of demonstrating that a stay is appropriate. Coastal (Bermuda) Ltd. v. E. W. Saybolt & Co., 761 F.2d 192, 203 n. 6 (5th Cir. 1985).

 

    Courts consider four factors in determining whether to grant a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Veasy v. Perry, 769 F.3d 890, 892 (5th Cir. 2014). The first two factors of the traditional standard are the most important, id., but “where there is a serious legal question involved and the balance of the equities heavily favors a stay ... the movant only needs to present a substantial case on the merits.” Weingarten Realty Inv’rs v. Miller, 661 F.3d 904, 910 (5th Cir. 2011); see also Ruiz v. Estelle, 666 F.2d 854, 856-57 (5th Cir. 1982). Above all, a stay is “an exercise of judicial discretion” and the propriety of a stay depends on the individualized circumstances of the particular case. Ind. State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960, 961 (2009).

 

    The Court found that Respondent made neither a “strong” nor a “substantial” case on the merits of her appeal. Even assuming that Erazo’s appeal presented a serious legal question, the balance of the equities did not favor a stay in this case. The Supreme Court’s decision in Chafin v. Chafin confirms that Erazo will not be irreparably harmed by the execution of the Court’s return order in this case. 568 U.S. 165, 178 (2013). Indeed, in concluding that the return of a child to his country of habitual residence does not render the underlying controversy moot, Chafin explicitly recognized the harm that an unnecessary stay can cause to the child: “In cases in which a stay would not be granted but for the prospect of mootness, a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal had little chance of success. Such routine stays ... would conflict with the Convention’s mandate of prompt return to a child’s country of habitual residence.” Likewise, Ortiz had already been injured by the loss of his child, and a stay premised on Erazo’s unpromising appeal would only further harm his interests. Finally, the relief that the Court awarded was explicitly authorized by the Hague Convention and contemplated by federal law. Saldivar v. Rodela, 879 F. Supp. 2d 610, 616 n.5 (W.D. Tex. 2012); 22 U.S.C. § 9004. Because enforcing the Hague Convention is consonant with international and federal law, the Court concluded that the public interest would be served by M.S.O.’s return to Mexico. See also Chafin, 568 U.S. at 179 (“If losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned. A mootness holding here might also encourage flight in future Hague Convention cases, as prevailing parents try to flee the jurisdiction to moot the case.”). Because Erazo had not established that the equities weigh “heavily” in favor of a stay, she must make a strong showing that she will succeed on appeal. Veasy, 769 F.3d at 892 Miller, 661 F.3d at 910. Without more, her mere disagreement with the Court’s determinations as to credibility and the weight of the evidence did not constitute a strong showing that she will succeed on appeal.

 

 

 

Recent Hague Convention District Court Cases - Hernandez v Erazo, 2023 WL 2775165 (W.D. Texas 2023)

 [Mexico][Petition granted] [Consent defense rejected][Well Settled defense rejected]

In Hernandez v Erazo, 2023 WL 2775165 (W.D. Texas 2023) Petitioner Luis Ortiz Hernandez (“Ortiz”) initiated this action to secure the return of his son, M.S.O. who was allegedly removed from Mexico without Petitioner’s consent or acquiescence by the Child’s mother, Respondent Ruth Sarai Erazo on October 9, 2021. The Child was born in Tequixquiac, Mexico on January 25, 2021, and, until his removal to the United States, lived with his parents, who never married, at Petitioner’s family residence in Mexico City, Mexico. The petitioner established a prima facie case.

 

Erazo filed an answer asserting that the Child was not wrongfully removed because Petitioner had consented to, and even helped organize—M.S.O.’s removal to the United States. According to Erazo, she and Ortiz had arranged to move their family to the United States, with Erazo and M.S.O. crossing into the United States first, to be followed by Ortiz. Erazo’s answer further asserts that the Child should not be returned to Mexico because the Petition was not filed in this case until over a year after M.S.O.’s removal and the Child is now well-settled in his new environment.

 

Based on the parties’ testimony at trial, the Court concluded that Ortiz did consent to M.S.O.’s removal from Mexico but that removal was conditioned on Ortiz’s ability to rejoin his family in the United States or, at the very least, on his continued relationship with Erazo. See Baxter, 423 F.3d at 373 (“Mrs. Baxter’s decision [to end her marriage and remain in Delaware] represented a change in plan from what she and Mr. Baxter had agreed upon before departing to Delaware. It was clear error for the District Court to find otherwise.”); Cocom v. Timofeev, No. 2:18-cv-002247, 2019 WL 76773, at *13–14 (D.S.C. Jan. 2, 2019) (condition that respondent file a petition on behalf of petitioner for immigration to the United States after respondent’s move to the United States was not met); Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (evidence established that parties never shared an intent to permanently move the children to the United States outside the confines of an intact family unit. Respondent and his mother’s self-serving, inconsistent testimony were not sufficient to establish consent defense). Erazo  failed to establish by a preponderance of the evidence that Ortiz clearly and unequivocally intended for M.S.O. to remain in the United States regardless of his relationship with Erazo or his ability to join Erazo and M.S.O. in Texas. Accordingly, Erazo failed to establish the affirmative defense of consent.

 

Erazo argued that the Petition was not filed in this case until over a year after M.S.O.’s removal, and that M.S.O. should remain in the United States because he was now well settled in his new environment. In determining whether a wrongfully-removed child is well-settled in United States, and thus may not be returned to his or her country of habitual residence, courts in the Fifth Circuit consider: (1) the child’s age; (2) stability and duration of the child’s residence in new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) respondent’s employment and financial stability; and (7) the immigration status of respondent and child. Hernandez v. Garcia Pena, 820 F.3d 782, 788 (5th Cir. 2016). With respect to the last factor, the Fifth Circuit has joined the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test: Like the other factors ... immigration status should not be considered in the abstract. In other words, proper application of the framework does not assign automatic treatment to any particular type of immigration status. Instead, we agree with the Second Circuit that an individualized, fact-specific inquiry is necessary in every case. Id. at 788–89 (citing Lozano v. Alvarez, 697 F.3d 41, 53 (2d Cir. 2012) and In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir.2009)).

 

Giving due consideration to immigration status and the other relevant factors listed above, the Court concluded that M.S.O. had not formed significant connections to his new environment. First, the Court considered the child’s age.M.S.O. was barely two years old. In other words, he was a very young child not able to form the same level of attachments and connections to a new environment as an older child. Although M.S.O.’s residence in his mother’s apartment was stable, he lived in San Antonio less than a year. M.S.O. attends daycare six days a week while she is working. The fifth factor—the Child’s participation in community activities—does not appear to be relevant here. Erazo testified that she has been employed in construction clean-up since the third day after her arrival in San Antonio and works six days a week. Finally, the seventh factor to consider is immigration status. Erazo’s immigration status is uncertain.  Balancing the above factors, the Court was not persuaded that M.S.O. has formed significant connections to his new environment and thus concluded that he was not well-settled under the Convention such that he should remain in the United States.

 

 

 

Recent Hague Convention District Court Cases - Haidar v Vazquez, 2019 WL 13254345 ( District of Columbia, 2019)

 

[France] [Petition granted][ [Wrongful retention]

 In Haidar v Vazquez, 2019 WL 13254345 ( District of Columbia, 2019) the court found that Respondent Maria Eugenia Sanin Vazquez, has wrongfully retained E.A.-H.S. within the meaning of the Convention, granted the Petition and ordered the child returned to France.

 

The Court observed that a petitioner seeking the return of a child under the Convention must prove 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). “A removal or retention is ‘wrongful’ under the Convention when (1) ‘it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and’ (2) ‘at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.’ ” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012) (Courts have fashioned a three-part test to determine whether the petitioner has made the required showing. See, e.g., Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). The petitioner must establish that (1) the child was “habitually resident” in the petitioner’s country of residence when he or she was removed or retained; (2) the removal or retention breached the petitioner’s custody rights under the law of the petitioner’s home state; and (3) the petitioner was exercising his custody rights at the time of removal or retention. See, e.g., id.; Larbie, 690 F.3d at 307; Bader v. Kramer, 484 F.3d 666, 668 (4th Cir. 2007); see also Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270–71 (3d Cir. 2007).

 

The court found that Respondent wrongfully retained E.A.-H.S. on May 7, 2019, when Respondent served upon Petitioner the Complaint for Custody that she filed in the D.C. Superior Court. Before that date, the parties enjoyed joint physical and legal custody of their child. Respondent’s Complaint for Custody, however, sought to alter the status quo, as she asked to be granted primary physical custody of E.A.-H.S. Respondent’s initiation of a legal action for greater custody rights constituted wrongful retention under the Convention. See Mozes v. Mozes, 239 F.3d 1067, 1069–70 & n.5 (9th Cir. 2001) (determining that wrongful retention occurred when the respondent asked a domestic court to grant custody of children); cf. Darin v. Olivero-Huffman, 746 F.3d 1, 10–11 (1st Cir. 2014) (finding retention occurred when respondent “made clear” to petitioner that child would be permanently resident in United States); In the matter of C (Children) U.K.S.C. 8 (2018), at 18–24 (expressly recognizing the legal concept of anticipatory retention).

 

The court further found that E.A.-H.S.’s country of “habitual residence” before May 7, 2019, was France. Courts generally make two inquiries to determine the place of habitual residence, that is, “the place where [the child] customarily lives.” Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018). The majority of courts follow the Ninth Circuit’s decision in Mozes and look primarily to the parents’ last shared “settled intention” for the child’s habitual residence. See Mozes, 239 F.3d at 1074–75.² Secondarily, they consider whether the child has become “acclimatized” to the new country.. “In the case of young children, ... it [is] most prudent to focus on the intent of the parents rather than the intent of the child in determining the child’s habitual residence.” Koch v. Koch, 450 F.3d 703, 713 (7th Cir. 2006). Here, the parties’ primary family home was in Paris, France, before they came to the United States in the summer of 2018. Both parents had their primary jobs in Paris and their daughter was enrolled in school there. When the parties left France, they agreed to come to Washington, D.C., for at least 18 months, which was the term of Respondent’s first contract with IDB. The parties’ actual anticipated length of stay in Washington, D.C., was unclear. What is clear, is that the parties did not leave France in a manner that would suggest a shared intent to relocate indefinitely to the United States. See Mozes, 239 F.3d at 1075 (“[T]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.”). Petitioner took no steps to practice medicine in the United States, the parties retained real property in Europe, they placed valuable personal property in storage in France, and there were no outward signs of a permanent relocation, such as a going-away party with close friends. The court found that the parties did not intend to abandon France as their habitual place of residence. Insofar as E.A.-H.S.’s acclimatization to the United States, E.A.-H.S. had lived in the United States for only about ten months when Respondent filed a custody action that sought to alter the status quo. Evidence of acclimatization over such a short period of time is not enough to overcome the parties’ lack of intent to abandon France as their daughter’s habitual residence. See Papakosmas v. Papakosmas, 483 F.3d 617, 626 (9th Cir. 2007) (noting that “in the absence of settled parental intent, courts should be slow to infer from such contacts [in the new country] that an earlier habitual residence has been abandoned”). Finally, there was no genuine dispute that Respondent’s retention of E.A.-H.S. breached Petitioner’s custody rights under French law, and Petitioner was exercising his custody rights at the time of retention. Respondent did not assert an affirmative defense recognized under the Convention.