Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. N. Y., 2023) [Spain] [Petition denied] [Well Settled][Age & Maturity]

Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. N. Y., 2023)

In Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. New York, 2023) the Court denied Angelo Lomanto’s petition for the return to Spain of R.A.L. and S.M.L., his children with Respondent Anthonia Aduke Agbelusi. The Court concluded that Agbelusi had successfully proven that the children were now settled, that the elder child was sufficiently mature and objected to return, and that the children should not be separated.

     On August 26, 2022, Lomanto filed this action in the United States District Court for the Eastern District of New York. The Eastern District transferred this case to the Southern District on August 29, 2022. Agbelusi conceded Lomanto’s prima facie case, and t this case concerned only the defenses to the presumption in favor of return under the Convention. Agbelusi had the burden of establishing these defenses. § 9003(e)(2). Absent a finding that an exception applies, a child determined to be wrongfully removed or retained must be “promptly returned” to the child’s country of habitual residence. § 9001(a)(4).

     The Court found out that R.A.L. and S.M.L. were both evaluated by Dr. Edward Fernandez, a licensed clinical psychologist. Dr. Fernandez’s assessment, after meeting with R.A.L. and S.M.L., was that R.A.L. was of “sufficient age and maturity to have his opinion considered,” that he displayed “psychological maturity and attunement to his current circumstances,” and that he “is capable of making logical decisions.” S.M.L., while of “sufficient age-related maturity,” was, by contrast, at an age where he was highly influenced by his surroundings rather than forming his own opinions. Dr. Fernandez also observed the close relationship between the two children and noted R.A.L.’s maturity and responsibility when it came to caring for his younger brother. The Court also met with both R.A.L. and S.M.L. in camera, accompanied by their court-appointed attorneys. The Court conducted this interview without Agbelusi, Lomanto, or their counsel present, and the transcript was sealed. Both parties submitted proposed questions for the interview. S.M.L., age six, was rambunctious, energetic, and guileless. His comments were overwhelmingly positive toward everyone — including his teachers, father, mother, brother, grandmother, and the Court. Given his age and attention span, the interview with S.M.L. was relatively brief. The conversation with R.A.L., age fourteen, lasted about an hour. The Court found R.A.L. to be mature, intelligent, thoughtful, engaging, and reasonable. He expressed himself clearly, honestly, and with impressive nuance and grace toward both of his parents. Based on this conversation and the conclusions of Dr. Fernandez, the Court found that R.A.L. was sufficiently mature and independent to justify crediting R.A.L.’s views. During the conversation with R.A.L., R.A.L. expressed his objection to returning to Spain and his strong desire to stay in New York. In particular, he expressed a strong objection to being parted from his mother and his life, friends, and school in New York, despite acknowledging that he missed some creature comforts like his video game set-up in Spain. R.A.L. also expressed that he did not wish to be permanently parted from either parent. R.A.L. was very patient and conscientious with his younger brother. The two were very close, and due to their affect during the interview with both children, as well as the evidence at trial, the Court found it would cause significant damage to separate the two children.

     The Court noted that the now-settled defense is available only when the proceedings were commenced more than a year after the date of the wrongful removal or retention of the child. R.A.L. informed his father on August 24, 2021, that he would be staying in New York and enrolling in school. Agbelusi told Lomanto the same late on August 24, 2021, when she was in New York, which was early August 25, 2021, in Spain. On August 25, 2021, Lomanto filed a police report in Spain stating that his children had been kidnapped “yesterday” and giving August 24, 2021, as the date of disappearance. In any event, this action was filed on August 26, 2022. Ultimately, whether the date of retention was August 24 or August 25 was legally irrelevant because either way this action was filed more than “a year” after the wrongful retention. The now-settled defense was available under the facts of this case as a matter of law. Although the Hague Convention does not define the phrase “settled,” the Second Circuit has explained that the term “should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.” Lozano v. Alvarez, 697 F.3d at 56. Although courts “may consider any factor relevant to a child’s connection to his living arrangement,” the Second Circuit has explained that courts should “generally” consider: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child attends church or participates in other community or extracurricular school activities regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Agbelusi demonstrated by a preponderance of the evidence several factors weighed strongly in favor of finding R.A.L. and S.M.L. settled, including their ages, academic performance and improvement, extracurricular activities, peer social relationships, and family relationships. In light of the strength of her showing on these factors, the Court concluded that R.A.L. and S.M.L. were settled such that repatriating them “would be disruptive with likely harmful effects.” In re Lozano, 809 F. Supp. 2d at 230.

The Court explained that Article 13 of the Hague Convention also permits a court to “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. According to the Explanatory Report, under this provision a child’s objection may be conclusive: [T]he Convention also provides that the child’s views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account...the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will. Pérez–Vera Report ¶ 30; see also Blondin v. Dubois, 238 F. 3d at 166. Based on its interview with R.A.L. and S.M.L., and the expert evaluation of Dr. Fernandez, the Court found that R.A.L. was of sufficient age and maturity to take account of his views. S.M.L., by contrast, was not of sufficient age and maturity to qualify for this defense. However, the Court concluded that separation of R.A.L. and S.M.L. would cause significant hardship and psychological harm, and ought to be avoided at all costs. “Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention.” Ermini v. Vittori, No. 12 Civ. 6100, 2013 WL 1703590, at *17 (S.D.N.Y. Apr. 19, 2013), aff’d as amended, 758 F.3d 153 (2d Cir. 2014). R.A.L. objected to being returned to Spain. The articulation of his reasoning was rational, logical, and clear. The Court was also persuaded that his objection was the product of his own considered and independent thinking, rather than a product of “undue influence” by his mother. This defense independently justified the denial of the Petition. The Court found by a preponderance of the evidence that R.A.L. and S.M.L. were settled in the United States, and that R.A.L. was of sufficient age and maturity that the Court may consider his objection to return. Lomanto’s petition for the return of R.A.L. and S.M.L. was denied.

Hernandez v Hernandez, 2023 WL 3765061 ( E.D. New York, 2023) - [Honduras][Motion to preclude in camera interview denied]

In Hernandez v Hernandez, 2023 WL 3765061 ( E.D. New York, 2023) Petitioner sought the return of two minor children, RFHA and GLHA, currently residing in the United States with their biological mother and paternal aunt. The children were removed from Honduras and brought to the United States in January 2022. Petitioner filed his petition for their return before this Court on October 27, 2022. After the Court scheduled an interview with the children Petitioner filed this motion seeking to preclude the Court from conducting an in camera interview of the minor children. Petitioner asserted that the children have not yet reached an age of maturity under the Hague Convention such that the Court should not conduct the interview or consider their testimony. The Court held that the argument was circular: without conducting some inquiry, the Court would be unable to assess the children’s maturity level and determine whether their views might be germane. “ ‘Whether a child is mature enough to have its views considered is a factual finding’ that a district court must make in light of the specific circumstances of each case.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 205 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007)). There is no bright line rule for an age at which the Court should consider a child sufficiently mature. The Court observed that Courts in this Circuit routinely conduct in camera interviews of children to assess the issue of maturity. See, e.g., Tann, 648 F. App’x at 149; Cruvinel v. Cruvinel, 2022 WL 757955, at *5 (E.D.N.Y. Jan. 10, 2022); Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336, 343 (E.D.N.Y. 2004); Johnson v. Johnson, 2011 WL 569876, at *6 (S.D.N.Y. Feb. 10, 2011); In re D.T.J., 956 F. Supp. 2d 523, 527 (S.D.N.Y. 2013); Taveras v. Morales, 22 F. Supp. 3d 219, 221 (S.D.N.Y. 2014), aff’d sub nom. Taveras ex rel. L.A.H. v. Morales, 604 F. App’x 55 (2d Cir. 2015); Royal Borough of Kensington & Chelsea v. Bafna-Louis, 2023 WL 2387385, at *1 (S.D.N.Y. Mar. 7, 2023). The petitioner’s motion constituted a preemptive effort to preclude consideration of this important issue and well-established practice. Suggesting, as the petitioner had, that the children had been subject to “undue influence” did not advance the argument. The district court denied the petitioner’s motion.

.

 

Gould v Kontogiorge, --- N.Y.S.3d ----, 2023 WL 3633433, 2023 N.Y. Slip Op. 02824 (1st Dept.,2023) - Cyprus][Necessary Costs & Fees][Evidence]

 In Gould v Kontogiorge, --- N.Y.S.3d ----, 2023 WL 3633433, 2023 N.Y. Slip Op. 02824 (1^st Dept.,2023) the mother appealed from an order of the  Supreme Court, which, inter alia,  directed her to reimburse plaintiff father, $1,900 for payments made to visitation supervisors through September 30, 2021, and, upon final resolution of this matter, to pay $4,687.90 for his and the child’s travel costs to New York from Cyprus (February 18, 2022 order). The  Appellate Division held that the motion court should not have awarded the father reimbursement for $1900 he allegedly paid to visitation supervisors, as he offered no proof of payment beyond unsupported assertions in his motion papers. His motion was unaccompanied by any documentation, or by affidavits from the visitation supervisors, substantiating the payments (Matter of Parente v. Parente, 193 AD3d 862 [2d Dept 2021] ). In turn, it vacated the finding of civil contempt (to the extent not already purged) and resultant $6,437.50 counsel fee award imposed against the mother for failing to timely reimburse the father for this expense as set forth in the motion court’s orders of September 20 and 27, 2022. It affirmed the  February 18, 2022 order, as the father did produce adequate proof of the costs of the child’s return to the U.S. from Cyprus. He submitted documentation of credit card charges for payments made to American Airlines in March 2021, on a Visa held by nonparties, and one of the nonparties is listed on the father’s Net Worth Statement as an individual who has extended him personal loans. However, that aspect of the order that limited the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since the conclusion of the Hague Convention proceedings, was vacated. It found that the court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” (Matter of Katz v. Katz, 117 AD3d 1054, 1055 [2d Dept 2014] ). However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. The mother introduced affidavit testimony of domestic violence to buttress her “grave risk of harm” defense to the child’s return pursuant to Article 13(b) of the Convention. However, the Cyprus court’s determination that she had not met her burden as to such defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court. As the U.S. Supreme Court has recognized, “return [of a child pursuant to the Hague Convention] is merely a provisional remedy that fixes the forum for custody proceedings” (Golan v. Saada, __US__, 142 S Ct 1880, 1888 [2022]).

 

Silva v. Dos Santos, --- F.4th ----, 2023 WL 3674357 (Eleventh Circuit.2023) - [Brazil] [Grave Risk of Harm] [Clear and Convincing Evidence][Corroberation]

  

        In Silva v. Dos Santos, --- F.4th ----, 2023 WL 3674357 (Eleventh Circuit,2023) in 2021, Respondent-Appellant Adriene Ferreira dos Santos left Brazil with her daughter, Y.F.G., and eventually entered the United States. The child’s father, Petitioner-Appellee Wellekson Gonçalves Silva, shared custody of Y.F.G., and he petitioned for the child’s return to Brazil under the Convention and ICARA. Following a bench trial at which both parents testified, the district court ordered that Y.F.G. be returned to Brazil. The district court expressly found Silva not to be credible, but because the district court concluded that dos Santos did not provide independent corroboration to support her own testimony, the district court found she had not established by clear and convincing evidence a “grave risk” of harm to Y.F.G. in Brazil. The Eleventh Circuit concluded that the district court applied an erroneous legal standard in weighing the conflicting testimony. It vacated the district court’s order and remand for further consideration.

 

Dos Santos and Silva met in 2011 in Brazil. They have one child together, their daughter Y.F.G., who was born in 2012 in Guanhães, Brazil. The three lived together in Guanhães until April 2020, when dos Santos and Silva separated. Dos Santos submitted that her relationship with Silva was plagued by frequent abusive incidents, which caused her to fear for her own safety and her daughter’s well-being. She testified about several of these incidents. On dos Santos’s telling, the abuse began during her pregnancy when Silva beat her, dragged her around the house, held her by her neck until she couldn’t breathe, and told her that he would remove the baby from her belly with his own hands. She testified that the beatings continued after Y.F.G. was born, including an incident where Silva tied dos Santos up with an electrical cord and told her to say goodbye to the world because it would be her last day—all of which occurred in front of a crying Y.F.G. Dos Santos also recounted several times when Silva pointed a gun at her, which she said happened so often that she “lost [her] count,” as well as an incident in which Silva dragged dos Santos by her hair in front of Y.F.G., who yelled at Silva to let dos Santos go. Dos Santos estimated that she was abused almost every day. Silva described burning the family’s kitten to Y.F.G. Silva also allegedly inflicted purely psychological harm on dos Santos, including an instance in which he used social networks to share intimate photos of dos Santos that he had taken when they lived together. After dos Santos and Silva separated in 2020, Y.F.G. initially lived with dos Santos. Later that year, dos Santos obtained a restraining order against Silva, Brazilian records indicate that Silva repeatedly violated the restraining order and that he was arrested and imprisoned under the “decree of preventative imprisonment.”¹ Following his release, Silva filed a lawsuit to confirm his custodial rights, and in June 2021, a Brazilian judge ordered that dos Santos and Silva share custody of Y.F.G. In August 2021, Dos Santos left Brazil with Y.F.G. and traveled to the United States without Silva’s consent. In August 2022, in federal district court, Silva filed a Petition under the Convention seeking Y.F.G.’s return to Brazil.

 

The district court conducted a bench trial in February 2023., Silva largely denied dos Santos’s allegations of abuse. After Silva testified and before dos Santos took the stand, the district judge said, “I want to know whether anyone actually witnessed these so-called incidents on which [dos Santos] is relying to establish an affirmative defense. That’s really all I’m interested in.” Dos Santos then testified and recounted the many instances of alleged abuse and violence, as we’ve mentioned. Besides discussing these incidents, dos Santos’s testimony also included a description of an altercation between Silva and dos Santos’s subsequent boyfriend and an incident in which Silva damaged dos Santos’s car. According to dos Santos, a neighbor captured the car damage incident on video. But neither the boyfriend nor the neighbor testified during the bench trial, nor did dos Santos offer the video recording into evidence.  Dos Santos’s counsel called two other witnesses to testify at trial. The district court then presented its factual findings. It began by expressly discrediting Silva’s testimony. Despite expressly discrediting Silva’s testimony, the district court found that dos Santos had not met her burden to prove by clear and convincing evidence that Y.F.G. was at grave risk. While dos Santos testified about several distinct incidents, “on many of the points,” the district court explained, dos Santos “was the only one who testified to these points.” The court found that it was “curious” that she presented no documents to corroborate allegations of broken ribs nor were there police reports that supported any of these incidents. And the district court noted that many of the alleged incidents occurred several years before dos Santos and Y.F.G. came to the United States. The district court granted Silva’s petition for return of the child under the Convention and ICARA. It also denied dos Santos’s motion to stay its order pending appeal. This Court then granted dos Santos’s emergency motion to stay the district court’s order pending appeal.

 

The Court said it reviews a district court’s factual findings for clear error and its legal conclusions de novo. Whether a grave risk of harm to a child exists under the terms of the Hague Convention is a mixed question of law and fact, which we review de novo.” Baran v. Beaty, 526 F.3d 1340, 1345 (11th Cir. 2008). It pointed out that this case turned solely on the application of the Convention’s “grave risk” exception. And on that point, as the party opposing return, dos Santos bears the burden to establish “by clear and convincing evidence” that the exception applies and that Y.F.G. should therefore not be returned. Id. § 9003(e)(2).

 

Here, the district court expressed “concerns about the child being returned to Brazil and being with her father” because, in the court’s view, “there are some issues with the father,” including “possible anger management issues” and “making threats to people.” But the district court felt its “hands [were] tied” because the only evidence of the incidents dos Santos described was dos Santos’s testimony. Indeed, even before dos Santos testified and the court could evaluate her credibility on the stand, the district court emphasized that “really all [it was] interested in” was “whether anyone actually witnessed these so-called incidents on which [dos Santos] is relying to establish an affirmative defense.” So even though the district court expressly found that Silva’s testimony was not credible and did not make a similar finding as to dos Santos, it concluded that dos Santos did not meet her burden to establish the harm Y.F.G. faced in Brazil.

 

This reasoning reflected two legal errors. First, given that Silva testified about the alleged abuse and the district court expressly did not believe him, under its precedent, it was not necessarily the case that dos Santos’s testimony was uncorroborated. And second, even without independent corroboration, a factfinder’s belief in a single witness’s testimony alone can be sufficient to satisfy a party’s burden to prove a fact by clear and convincing evidence. Either error alone required it to vacate and remand for further consideration under the correct standard. And both together provide all the more reason that it must remand.

 

A factfinder can use a witness’s noncredible testimony as corroborating substantive evidence against the witness’s interests, regardless of whether the case arises in the civil or criminal context. Here, that means the district court could consider its lack of faith in Silva’s testimony as corroborating substantive evidence that dos Santos’s allegations are true. In invoking the “grave risk” exception, dos Santos accused Silva of engaging in physical violence and emotional and physical abuse. Silva testified and, for the most part, denied that the alleged instances of abuse happened. But the district court expressly found that Silva was “not very credible at all.” It said that it didn’t find him to be “believable” and expressed concerns about his “issues,” including “possible anger management issues” and “making threats to people.” In other words, the district court observed Silva’s testimony and determined that he was not trustworthy. By testifying, Silva risked that the district court would not believe him or find him to be a credible witness. And because the district court did not believe him, it could have chosen to consider Silva’s testimony as corroborating substantive evidence that the alleged abusive incidents did, in fact, occur. In this way, the district court had the option of considering Silva’s testimony as corroborative of dos Santos’s testimony. In other words, dos Santos’s testimony was not necessarily uncorroborated on this record because the district court could have found that Silva’s noncredible denials and non-denial denials corroborated dos Santos’s assertions about the physical violence and physical and emotional abuse. The district court did not know that it could consider testimony it found noncredible as corroborating substantive evidence because the district court expressly said so. Because the district court did not know that it could consider Silva’s noncredible testimony as corroborating substantive evidence, it had no reason to consider—and certainly did not announce—how that information might have affected its decision.

 

The district court’s second error was concluding that a single witness’s testimony is necessarily insufficient to satisfy the clear-and-convincing-evidence standard. Neither the Convention, ICARA, nor governing precedent requires a respondent to provide independent corroboration to establish that a child would face a “grave risk” of harm if they were returned to their resident country. Instead, ICARA requires that the respondent provide “clear and convincing evidence” that the exception applies. 22 U.S.C. § 9003(e)(2). And that standard does not necessarily mandate that a witness’s testimony be corroborated to be credited by the fact finder. Dos Santos could have satisfied her burden to establish “clear and convincing evidence” based on only her own testimony. Unlike with Silva’s testimony, the district court did not discredit dos Santos’s testimony. If the district court credited her testimony and believed that Silva was, in fact, responsible for the various abusive incidents, the district court could have reasonably concluded that dos Santos established that Y.F.G.’s return to Brazil risked physical or psychological harm to the child. The district court did not know that it could rely solely on dos Santos’s testimony to find clear and convincing evidence if it was so moved. The district court erroneously believed that dos Santos’s testimony alone was insufficient to meet the clear-and-convincing standard.

The Court summarized its holding as follows:” In sum, when a factfinder does not believe an interested witness’s testimony, it may—but is not required to—consider that witness’s discredited testimony as corroborating substantive evidence that the opposite of the testimony is true. And when a single witness provides the only evidence on some point, that testimony, without corroboration, can still meet the standard of clear and convincing evidence if the factfinder concludes that it is credible. Because the district court’s reasoning did not account for these principles, it vacated the district court’s order and remanded for further consideration in light of this opinion.

 

 

Mata-Cabello v . Thula, 2023 WL 3142323 (1st Cir., 2023) - [Puerto Rico][Petition granted][Attorneys fees and costs]

    In Mata-Cabello v . Thula, 2023 WL 3142323 (1^st Cir., 2023) Taili Tee Thula appealed the denial of her request for an award of attorney’s fees, pursuant to the inherent power of the United States District Court for the District of Puerto Rico, and the costs of translation services, pursuant to 28 U.S.C. § 1920(6).

 

    The challenges on appeal arose out of a pair of actions -- one filed by Thula in the Puerto Rico courts and one filed by her husband, Asdrúbal Simón Mata-Cabello (“Mata-Cabello”), in federal court. Thula’s action in the Puerto Rico courts began when she filed a complaint against Mata-Cabello, then residing in Colombia, in the Court of First Instance of the Commonwealth of Puerto Rico on February 20, 2020. The complaint alleged causes of action for divorce under Article 96 of Puerto Rico’s Civil Code, P.R. Laws Ann. tit. 31, § 321, custody of the couple’s two minor children, child support, alimony, and “the division of the marital estate,” as well as claims under Puerto Rico’s Domestic Abuse Prevention and Intervention Act, P.R. Laws Ann. tit. 8, § 601 et seq. Thula sought further relief under the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 (“Hague Convention”), and its implementing legislation, the International Child Abduction Remedies Act (“ICARA”), 22 § U.S.C. 9001 et seq. In response, Mata-Cabello moved to dismiss Thula’s divorce and custody claims on the ground that the Court of First Instance lacked jurisdiction under Puerto Rico law to hear them because Thula had not been a resident of Puerto Rico for one full year prior to filing her complaint. Mata-Cabello also requested relief pursuant to ICARA and the Hague Convention. Specifically, he requested that the minor children be returned to their “habitual place of residence” in Colombia so that “the divorce and minor custody proceedings” could be resolved in accord with Colombia law. On October 30, 2020, the Court of First Instance granted the motion to dismiss, explaining that it lacked jurisdiction “to hear the merits of the divorce [c]omplaint filed by [Thula].” The Court of First Instance also dismissed Thula’s other claims. In doing so, the court did not address the parties’ requests for relief under ICARA and the Hague Convention. Thula filed a timely motion for reconsideration that was denied.

 

    On December 4, 2020, Mata-Cabello filed a petition under ICARA and the Hague Convention in the United States District Court for the District of Puerto Rico that named Thula as the respondent. The petition requested that the District Court order the return of the minor children to their “habitual residence” in Colombia for resolution of the custody proceedings under Colombia law. Mata-Cabello asserted in the petition that the District Court had jurisdiction over the Hague Convention petition under 22 U.S.C. § 9003. That provision grants “[t]he courts of the States and the United States district courts ... concurrent original jurisdiction of actions arising under the [Hague] Convention.”

  

    The Puerto Rico Court of Appeals, on March 12, 2021, decided Thula’s appeal from the Court of First Instance’s dismissal. It ruled that the Court of First Instance had erred by “dismissing [Thula’s] complaint in its totality, without having addressed and resolved all the claims under [its] consideration.” Accordingly, the Puerto Rico Court of Appeals ordered the Court of First Instance to: determine whether it has jurisdiction over the matter [or] the authority to address the whole matter under the protection of the Hague Convention [ ] and [ICARA]. If said forum were to determine that it has the authority over the above cited laws, it shall resolve: (1) whether Puerto Rico is the habitual resident of the minor children procreated by the parties, and (2) establish a provisional legal precedent related to custody, parent-child relationships, provisional child support and expenses. Following the Puerto Rico Court of Appeals’ ruling, the District Court entered the following order on April 23, 2021: It has come to the Court’s attention that the Puerto Rico Court of Appeals has entered its ruling on [Thula’s] appeal related to the instant matter. [Thula] is to file the resolution entered by the Puerto Rico Court of Appeals dated April 5, 2021 in case no. KLAN202001039 by April 28, 2021. A [c]ertified translation of said document is to be filed no later than May 3, 2021.

 

    After the District Court received the translated resolution, it ruled on May 4, 2021, that it would abstain because the ICARA and Hague Convention remedies “ha[d] been raised by both parties, [were] currently being litigated in the Puerto Rico [c]ourts for the past fourteen (14) months and [were] included in the [r]esolution of the Puerto Rico Court of Appeals.” Accordingly, the District Court dismissed Mata-Cabello’s action without prejudice on abstention grounds. Following the District Court’s order dismissing Mata-Cabello’s action, on May 18, 2021, Thula filed a “Motion for an Award of Attorney Fees and Costs to Prevailing Party Pursuant to Rule 54 of the Federal Rules of Civil Procedure and Applicable Law.” The motion sought an award of $28,937.50 in attorney’s fees and costs totaling $5,480.20 for “[i]nterpreter [s]ervices to translate Spanish [d]ocuments and copies” under 28 U.S.C. § 1920(6). Thula identified 22 U.S.C. § 9007(b) as the statute “entitling [her] to the award [of attorney’s fees].” Thula also moved, in the alternative, for the attorney’s fees to be awarded based on the inherent power of the District Court. She did so due to what she contended was Mata-Cabello’s “bad faith” filing of the action against her in the District Court, given that a district court has the inherent power to order a losing party to pay the “prevailing party” attorney’s fees, even in the absence of a statutory provision, when the losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons,” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59 (1975).

 

    As to the costs of translation services, Thula moved for them pursuant to 28 U.S.C. § 1920(6). That statute provides that “[a] judge or clerk of any court of the United States may tax as costs the following: ... Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.”

 

    On June 8, 2021, the District Court denied Thula’s request for the award of attorney’s fees because: (1) 22 U.S.C. § 9007(b) “provides for fees only to a prevailing petitioner; the section does not provide for fees to a prevailing respondent, and indeed, does not even mention prevailing respondents”; and (2) Mata-Cabello’s action in federal court was “brought in good  The District Court at that same time also denied Thula’s request for the costs of translation services. It did so based on Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012), in which the Supreme Court of the United States held that “costs stemming from the translation of written documents do not qualify as [’]compensation of interpreters,[’] as that term is used in 28 U.S.C. § 1920(6), and, therefore, may not be taxed as costs against a non-prevailing party. The First  Circuit affirmed for the same reasons.

 

 

Braude v. Zierler, 2023 WL 3012269 (2d Cir.,2023) - [Canada][Petiiton denied][Grave risk of Harm]

    In Braude v. Zierler, 2023 WL 3012269 (2d Cir.,2023) Gadi Braude, appealed the district court’s denial of his petition pursuant to the Hague Convention to return his two children – who resided with their mother, Dorona Mia Zierler, in the United States, to Canada. He also moved to expand the record on appeal. The Court affirmed. It observed that  “[W]hen a child has been wrongfully removed or retained from his country of habitual residence, Article 12 of the Hague Convention generally requires the deciding authority (here, a district court) to order the return of the child.” Golan v. Saada, 142 S. Ct. 1880, 1891 (2022). However, “[u]nder Article 13(b) of the Convention, ... a court is not bound to order the return of the child if the court finds that the party opposing return has established that return would expose the child to a grave risk of physical or psychological harm.” By providing that a court is not bound to order return upon making a grave-risk finding, Article 13(b) lifts the Convention’s return requirement, leaving a court with the discretion to grant or deny return. Moreover, a district court’s “discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child’s safe return.” Id. at 1893.

 

    Here, the district court denied Braude’s request for relief under the Hague Convention. Citing Braude’s “long and serious history of untreated mental[-]health issues,” his “concerning history of angry and manipulative behavior,” and his “arrest for access and possession of child pornography,” the district court found that “[t]he record reflects [the] existence of factors in combination that create[d] a grave risk of harm if the children were returned to Canada.” Furthermore, the district court found that Braude’s proposed ameliorative measures would not adequately “prioritize the children’s physical and psychological safety.” Braude appealed, asking the Court to exand the record on appeal and, on the basis of the new evidence, hold that the district court erred in its grave-risk and ameliorative-measures findings. His motions to expand the record to include two categories of documents was denied. Ordinarily, review is limited to the record on appeal, meaning the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the district clerk, see Fed. R. App. P. 10(a)(1), unless a litigant can show “extraordinary circumstances,”. Braude has not shown any such extraordinary circumstances here.

 

    First, Braude sought consideration of a Canadian child-welfare agency’s records spanning from October 2020 to August 2022 regarding Braude, Zierler, and their children (the “Agency Records”), which he allegedly requested months before the July 2022 evidentiary hearing but were not produced to him until September 2022. But the fact that the Agency Records were not available until after the district court issued its judgment is not in and of itself an extraordinary circumstance.

 

    Second, Braude sought consideration of Zierler’s family offense petition filed in New York Family Court months after the July 2022 evidentiary hearing arguing that it undermined Zierler’s prior sworn testimony regarding abuse. But the fact that post-judgment evidence, had it existed at the time of the hearing, could have been relevant, or, in this case, could have been used to impeach the credibility of an adverse witness, is not enough to justify an expansion of the record on appeal.

 

    Because Braude’s only arguments on appeal rested on the new evidence it may not consider, he abandoned all other challenges to the district court’s decision, and the Court affirmed.

 

Rosasen v Rosasen, 2023 WL 128617, Not Reported in Fed. Rptr. (9th Circuit, 2023) - [Norway][Habitual residence][Petition granted]

    In Rosasen v Rosasen, 2023 WL 128617 Not Reported in Fed. Rptr.,  (9^th Circuit, 2023) Marlon Abraham Rosasen appealed the district court’s judgment in favor of Thea Marie Rosasen on her petition under the Hague Convention.

 

    The Ninth Circuit held that the district court properly exercised its broad discretion in deciding that an evidentiary hearing was not necessary because the parties presented evidence and argument and received a meaningful opportunity to be heard. Colchester v. Lazaro, 16 F.4th 712, 729 (9th Cir. 2021) (courts “are accordingly vested with broad discretion to fashion appropriate procedures”). It held that the district court did not clearly err in finding that Norway was the habitual residence of the parties’ children. See Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) (habitual residence determination is reviewed for clear error). Any agreement between the parents to raise the children in the United States was not dispositive. The district court properly found that the children were “at home” in Norway because they attended daycare there, the majority of their close relatives lived there, and they had close relationships with Thea Rosasen’s parents and other family members in Norway who helped to care for them. It also held that the district court properly found that the exception to the remedy of return set forth in Hague Convention Article 13(a) did not apply because Thea Rosasen did not consent to the children’s relocation to the United States. See Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir. 2009) (itemizing consent or subsequent acquiescence as one exception to the Hague Convention’s “rule of return”). It also held that arlon Rosasen did not establish that the district court’s grant of the petition violated his fundamental rights under Hague Convention Article 20. See Hague International Child Abduction Convention; Text and Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986) (advising that the Article 20 exception is to be “invoked only on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process”).