In Application of Garcia v Varona--- F.Supp.2d ----, 2011 WL 3805778 (N.D.Ga.) the District Court granted the petition for return. Petitioner and Yanine Hernandez Varona ("Respondent") were the unmarried parents of two children, A.J.H. and F.J.H. Petitioner was a Spanish national. Respondent was a Cuban national, who possessed a Spanish residency card. Both were born in Seville, Spain and were Spanish nationals. Petitioner was the biological father of both children.
From April 2004 until separating in April 2010, Petitioner and Respondent lived together with the Children in Seville, Spain. Petitioner moved out of the family home in April 2010 because the situation between he and Respondent became intolerable and he had concluded that moving to his mother's house was best for the Children. Between April 2010 and the removal of the Children from Spain in December 2011, the Children resided principally with Respondent. During this period, Petitioner visited the Children every Tuesday and Thursday and the Children lived with him every other weekend. Petitioner also provided 400 Euros a month to Respondent for the support of the Children; paid for A.J.H's English classes; and paid the mortgage and a portion of the utility bills for the home in which Respondent and the Children were living. In July 2010, Respondent visited Florida with the Children to vacation with her maternal relatives there. Petitioner supported the visit to Respondent's family. While driving back from the airport following the vacation to Florida, Respondent claimed she told Petitioner that her and the Children's future was in the United States, and she claimed Petitioner said she could live where she wanted. Petitioner denied that he ever gave consent to allow Respondent to remove the Children to the United States if she chose to reside there.
Believing that Respondent may remove the Children from Spain without telling him, on September 24, 2010, Petitioner initiated a proceeding in Spain to establish "provisional measures" regarding his parental rights. On November 24, 2010, the Spanish Court issued its preliminary order regarding the Emergency Petition. The Spanish Court considered Petitioner's request for "provisional measures," "accepted that the couple have children who are minors," and required Petitioner and Respondent to appear at a hearing on December 15, 2010. The summons and complaint filed in the Spanish Court apparently was not served upon Respondent before she departed Spain. On November 30, 2010, Petitioner went to the Children's school and learned they were absent. Distressed about the location of Respondent and the well-being of the Children, Petitioner began a search to find the Children, and ultimately learned from Respondent's relatives in Spain that she had departed Seville, taking the Children with her that morning. After Petitioner learned Respondent and the Children were no longer in Seville,the parties had a telephone conversation on the evening of November 30, 2010. In the November 30, 2010, telephone conversation, Respondent did not disclose to Petitioner her plans to depart Spain the next day for the United States and to take the Children with her. On or about December 9, 2010, just days before the December 15, 2010, hearing, Respondent informed Petitioner by phone and by a letter sent by facsimile that she had moved to the United States with the Children.
On December 9, 2010, the Spanish Court, after being advised of the possibility that the Children might be removed from Spain by Respondent without the Petitioner's consent, issued a second order. The Spanish Court noted "the possible exit" from Spain of A.J.H. and F.J.H.. The court further noted that the Children had "stopped going to the school where they were registered, [which] reinforces the possibility that the mother wants to leave the country with the minors.". The court's December 9th order prohibited the departure of A.J.H. and F.J.H. from Spain, prohibited the issuance of passports to the Children, and recalled any passports issued to the Children. (Id.). The Spanish Court imposed the removal prohibition "to save, the minors' interests and their rights to relate to their father" as set forth in Article 156 of the Spanish Civil Code. The Spanish Court stated in its order: "In addition in respect
to the article 156 of the Civil Code, Paternal authority will be exercised together by both parents or just by one of them with the other's clear or tacit consent, and in this case there is evidence that the father has expressed his negativity towards leaving the country."
After departing Spain, Respondent took up residence with the Children in Georgia at the residence of Mr. Hinojosa. Respondent and the Children were currently living with Mr. Hinojosa. Respondent represented to the Court that she and Mr. Hinojosa were engaged and he was assisting Respondent in obtaining a work permit to remain in the United States. On May 12, 2011, Petitioner filed with the Office of Children's Issues, United States Department of State, an application for the return of the Children. On July 29, 2011, Petitioner filed his Motion Under the Hague Convention for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing [2],as well as his Verified Complaint and Petition for Return of the Children [1]. Petitioner sought a temporary restraining order ("TRO") and expedited hearing on his motion for injunctive relief.
A hearing was held by the Court on August 4, 2011, and an order was issued prohibiting the Children from being removed from this jurisdiction and setting an August 25, 2011, date for a trial on the merits.
The District Court observed that non-emancipated children in Spain are under the authority of their parents. C.C., Art. 154. A biological, unmarried parent has the same status under the Spanish Civil Code as a married parent or an adoptive parent. C.C., Art. 108. Article 108 of the Spanish Civil Code uses the term "filiation." C.C., Art. 108. Black's Law Dictionary defines "filiation" as "the fact or condition of being a son or daughter; relationship of a child to parent" and as "judicial determination of paternity." Black's Law Dictionary (9th ed.2009). Spanish parental authority is normally exercised by both parents, or by one of them with the express or tacit consent of the other. C .C., Art. 156. Parental authority includes the duties towards one's children of "looking after them, keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. "Separation, annulment and divorce shall not exonerate parents from their obligations to their children." C.C., Art. 92.1. When parents are living separately, parental authority will normally be exerted by the parent with whom the child is living. C.C., Art. 156. However, when parents are living separately and do not agree on a custodial arrangement, then a judge will decide which parent will take care of the children under legal age. C.C., Art. 159. A judge may also, on request of the other parent and acting on behalf of the child, assign parental authority to be exerted jointly between the parents. C.C., Arts. 156, 158. All parents under Spanish law, including those who are not granted custodial rights, have the right to keep in touch with their underage children, unless a judicial body determines otherwise. C.C., Art. 160. An additional component of parental responsibility in Spain is the doctrine of patria potestad. This doctrine is codified in the Spanish Civil Code at Articles 154 and 156 and translates, respectively, as "authority of the parents" and "parental authority." C.C., Arts. 154, 156; Patria potestad includes the right of a Spanish parent to "make decisions regarding a child's education, well-being, protection, upbringing, and place of residence." See C.C., Arts. 154, 156, 160; Moreno, 2008 WL 4716958, at * 8. Patria potestad encompasses more than the parental authorities and responsibilities in the Civil Code and extends to "parental authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside," and "decisions about ... the children's residence or those which will affect the scholar, health, and religious limits." Black's Law Dictionary defines "patria potestas" as "[t]he authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated." Black's Law Dictionary (9th ed.2009).
The Court further observed that under the Convention, rights of custody include "rights relating to the care of the person of a child," and in particular, "the right to determine the child's place of residence." These rights of custody may be based on the law of the state of habitual residence or a judicial decision having legal effect under the law of that state. Because the Children lived in Spain for their entire lives prior to being removed, Spain was their habitual residence and Spanish law applied in determining Petitioner's rights of custody.
The District Court held that the Petitioner had rights of custody under spanish law. Spanish parents have the duty of "looking after [their children], keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. Under the doctrine of patria potestad, Spanish parents also jointly possess authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside. These obligations continue even when parents separate. C.C., Art. 92.1. Although parental authority is principally exercised by the parent with whom the children are living during a separation, that authority is not exclusive to that parent and is subject to a judicial determination where there is disagreement. C.C., Arts. 154, 159. When parents cannot agree on a custodial agreement for minor children or the scope of the parental authority each may assert after separating, the Spanish Court determines these issues. C.C., Arts. 156, 159. Until that determination occurs, both parents continue to enjoy the rights of custody afforded to them as parents under Spanish law, to include those specifically enumerated in Articles 154 and 160 of the Spanish Civil Code, as well as those arising from patria potestad. See C.C., Arts. 92.1, 154, 156, 159-160. Under Spanish law, Petitioner, as a parent, enjoyed authority to communicate with and make decisions regarding the Children that "fall within the ambit of decisions relating to the 'care of the person of the child' within the meaning of Article 5 of the Convention. This decision-making parental authority qualifies as rights of custody as defined by the Convention and understood by our courts. Thus, the Court found that Petitioner established by a preponderance of the evidence that he enjoyed rights of custody under the Convention and Spanish law and that the removal of the Children from Spain violated Petitioner's rights of custody. The Court's conclusion that Petitioner had and was exercising rights of custody when the Children were removed from Spain by Respondent was further supported by the December 9, 2010, judicial decisions of the Spanish Court and Spanish Justice Court. These decisions expressly recognized Petitioner's rights of custody under Spanish law with respect to his relationship with the Children as their biological father, including the right to decide where the Children lived.
The recognition of these rights led to these Spanish judicial decisions to prevent the Children from departing Spain and to issue a criminal indictment against Respondent based on her wrongful removal of the Children from the country. In determining if there has been an exercise of rights of custody, courts within the Eleventh Circuit have favorably used the standard adopted by the Sixth Circuit that "[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find 'exercise' whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." See, e.g., Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir.1996) Once a court "determines that the parent exercised custody rights in any manner, the court should stop-- completely avoiding the question whether the parent exercised the custody rights well or badly." Friedrich, 78 F.3d at 1066. Lastly, when one parent removes the child without seeking a ne exeat holder's consent, it is clearly an instance where the right would have been "exercised but for the removal or retention." Convention, Art. 3(b); Abbott, 130 S.Ct. at 1992. The Court found that Petitioner had established by a preponderance of the evidence that he was actually exercising the rights of custody he had under Spanish law at the time of removal. Petitioner sought to be a continual presence and influence in the life of the Children up until the day of their wrongful removal, seeing them every Tuesday and Thursday, living with them every other weekend, providing a variety of financial support to them, and resorting to the Spanish Courts to formally establish his ne exeat and custody rights under Spanish law. The Court further found that Petitioner would have exercised his ne exeat right of custody, as validated by the Spanish Court's judicial decision of December 9, 2010, but for the removal of the Children from Spain without Petitioner's knowledge and without his consent.
Respondent raised the defenses of consent and abandonment. Consent or "acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070; see De Vasconcelos v. De Paula Batista, No. 4:10-CV-00628, 2011 WL 806096, at *7 (E.D.Tex. Mar. 1, 2011) (applying the Friedrich standard for acquiescence) Respondent, however, did not offer any factual basis for her claim that Petitioner consented or acquiesced to her removal of the Children to the United States beyond her self-serving testimony that Petitioner said she could take the Children anywhere. The Court, having observed Respondent testify on this matter at trial, found her testimony unconvincing and not believable. Having had the benefit of observing Petitioner during his testimony, the Court found highly credible that he did not and would not have consented to the removal of the Children from Spain. The Court found Respondent has not met her burden of proving by a preponderance
of the evidence that Petitioner consented to the removal of the Children. With regard to the affirmative defense of abandonment, this argument was, at most, based on Respondent's contention that Petitioner, having moved five minutes away to reside with his mother, was not actually exercising his custodial rights when the Children were removed. The evidence showed, however, that while Petitioner moved out, he did so in the best interests of the Children, intending to and
remaining actively engaged in their lives, including by being available to care for the Children when Respondent called to say she had to run errands or attend to other matters. A court cannot find a failure to exercise custody rights by a parent "short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066; see Moreno, 2008 WL 4716958, at *9. There was simply no evidence of abandonment in this case.
Saturday, September 3, 2011
In re Application of Lozano, 2011 WL 3667444 (S.D.N.Y.) [United Kingdom] [Well-Settled in New Environment]
In re Application of Lozano, 2011 WL 3667444 (S.D.N.Y.) the case involved a dispute between Manuel Jose Lozano ("Petitioner") and Diana Lucia Montoya Alvarez ("Respondent"), regarding their five-year-old child. On November 10, 2010, Petitioner filed a Petition for Return of Child to Petitioner pursuant to the Hague Convention requesting that the Court issue an order requiring that his child be returned to London, United Kingdom, to have a British court make a custody determination. The Court held an Evidentiary Hearing on February 2 and 3, 2011. Petitioner testified and observed
the hearing via video conference in the London office of his counsel. The court denied the petition and denied the request for counsel fees on the ground that the child had been in New York for more than a year after the wrongful removal and was well settled in her new environment.
Petitioner and Respondent, who were both originally from Colombia, met and began dating in early 2004 in London. Petitioner moved into Respondent's flat about two or three months after they began dating. At the time they met, Respondent was not working and received government benefits; Petitioner worked in maintenance for a tax office and also had a nighttime cleaning job. The Parties never married. After the Parties moved in together, Petitioner mainly financially supported the household, while Respondent was responsible for cooking, cleaning, and taking care of their child
after her birth. Respondent received incapacity benefits because she suffered from depression. Respondent testified that when she arrived in London, she became very depressed because she missed her family and was unable to obtain a professional job like she had in Colombia; after she resigned from the job that she did have, she was very frustrated and became more depressed, and her doctor prescribed her Prozac. Respondent took Prozac for several years, but stopped when she first became pregnant with Petitioner's child; however, she started taking it again in 2008 before she left Petitioner. Petitioner claimed that although they had normal couple problems, generally they were "very happy together" and had a good relationship. Although Respondent agreed that they were very happy at the beginning and describes Petitioner as charming, kind, fun, and spontaneous when she initially met him, she testified that after a month of living together, he began to treat her badly, insult her on a regular basis, and be generally very controlling. Respondent described a pattern of physical and emotional abuse. She testified that Petitioner tried to kick her in the stomach when she was pregnant, pulled her out of bed one night when she received a wrong number phone call and called her a prostitute, and raped her four times. In addition, Respondent maintained that Petitioner repeatedly told her that she was stupid and useless and that her friends and family hated her, often told her to kill herself, and threatened to take the child away from her. Petitioner denies ever hitting or raping Respondent, forbidding her from speaking to her family or friends, or pushing her while she was pregnant, and testified that he never insulted, threatened, or raised his voice to Respondent. Respondent also testified that Petitioner drank heavily and watched pornography. In contrast, Petitioner testified that he did not watch pornography , and denied that he drank a lot or had ever been so drunk that he did not know what he was doing, although he admitted that he sometimes has drunk about three beers in an evening. In May 2009 Respondent and the child moved to a shelter. After Respondent left Petitioner and took the child with her, Petitioner attempted to locate Respondent and the child through the United Kingdom court system. When Respondent moved to New York, she was treated by the therapist who diagnosed her with post-traumatic stress disorder ("PTSD") based on her symptoms, which included heightened startle response, hypervigilance, nightmares, tearfulness, and flashbacks. The Court found that Petitioner's claims that he never insulted or mistreated Respondent in any manner were not credible. The Court found that there was insufficient evidence to conclude that Petitioner either sexually or otherwise physically abused the child in any manner.
In November 2008, Respondent came to New York to visit her sister Maria and attempt to gather evidence to support Respondent's and Petitioner's case regarding a problematic loan. During this time, the child stayed in London with Petitioner and Petitioner's mother who was visiting from Colombia. Petitioner claimed that when he picked Respondent up at the airport upon her return, Respondent "was a completely different person" than when she left London a week earlier and she demanded that Petitioner and his mother leave their house immediately. Respondent testified that when she returned from New York, Petitioner and his mother were acting very suspicious and the child was acting fearful and strange around Petitioner; Respondent became extremely scared, and decided to leave. On the following day, November 19, 2008, Respondent left to bring the child to nursery school and never returned. Respondent and the child resided at a shelter, from November 24, 2008, until July 3, 2009. On July 3, 2009, Respondent and the child left the United Kingdom, traveling first to France and then to New York, where they had lived since July 8, 2009. Petitioner described a multitude of channels that he pursued in an attempt to find his child and resolve the situation. After having "exhausted all possibility that [the child] was still in the [United Kingdom]," on March 15, 2010, Petitioner filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom; the application was sent to the United States Department of State Office of Children's Issues on March 23, 2010. The application detailed more of the steps that Petitioner undertook to find Respondent and the child and indicated that Petitioner believed that Respondent and the child were in Manhattan.
Since arriving in New York, Respondent and the child lived with Respondent's sister Maria, Maria's partner, Respondent's niece (Maria's daughter), and the niece's two-year-old daughter. Maria worked as a nanny for the same family for four years; Maria's partner owned a grocery business. Maria financially supported Respondent and the child and, in return, Respondent cooked, cleaned, and took care of the children.
Respondent has not had a job since she came to the United States. Because Respondent and the child had British passports, they were allowed to enter the United States without a visa; however, Respondent testified that they are currently overstayed, and have been since October 2009. Respondent testified that she was consulting with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen. The child attended the same school since she and Respondent arrived in New York and was enrolled in kindergarten; according to Respondent, the child was doing very well in school. On the Academic Standards Report at the end of that school year, the teacher wrote that the child "has made a lot of progress socially [and] is beginning to assert herself more [; she] is progressing academically as well." After arriving in New York, Respondent and the child began receiving therapy from a psychiatric social worker at a family medical clinic in July 2009.
The District Court found that Petitioner has adequately established a prima facie case of wrongful retention under the Hague Convention. Respondent did not attempt to argue otherwise. The court observed that the Court "is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). Respondent had to establish this defense by "clear and convincing evidence." 42 U.S.C. s 11603(e)(2)(A). This defense recognizes that "[t]he interest of the child in not being removed from its habitual residence ... gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation." Blondin v. Dubois, 238 F.3d 153, 161 (2d Cir.2001) ("Blondin IV" ). However, "[t]he level of risk and danger required to trigger this exception has consistently been held to be very high." The Court found that Petitioner's claim that he never mistreated Respondent through any verbal abuse was not credible. However, the Court was presented with much less evidence regarding any physical abuse by Petitioner, and, the evidence was entirely insufficient to find that Petitioner abused the child physically, sexually, or psychologically. Although the therapist testified that the child clearly showed signs of trauma when they first met, the therapist was unable to pinpoint the source of that trauma. There was reason to believe that, whether in combination or in isolation, the time the child spent at the shelter, as well as being uprooted from her life in the United Kingdom, could have been the cause, or the primary cause, of the trauma that the child was suffering upon her arrival in the United States. The Court therefore agreed with the Petitioner’s expert’s conclusion that based on the record before the Court, it was impossible to determine, by even a preponderance of the evidence, that the child's trauma was caused by anything Petitioner did to the child. The Court therefore agreed with Petitioner that Respondent failed to carry her burden of establishing by clear and convincing evidence that returning to the United Kingdom would pose a grave risk of harm to the child. There was insufficient evidence that merely returning to the United Kingdom--even if that country was the site of some of the child's trauma, whether caused by the child witnessing Petitioner's abuse of Respondent or by being in the shelter--in and of itself would present a grave risk.
The Court noted that the Convention provides that where a period of more than one year has elapsed between the dates of the wrongful removal of the child and "the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is," the judicial or administrative authority "shall [ ] order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Hague Convention, art. 12. For this defense to apply, Respondent must persuade the Court, by a preponderance of the evidence, that the child should not be returned to the United Kingdom because the child has been in New York for more than one year and has become settled. See 42 U.S.C. s 11603(e)(2)(B).
In the instant case, the Petition was filed more than a year after the wrongful removal of the child. The child was removed from the United Kingdom in July 2009 and Petitioner did not file his Petition in this Court until November 10, 2010. Petitioner asserted that the one-year period should be equitably tolled because Respondent concealed the whereabouts of the child from Petitioner, preventing him from timely filing his Petition. Petitioner maintained that the Article 12 defense was not available to Respondent and that the Court must order the child's return. The Court observed that neither the Hague Convention nor ICARA mention equitable tolling, and the Second Circuit has not considered whether the one-year period in Article 12 may be tolled. However, a number of courts outside the Second Circuit have applied equitable tolling, concluding that refusing to toll the one-year period would create incentives for abducting parents to conceal the child's whereabouts until after one year had lapsed and thus reward the behavior the Convention seeks to prevent. However, the only court within the Second Circuit to consider this issue determined that equitable tolling does not apply to the Article 12 settled defense. See Matovski, 2007 WL 2600862, at *11. The Matovski court concluded that "the one-year period in Article 12 is not a limitations period, nor is it analogous to a limitations period [because] ... '[a] petition for return of the child is not barred if it is filed over one year from the date of removal.' "
The District Court agreed with the conclusion reached in Matovski finding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. It was clear, from both the wording of Article 12 and the Perez-Vera Report, that the purpose of the settled defense is not to give petitioners a reasonable amount of time in which to bring their claims, as is the function of most statutes of limitations. Instead, the purpose is to take into account that if the child has become settled, its interests have to be weighed. And the Convention decided that after one year had passed, the child's interests would almost presumptively carry more weight than the interest of a petitioner. Because the child had been in New York for approximately sixteen months at the time the Petition was filed, the Court must consider whether the child had become settled in her new environment. To establish the merits of this exception, Respondent "had to show by a preponderance of the evidence that the child was in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." Koc, 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at * 13 ("Respondent must marshal substantial evidence of the child's significant connections to New York." Among the factors that courts have considered in determining whether or not a child has become settled are: "the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's employment[;] and whether the child has friends and relatives in the new area." Koc 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at *13; Reyes Olguin, 2005 WL 67094, at *8. Here, a number of these factors supported a finding that the child was now settled. At the time Petitioner initiated this action, by all indications, the child had been living in one place for sixteen months, which is a long period of time in the life of a five-year-old. Since they arrived in New York, Respondent and the child had lived in the same location with Respondent's sister, the sister's partner, Respondent's niece, and the niece's daughter; the child had become close to this family, and also saw other extended family who lived nearby on the weekends. Her school records showed that she was enrolled in pre-kindergarten last year, and currently attended kindergarten at the same school. The child's pre-kindergarten report cards stated that she was progressing socially and academically. Respondent testified that the child had made friends at school with whom she sometimes played after school and met at the park or library, went to ballet class, and attended church. Both experts testified that Respondent appropriately cares for the child, and the child told Petitioner’s expert, Dr. Fraser that she loved where she lived and was happy in New York. The therapist also testified that the child had improved dramatically since she began seeing her and seemed to be doing very well here in her current environment. However, Respondent was unemployed and she and the child are entirely dependent on Respondent's sister Maria and Maria's partner for financial support. The Court pointed out that in Matovski, the court concluded, in similar circumstances to here, that the mother's inconsistent employment history was not a major factor because the children and mother were financially supported by the children's grandparents, with whom the children and mother lived, rendering their overall financial stability "reasonably assured." Matovski, 2007 WL 2600862, at * 14 (determining that overall, there was "substantial, persuasive evidence" that the children had significant connections to their new environment because they had lived in the same home since arriving in New York, consistently attended school and activities with the same classmates, socialized and played with many friends, and were attached to their large extended family in New York). In contrast, in Koc, the court viewed the mother and child's financial dependence on the mother's parents as a negative factor, see Koc, 181 F.Supp.2d at 154, but there they also received support from public services, and had only lived with the child's grandparents for the first three months of the twenty-seven months that they had been living in New York prior to the filing of the petition. Under the circumstances presented the Court found there was nothing to suggest that the financial and other support that the child and Respondent were receiving from Maria's family was in jeopardy, or is unlikely to continue for the foreseeable future. There was also some concern as to the immigration status of Respondent and the child. They have both overstayed their visas and were not legally in the United States. In Koc, the court, in determining that the child was not settled, took into account that she and her mother had overstayed their visas and were in the country illegally, which the court noted would make it virtually impossible
for the child to see her father if she remained in the country. However, the Ninth Circuit has rejected the idea that immigration status should render an otherwise settled child not settled, concluding that immigration status should only be a significant factor in the settled analysis if there is an immediate, concrete threat of deportation. See B. del C.S.B., 559 F.3d at 1010-14. Here, there was no indication that Respondent and the child faced an imminent, or any, threat of deportation, and there was unrefuted testimony from Respondent that she was looking into methods to gain legal status, including having her sister Maria, who was a United States citizen, sponsor Respondent and the child for citizenship. There was nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent was likely to upset the stability of the child's life here in New York.
The child's life does not have to perfect for her to be settled. Viewing the totality of the circumstances, the description of the child's life, as presented to the Court, suggests stability in her family, educational, social, and most importantly, home life the Court concluded that the preponderance of the evidence demonstrated that the child was settled in her current environment. To uproot her once again would be extremely disruptive; she reached the "point at which [she has] become so settled in [her] new environment that repatriation [is] not ... in [her] best interest." Blondin IV, 238 F.3d at 164. Accordingly, the Court found that the elements of the Article 12 defense had been met.
The Court chose not to exercise its discretion to order the child returned even though she was now settled. Accordingly, the Petition was denied. Because the Court was denying the Petition, Petitioner's request for an order directing Respondent to pay Petitioner's legal costs and fees was also denied.
the hearing via video conference in the London office of his counsel. The court denied the petition and denied the request for counsel fees on the ground that the child had been in New York for more than a year after the wrongful removal and was well settled in her new environment.
Petitioner and Respondent, who were both originally from Colombia, met and began dating in early 2004 in London. Petitioner moved into Respondent's flat about two or three months after they began dating. At the time they met, Respondent was not working and received government benefits; Petitioner worked in maintenance for a tax office and also had a nighttime cleaning job. The Parties never married. After the Parties moved in together, Petitioner mainly financially supported the household, while Respondent was responsible for cooking, cleaning, and taking care of their child
after her birth. Respondent received incapacity benefits because she suffered from depression. Respondent testified that when she arrived in London, she became very depressed because she missed her family and was unable to obtain a professional job like she had in Colombia; after she resigned from the job that she did have, she was very frustrated and became more depressed, and her doctor prescribed her Prozac. Respondent took Prozac for several years, but stopped when she first became pregnant with Petitioner's child; however, she started taking it again in 2008 before she left Petitioner. Petitioner claimed that although they had normal couple problems, generally they were "very happy together" and had a good relationship. Although Respondent agreed that they were very happy at the beginning and describes Petitioner as charming, kind, fun, and spontaneous when she initially met him, she testified that after a month of living together, he began to treat her badly, insult her on a regular basis, and be generally very controlling. Respondent described a pattern of physical and emotional abuse. She testified that Petitioner tried to kick her in the stomach when she was pregnant, pulled her out of bed one night when she received a wrong number phone call and called her a prostitute, and raped her four times. In addition, Respondent maintained that Petitioner repeatedly told her that she was stupid and useless and that her friends and family hated her, often told her to kill herself, and threatened to take the child away from her. Petitioner denies ever hitting or raping Respondent, forbidding her from speaking to her family or friends, or pushing her while she was pregnant, and testified that he never insulted, threatened, or raised his voice to Respondent. Respondent also testified that Petitioner drank heavily and watched pornography. In contrast, Petitioner testified that he did not watch pornography , and denied that he drank a lot or had ever been so drunk that he did not know what he was doing, although he admitted that he sometimes has drunk about three beers in an evening. In May 2009 Respondent and the child moved to a shelter. After Respondent left Petitioner and took the child with her, Petitioner attempted to locate Respondent and the child through the United Kingdom court system. When Respondent moved to New York, she was treated by the therapist who diagnosed her with post-traumatic stress disorder ("PTSD") based on her symptoms, which included heightened startle response, hypervigilance, nightmares, tearfulness, and flashbacks. The Court found that Petitioner's claims that he never insulted or mistreated Respondent in any manner were not credible. The Court found that there was insufficient evidence to conclude that Petitioner either sexually or otherwise physically abused the child in any manner.
In November 2008, Respondent came to New York to visit her sister Maria and attempt to gather evidence to support Respondent's and Petitioner's case regarding a problematic loan. During this time, the child stayed in London with Petitioner and Petitioner's mother who was visiting from Colombia. Petitioner claimed that when he picked Respondent up at the airport upon her return, Respondent "was a completely different person" than when she left London a week earlier and she demanded that Petitioner and his mother leave their house immediately. Respondent testified that when she returned from New York, Petitioner and his mother were acting very suspicious and the child was acting fearful and strange around Petitioner; Respondent became extremely scared, and decided to leave. On the following day, November 19, 2008, Respondent left to bring the child to nursery school and never returned. Respondent and the child resided at a shelter, from November 24, 2008, until July 3, 2009. On July 3, 2009, Respondent and the child left the United Kingdom, traveling first to France and then to New York, where they had lived since July 8, 2009. Petitioner described a multitude of channels that he pursued in an attempt to find his child and resolve the situation. After having "exhausted all possibility that [the child] was still in the [United Kingdom]," on March 15, 2010, Petitioner filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom; the application was sent to the United States Department of State Office of Children's Issues on March 23, 2010. The application detailed more of the steps that Petitioner undertook to find Respondent and the child and indicated that Petitioner believed that Respondent and the child were in Manhattan.
Since arriving in New York, Respondent and the child lived with Respondent's sister Maria, Maria's partner, Respondent's niece (Maria's daughter), and the niece's two-year-old daughter. Maria worked as a nanny for the same family for four years; Maria's partner owned a grocery business. Maria financially supported Respondent and the child and, in return, Respondent cooked, cleaned, and took care of the children.
Respondent has not had a job since she came to the United States. Because Respondent and the child had British passports, they were allowed to enter the United States without a visa; however, Respondent testified that they are currently overstayed, and have been since October 2009. Respondent testified that she was consulting with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen. The child attended the same school since she and Respondent arrived in New York and was enrolled in kindergarten; according to Respondent, the child was doing very well in school. On the Academic Standards Report at the end of that school year, the teacher wrote that the child "has made a lot of progress socially [and] is beginning to assert herself more [; she] is progressing academically as well." After arriving in New York, Respondent and the child began receiving therapy from a psychiatric social worker at a family medical clinic in July 2009.
The District Court found that Petitioner has adequately established a prima facie case of wrongful retention under the Hague Convention. Respondent did not attempt to argue otherwise. The court observed that the Court "is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). Respondent had to establish this defense by "clear and convincing evidence." 42 U.S.C. s 11603(e)(2)(A). This defense recognizes that "[t]he interest of the child in not being removed from its habitual residence ... gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation." Blondin v. Dubois, 238 F.3d 153, 161 (2d Cir.2001) ("Blondin IV" ). However, "[t]he level of risk and danger required to trigger this exception has consistently been held to be very high." The Court found that Petitioner's claim that he never mistreated Respondent through any verbal abuse was not credible. However, the Court was presented with much less evidence regarding any physical abuse by Petitioner, and, the evidence was entirely insufficient to find that Petitioner abused the child physically, sexually, or psychologically. Although the therapist testified that the child clearly showed signs of trauma when they first met, the therapist was unable to pinpoint the source of that trauma. There was reason to believe that, whether in combination or in isolation, the time the child spent at the shelter, as well as being uprooted from her life in the United Kingdom, could have been the cause, or the primary cause, of the trauma that the child was suffering upon her arrival in the United States. The Court therefore agreed with the Petitioner’s expert’s conclusion that based on the record before the Court, it was impossible to determine, by even a preponderance of the evidence, that the child's trauma was caused by anything Petitioner did to the child. The Court therefore agreed with Petitioner that Respondent failed to carry her burden of establishing by clear and convincing evidence that returning to the United Kingdom would pose a grave risk of harm to the child. There was insufficient evidence that merely returning to the United Kingdom--even if that country was the site of some of the child's trauma, whether caused by the child witnessing Petitioner's abuse of Respondent or by being in the shelter--in and of itself would present a grave risk.
The Court noted that the Convention provides that where a period of more than one year has elapsed between the dates of the wrongful removal of the child and "the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is," the judicial or administrative authority "shall [ ] order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Hague Convention, art. 12. For this defense to apply, Respondent must persuade the Court, by a preponderance of the evidence, that the child should not be returned to the United Kingdom because the child has been in New York for more than one year and has become settled. See 42 U.S.C. s 11603(e)(2)(B).
In the instant case, the Petition was filed more than a year after the wrongful removal of the child. The child was removed from the United Kingdom in July 2009 and Petitioner did not file his Petition in this Court until November 10, 2010. Petitioner asserted that the one-year period should be equitably tolled because Respondent concealed the whereabouts of the child from Petitioner, preventing him from timely filing his Petition. Petitioner maintained that the Article 12 defense was not available to Respondent and that the Court must order the child's return. The Court observed that neither the Hague Convention nor ICARA mention equitable tolling, and the Second Circuit has not considered whether the one-year period in Article 12 may be tolled. However, a number of courts outside the Second Circuit have applied equitable tolling, concluding that refusing to toll the one-year period would create incentives for abducting parents to conceal the child's whereabouts until after one year had lapsed and thus reward the behavior the Convention seeks to prevent. However, the only court within the Second Circuit to consider this issue determined that equitable tolling does not apply to the Article 12 settled defense. See Matovski, 2007 WL 2600862, at *11. The Matovski court concluded that "the one-year period in Article 12 is not a limitations period, nor is it analogous to a limitations period [because] ... '[a] petition for return of the child is not barred if it is filed over one year from the date of removal.' "
The District Court agreed with the conclusion reached in Matovski finding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. It was clear, from both the wording of Article 12 and the Perez-Vera Report, that the purpose of the settled defense is not to give petitioners a reasonable amount of time in which to bring their claims, as is the function of most statutes of limitations. Instead, the purpose is to take into account that if the child has become settled, its interests have to be weighed. And the Convention decided that after one year had passed, the child's interests would almost presumptively carry more weight than the interest of a petitioner. Because the child had been in New York for approximately sixteen months at the time the Petition was filed, the Court must consider whether the child had become settled in her new environment. To establish the merits of this exception, Respondent "had to show by a preponderance of the evidence that the child was in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." Koc, 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at * 13 ("Respondent must marshal substantial evidence of the child's significant connections to New York." Among the factors that courts have considered in determining whether or not a child has become settled are: "the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's employment[;] and whether the child has friends and relatives in the new area." Koc 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at *13; Reyes Olguin, 2005 WL 67094, at *8. Here, a number of these factors supported a finding that the child was now settled. At the time Petitioner initiated this action, by all indications, the child had been living in one place for sixteen months, which is a long period of time in the life of a five-year-old. Since they arrived in New York, Respondent and the child had lived in the same location with Respondent's sister, the sister's partner, Respondent's niece, and the niece's daughter; the child had become close to this family, and also saw other extended family who lived nearby on the weekends. Her school records showed that she was enrolled in pre-kindergarten last year, and currently attended kindergarten at the same school. The child's pre-kindergarten report cards stated that she was progressing socially and academically. Respondent testified that the child had made friends at school with whom she sometimes played after school and met at the park or library, went to ballet class, and attended church. Both experts testified that Respondent appropriately cares for the child, and the child told Petitioner’s expert, Dr. Fraser that she loved where she lived and was happy in New York. The therapist also testified that the child had improved dramatically since she began seeing her and seemed to be doing very well here in her current environment. However, Respondent was unemployed and she and the child are entirely dependent on Respondent's sister Maria and Maria's partner for financial support. The Court pointed out that in Matovski, the court concluded, in similar circumstances to here, that the mother's inconsistent employment history was not a major factor because the children and mother were financially supported by the children's grandparents, with whom the children and mother lived, rendering their overall financial stability "reasonably assured." Matovski, 2007 WL 2600862, at * 14 (determining that overall, there was "substantial, persuasive evidence" that the children had significant connections to their new environment because they had lived in the same home since arriving in New York, consistently attended school and activities with the same classmates, socialized and played with many friends, and were attached to their large extended family in New York). In contrast, in Koc, the court viewed the mother and child's financial dependence on the mother's parents as a negative factor, see Koc, 181 F.Supp.2d at 154, but there they also received support from public services, and had only lived with the child's grandparents for the first three months of the twenty-seven months that they had been living in New York prior to the filing of the petition. Under the circumstances presented the Court found there was nothing to suggest that the financial and other support that the child and Respondent were receiving from Maria's family was in jeopardy, or is unlikely to continue for the foreseeable future. There was also some concern as to the immigration status of Respondent and the child. They have both overstayed their visas and were not legally in the United States. In Koc, the court, in determining that the child was not settled, took into account that she and her mother had overstayed their visas and were in the country illegally, which the court noted would make it virtually impossible
for the child to see her father if she remained in the country. However, the Ninth Circuit has rejected the idea that immigration status should render an otherwise settled child not settled, concluding that immigration status should only be a significant factor in the settled analysis if there is an immediate, concrete threat of deportation. See B. del C.S.B., 559 F.3d at 1010-14. Here, there was no indication that Respondent and the child faced an imminent, or any, threat of deportation, and there was unrefuted testimony from Respondent that she was looking into methods to gain legal status, including having her sister Maria, who was a United States citizen, sponsor Respondent and the child for citizenship. There was nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent was likely to upset the stability of the child's life here in New York.
The child's life does not have to perfect for her to be settled. Viewing the totality of the circumstances, the description of the child's life, as presented to the Court, suggests stability in her family, educational, social, and most importantly, home life the Court concluded that the preponderance of the evidence demonstrated that the child was settled in her current environment. To uproot her once again would be extremely disruptive; she reached the "point at which [she has] become so settled in [her] new environment that repatriation [is] not ... in [her] best interest." Blondin IV, 238 F.3d at 164. Accordingly, the Court found that the elements of the Article 12 defense had been met.
The Court chose not to exercise its discretion to order the child returned even though she was now settled. Accordingly, the Petition was denied. Because the Court was denying the Petition, Petitioner's request for an order directing Respondent to pay Petitioner's legal costs and fees was also denied.
Wednesday, August 31, 2011
Judge v Williams, 2011 WL 3759476 (E.D.N.C.) [Ireland] [ Attorneys Fees and expenses]
In Judge v Williams, 2011 WL 3759476 (E.D.N.C.) the matter was before the court on Petitioner Brian Anthony Judge's Application for an award of Expenses following the court's order, after a hearing, directing the return of his minor child, E.L.W.J. to the Republic of Ireland. On August 4, 2011, Petitioner timely filed his Application for Award of Expenses, pursuant to 42 U.S.C. 11607(b)(3), along with his affidavit and supporting documentation and an affidavit from his counsel.
The District Court observed that ICARA provides: Any 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 the 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. 42 U.S.C. 11067(b)(3). It concluded that under the plain language of the statute, the court had the duty to order the payment of necessary expenses and legal fees unless Respondent satisfied her burden of showing that such an order would be clearly inappropriate. In this case, Respondent, who appeared at the hearing without counsel, failed to offer any response, and therefore the court could not find that she had met her burden in establishing that an award of expenses to Petitioner was clearly inappropriate. Petitioner sought $3,974.86 for expenses incurred by him personally, and submitted an affidavit supported by receipts. His expenses included the costs Petitioner incurred flying to North Carolina and back to the Republic of Ireland along with the costs of his lodging in North Carolina ($2,648.63), the costs Petitioner incurred flying E.L.W.J. from North Carolina to the Republic of Ireland ($844.30), and the cost of Petitioner's rental car in North Carolina ($481.93). The court found all these expenses to be reasonable and necessarily related to Petitioner's efforts to have E.L.W.J. returned to the Republic of Ireland. Petitioner also sought $673.84 for expenses incurred on his behalf by the law firm Womble Carlyle Sandridge & Rice, PLLC . Petitioner's counsel represented Petitioner pro bono in this proceeding, and accordingly, Petitioner was not seeking attorney's fees. He was seeking the expenses WCSR incurred on his behalf, including the filing fee for this action ($350.00), the cost of photocopies ($64.10), and his counsel's travel expenses to attend the hearing ($259.74). Petitioner's counsel submitted an affidavit detailing those expenses. The court found the expenses were reasonable and were related to the return of E.L.W.J. Accordingly, the court found that the total amount of $4,648.70 in expenses incurred by Petitioner or on his behalf to be reasonable and necessary to his efforts to have his child returned to the Republic of Ireland.
The District Court observed that ICARA provides: Any 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 the 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. 42 U.S.C. 11067(b)(3). It concluded that under the plain language of the statute, the court had the duty to order the payment of necessary expenses and legal fees unless Respondent satisfied her burden of showing that such an order would be clearly inappropriate. In this case, Respondent, who appeared at the hearing without counsel, failed to offer any response, and therefore the court could not find that she had met her burden in establishing that an award of expenses to Petitioner was clearly inappropriate. Petitioner sought $3,974.86 for expenses incurred by him personally, and submitted an affidavit supported by receipts. His expenses included the costs Petitioner incurred flying to North Carolina and back to the Republic of Ireland along with the costs of his lodging in North Carolina ($2,648.63), the costs Petitioner incurred flying E.L.W.J. from North Carolina to the Republic of Ireland ($844.30), and the cost of Petitioner's rental car in North Carolina ($481.93). The court found all these expenses to be reasonable and necessarily related to Petitioner's efforts to have E.L.W.J. returned to the Republic of Ireland. Petitioner also sought $673.84 for expenses incurred on his behalf by the law firm Womble Carlyle Sandridge & Rice, PLLC . Petitioner's counsel represented Petitioner pro bono in this proceeding, and accordingly, Petitioner was not seeking attorney's fees. He was seeking the expenses WCSR incurred on his behalf, including the filing fee for this action ($350.00), the cost of photocopies ($64.10), and his counsel's travel expenses to attend the hearing ($259.74). Petitioner's counsel submitted an affidavit detailing those expenses. The court found the expenses were reasonable and were related to the return of E.L.W.J. Accordingly, the court found that the total amount of $4,648.70 in expenses incurred by Petitioner or on his behalf to be reasonable and necessary to his efforts to have his child returned to the Republic of Ireland.
Chavez v Sequera, 2011 WL 3666581 (W.D.Tex.) [Mexico] [Default Judgment]
In Chavez v Sequera, 2011 WL 3666581 (W.D.Tex.) Plaintiffs filed their "Original Petition for Writ of Habeas Corpus and for Return of a Child Victim of International Abduction" in which they contended that on August 13, 2010 a female minor (N.H.S.) was with her parents in Ciudad Juarez when her parents were shot and killed. Juarez police allegedly delivered N.H. S. to Plaintiffs--N.H. S .'s paternal grandparents. The next day, while the minor child was left with her aunts, Defendants--the minor child's maternal grandparents and other relatives-allegedly acted together to physically overpower the aunts, abduct the minor child, and remove her to El Paso, TX. Plaintiffs subsequently initiated custody proceedings in the First Family Court of the Judicial District of Bravos, Chihuahua, Mexico, which they contended was a court of proper venue and represented that the court granted them temporary legal custody of N.H.S. in absentia since Defendants were "avoiding detection" in both Mexico and the United States. On March 4, 2011, Defendants were served with the Petition. Defendants had until March 25, 2011 to file an answer, but failed to do so. Fed. R. Civ. P. 12(a)(1)(A)(i). On March 31, 2011 the Clerk of the Court filed an "Entry of Default." As a result, Plaintiffs asked that the Court grant default judgment in their favor. The district court noted that a defendant must serve a responsive pleading within 21 days after being served with a summons and complaint. Fed. R. Civ. P. 12(a)(1). When a defendant fails to otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. Fed. R. Civ. P. 55. If a plaintiff's claim is not for a "sum certain" or for an amount that can be made certain by computation, application for the entry of a judgment by default must be made to the court. Fed.R.Civ.P. 55(B)(2). It indicated that on April 18, 2011, with all parties present, the Court held a hearing in order to apprise Defendants of the consequences of failing to answer Plaintiffs' Petition. At that time the Court explained its limited role under the Hague Convention and made it clear to Defendants that it was not the Court's duty to make an independent determination about the best interests of the child nor to opine as to the substantive legal proceedings relating to the issue of custody which were before the Mexican legal system. Further, the Court informed Defendants that they had failed to comply with the law by filing an answer timely.
Defendants did not formally appear either through counsel or pro se and did not file responsive pleadings to the Petition or to the Motion for Default Judgment. Based on the pleadings, the Court found that the allegations in Plaintiffs' Petition were facial sufficient to state their claim and merit the relief they were seeking. As a result, the Court granted the Motion for Default Judgment. It directed that that Defendants contact Plaintiffs' counsel, and arrange for the physical return of N.H. S. to Plaintiffs not more than seven (7) days following the service of its Order. It further ordered, among other things, that should Defendants fail to timely return physical custody of N.H. S. to Plaintiffs, upon notification from Plaintiffs of such deficiency, the Court may enlist the services of the United States Marshal to assist Plaintiffs in carrying out the provisions of its Order.
Monday, August 15, 2011
Avendano v Smith, 2011 WL 3503330 (D.N.M.) [Federal Rules of Evidence]
In Avendano v Smith, 2011 WL 3503330 (D.N.M.) Smith argued that the Federal Rules of Evidence did not apply to proceedings under the Hague Convention. The District Court disagreed with her. It observed that Rule 1101(b) of the Federal Rules of Evidence states: "These rules apply generally to civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, United States Code."
The cases the Court found suggested that the Federal Rules of Evidence apply in a court's consideration of a petition for return of children. It noted that in Danaipour v. McLarey, 386 F .3d 289 (1st Cir.2004), the mother removed her two daughters from the Kingdom of Sweden to the United States of America in violation of a Swedish Court order, and the father filed suit in the United States seeking to have the children returned pursuant to the "International Child Abduction Remedies Act, and the Hague Convention on the Civil Aspects of International Child Abduction. The United States Court of Appeals for the First Circuit addressed the district court's conclusion, under rule 1101(b) of the Federal Rules of Evidence, that "the summary character of Hague Convention proceedings does not require application of the Federal Rules of Evidence regarding hearsay...." 386 F.3d at 296. The First Circuit stated: "While summary proceedings certainly may occur in cases under the Convention, this was not one. Indeed, this was a full trial." 386 F.3d at 296. The First Circuit stated, however: "Whatever our doubts, nonetheless, Danaipour has not directly raised on appeal the point of the applicability of the Federal Rules of Evidence; at most he argues that the mother's family's recounting of the children's statements to physicians constituted inadmissible double hearsay and was inherently unreliable."
The United States Court of Appeals for the Third Circuit has also suggested that the Federal Rules of Evidence apply in adjudications of petitions for return of children under the Hague Convention. See Karkkainen v. Kovalchuk, 455 F.3d 280, 285 (3d Cir.2006)(rejecting Karkkainen's claim that the district court improperly permitted testimony regarding the daughter's best interests, stating that "Karkkainen points to no specific instances in which the District Court permitted such testimony, and we have found none within the record. We also conclude that the District Court admitted hearsay testimony only under the exceptions of the Federal Rules and properly limited its use," and concluding, "[t]hus, we find no abuse of discretion on these points").
The Court thus concluded that the Federal Rules of Evidence apply to its consideration of the Petition.
The cases the Court found suggested that the Federal Rules of Evidence apply in a court's consideration of a petition for return of children. It noted that in Danaipour v. McLarey, 386 F .3d 289 (1st Cir.2004), the mother removed her two daughters from the Kingdom of Sweden to the United States of America in violation of a Swedish Court order, and the father filed suit in the United States seeking to have the children returned pursuant to the "International Child Abduction Remedies Act, and the Hague Convention on the Civil Aspects of International Child Abduction. The United States Court of Appeals for the First Circuit addressed the district court's conclusion, under rule 1101(b) of the Federal Rules of Evidence, that "the summary character of Hague Convention proceedings does not require application of the Federal Rules of Evidence regarding hearsay...." 386 F.3d at 296. The First Circuit stated: "While summary proceedings certainly may occur in cases under the Convention, this was not one. Indeed, this was a full trial." 386 F.3d at 296. The First Circuit stated, however: "Whatever our doubts, nonetheless, Danaipour has not directly raised on appeal the point of the applicability of the Federal Rules of Evidence; at most he argues that the mother's family's recounting of the children's statements to physicians constituted inadmissible double hearsay and was inherently unreliable."
The United States Court of Appeals for the Third Circuit has also suggested that the Federal Rules of Evidence apply in adjudications of petitions for return of children under the Hague Convention. See Karkkainen v. Kovalchuk, 455 F.3d 280, 285 (3d Cir.2006)(rejecting Karkkainen's claim that the district court improperly permitted testimony regarding the daughter's best interests, stating that "Karkkainen points to no specific instances in which the District Court permitted such testimony, and we have found none within the record. We also conclude that the District Court admitted hearsay testimony only under the exceptions of the Federal Rules and properly limited its use," and concluding, "[t]hus, we find no abuse of discretion on these points").
The Court thus concluded that the Federal Rules of Evidence apply to its consideration of the Petition.
Wednesday, August 10, 2011
Radu v Toader, 2011 WL 3418368 (E.D.N.Y.) [Romania] [Rights of Custody][Ne Exeat Rights]
In Radu v Toader, 2011 WL 3418368 (E.D.N.Y.) Iulian Cristian Radu ("petitioner") brought an action against Petruta Toader ("respondent") for the return of their child L.R. to Romania pursuant to the Hague Convention. Petitioner was a Romanian citizen, and currently lived in Romania. Respondent and L.R. were also Romanian citizens, but currently resided in Forest Hills, New York. The petition was filed on April 6, 2011. Petitioner and respondent were born in Romania and were Romanian citizens. In January 2003, the two married in Romania. Two years later, on January 13, 2005, L.R. was born in Romania. Petitioner, respondent, and L.R. lived together in respondent's parent's home in Bucharest, Romania until August 2009. In May 2009, respondent took a business trip to New York for approximately five days. Upon her return, she demanded that the family move to New York. When petitioner refused, respondent filed for divorce at the end of May 2009. Petitioner contended that after respondent filed for divorce, she refused to let him see his child. On October 2, 2009, a Bucharest court issued a Divorce Decree granting respondent sole custody of the child and granting petitioner visitation rights, for one year, for two weekends each month, two weeks during the summer, one week during winter vacation, and one week during the Easter holiday. The Divorce Decree provided that, pursuant to Romanian Family Code and Law no. 272/2004, the noncustodial parent "shall retain the right to a personal relationship with the child," have input in the "upbringing and education of the child," and maintain a "close emotional relationship" with the child. The Decree also required that petitioner pay 300 Lei each month in alimony, which he continued to do since the divorce. The court defines the custody determination as a "final and irrevocable court decision." The Divorce Decree stated that the dissolution of the marriage was by "shared fault." Both parties were represented by counsel during the signing of the Decree and there was no other evidence to indicate that there was any illegality in its construction. The district court noted that petitioners visitation rights did not amount to custodial rights as required for the return of the child to Romania. Between the divorce in October 2009 and L.R.'s removal from Romania in September 2010, petitioner exercised his visitation rights and provided financial and emotional support to the child. From approximately December 2009 to June 2010, respondent permitted petitioner to have additional visits with the child beyond his decreed visitation schedule. On September 17, 2010, respondent and the child moved to the United States without notifying petitioner. Respondent noted that she did not tell petitioner that she intended to change the child's domicile because she was "unsure how her relationship with another man-now her husband-would turn out." Respondent also maintained that her Romanian attorney told her that, pursuant to law 248/500, respondent did not need petitioner's permission to change the child's domicile. On September 25, 2010, petitioner went to pick up his child from respondent's home for his scheduled visit and was told by respondent's parents that respondent and the child had resettled in the United States. On September 29, 2010, petitioner received a letter from respondent's attorney, which provided him with respondent and L.R.'s new
address and telephone number in Forest Hills, New York. Petitioner has since had telecommunications with his child via both phone calls and video conference.
On February 25, 2011, petitioner filed a petition in the Bucharest Court seeking a decision that respondent's removal and retention of L.R. outside of Romania was illegal. On May 5, 2011, the Bucharest Court dismissed the action, finding that petitioner did not have standing to bring the suit and was without remedy of law.
The District Court observed that in order to raise a prima facie case, a petitioner had to prove by a preponderance of the evidence that: "(1) the child was habitually resident in one State and has been ... retained in a different State; (2) the ... retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights [or would have exercised those rights] at the time of the ... retention." Gitter v Gitter, 396 F.3d at 130-131. If a court deems that there has been a wrongful removal or retention of a child under the age of sixteen, and the petition was brought within a year of the wrongful removal or retention, the country in which the child is located must "order the return of the child forthwith," unless the respondent is able to raise an affirmative defense. Hague Convention art. 12.
The District Court found that petitioner failed to establish a prima facie case of wrongful removal and retention by a preponderance of the evidence. The parties did not dispute that L.R. was a habitual resident of Romania at the time of his removal. The pinnacle issue was whether respondent's unilateral decision to change the child's domicile was in breach of petitioner's rights of custody. Both sides cited to Abbott as the seminal case in determining whether petitioner has a ne exeat right-the right of a parent to require his consent before a child is taken out of the country. In Abbott, the Court held that a parent's ne exeat right qualifies as right of a custody under the Hague Convention. See 130 S.Ct. at 1990. Therein, the father and mother separated and a Chilean court awarded visitation rights to the father. Id. at 1988. The Court found that while visitation rights or "rights of access" alone did not amount to a ne exeat right, where the law of the country of residence explicitly requires a parent to give consent before removing the child, a custodial right exists. Thus, absent an explicit award of custody, the Court consulted the law of the country of residence to determine whether a parent had a ne exeat right.
The district court observed that the final and irrevocable Divorce Decree only awarded petitioner visitation rights, not custodial rights. The Court rejected petitioners argument that his visitation rights, in conjunction with four Romanian laws, amounted to a ne exeat right. The first law to which petitioner cited was the Romanian Law on the Protection and Promotion of the Rights of the Child, Law 272/2004, which concerns a child's temporary travel abroad. That law provides, in part, that "the child[ ]'s travel in the country or abroad may only be done when both parents have been notified and have agreed; any misunderstanding between the parents concerning the expression of this agreement is ruled upon by the court of law." Here, respondent did not notify petitioner of L.R.'s travel to the United States; however, any disagreement arising from the child's travel outside of Romania had already been ruled upon by "the court of law"--that is, the irrevocable and final decision rendered in the Divorce Decree, which granted sole custody to respondent. Although petitioner argued that his visitation rights alone created a ne exeat right, this argument was misguided. See Abbott, 130 S.Ct. at 1988-89 (finding that "direct and regular visitation rights," are recognized as "rights of access," but that these rights alone do not offer a return remedy under the Convention). Upon reading Law 272/2004 in full, the district court observed that the law clearly anticipated that a final and irrevocable custody determination would modify and limit the very parental rights which Law 272/2004 espoused. Article 16, for example, provides that the "court of law, considering the best interests of the child as a priority, can limit the exercise of the [noncustodial parent's right to maintain direct contact]." The Bucharest court that issued the parties' Divorce Decree did just that, and negated petitioner's custodial rights by awarding respondent sole custody of the child. Thus, petitioner failed to establish that the Divorce Decree and law 272/2004 created a ne exeat right. The second law to which petitioner cited was the Status of the Free Movement of the Romanian Citizens Abroad Law 248/2005, ("248/2005"), which states that a minor Romanian citizen may leave the country when accompanied by one of his parents "without the need for the other parent's affidavit, only if the accompanying parent presents proof that she has custody of the minor based on a final and irrevocable court decree." This law clarified that because respondent has a final and irrevocable Divorce Decree vesting her with sole custody of L.R., she could temporarily remove L.R. from Romania without petitioner's permission. The Court found that the Divorce Decree superseded the prior Romanian law requiring both parents' consent. The Romanian Consulate affirmed this finding in a letter to this Court, noting that "[i]n accordance with the Romanian Law no. 248/2005, as amended, the parent who has the custody of the child is entitled to request the issuance of a Romanian passport/travel document for the said child and to approve any trip abroad, without the other parent's consent." Accordingly, Law 248/2005 failed to confer upon petitioner a ne exeat right.
The Court concluded that petitioner had not established that he had any ne exeat rights as to L.R. under the Divorce Decree or Romanian law. The Romanian court rendered a final and irrevocable custodial determination in favor of respondent, did not award any custodial rights to petitioner, and was silent as to petitioner's ne exeat rights. This Decree, under Romanian law, then superseded any ne exeat right that petitioner may have had. Accordingly, petitioner failed to establish that respondent's retention of L.R. was in violation of his custodial rights.. Because the Divorce Decree did not afford petitioner with custodial rights, and Romanian law does not grant a ne exeat right in the face of the superseding Divorce Decree, petitioner had no custodial rights to exercise at the time of L.R.'s removal. Accordingly, petitioner failed to meet the third element of his prima facie case. The petition was therefore dismissed.
address and telephone number in Forest Hills, New York. Petitioner has since had telecommunications with his child via both phone calls and video conference.
On February 25, 2011, petitioner filed a petition in the Bucharest Court seeking a decision that respondent's removal and retention of L.R. outside of Romania was illegal. On May 5, 2011, the Bucharest Court dismissed the action, finding that petitioner did not have standing to bring the suit and was without remedy of law.
The District Court observed that in order to raise a prima facie case, a petitioner had to prove by a preponderance of the evidence that: "(1) the child was habitually resident in one State and has been ... retained in a different State; (2) the ... retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights [or would have exercised those rights] at the time of the ... retention." Gitter v Gitter, 396 F.3d at 130-131. If a court deems that there has been a wrongful removal or retention of a child under the age of sixteen, and the petition was brought within a year of the wrongful removal or retention, the country in which the child is located must "order the return of the child forthwith," unless the respondent is able to raise an affirmative defense. Hague Convention art. 12.
The District Court found that petitioner failed to establish a prima facie case of wrongful removal and retention by a preponderance of the evidence. The parties did not dispute that L.R. was a habitual resident of Romania at the time of his removal. The pinnacle issue was whether respondent's unilateral decision to change the child's domicile was in breach of petitioner's rights of custody. Both sides cited to Abbott as the seminal case in determining whether petitioner has a ne exeat right-the right of a parent to require his consent before a child is taken out of the country. In Abbott, the Court held that a parent's ne exeat right qualifies as right of a custody under the Hague Convention. See 130 S.Ct. at 1990. Therein, the father and mother separated and a Chilean court awarded visitation rights to the father. Id. at 1988. The Court found that while visitation rights or "rights of access" alone did not amount to a ne exeat right, where the law of the country of residence explicitly requires a parent to give consent before removing the child, a custodial right exists. Thus, absent an explicit award of custody, the Court consulted the law of the country of residence to determine whether a parent had a ne exeat right.
The district court observed that the final and irrevocable Divorce Decree only awarded petitioner visitation rights, not custodial rights. The Court rejected petitioners argument that his visitation rights, in conjunction with four Romanian laws, amounted to a ne exeat right. The first law to which petitioner cited was the Romanian Law on the Protection and Promotion of the Rights of the Child, Law 272/2004, which concerns a child's temporary travel abroad. That law provides, in part, that "the child[ ]'s travel in the country or abroad may only be done when both parents have been notified and have agreed; any misunderstanding between the parents concerning the expression of this agreement is ruled upon by the court of law." Here, respondent did not notify petitioner of L.R.'s travel to the United States; however, any disagreement arising from the child's travel outside of Romania had already been ruled upon by "the court of law"--that is, the irrevocable and final decision rendered in the Divorce Decree, which granted sole custody to respondent. Although petitioner argued that his visitation rights alone created a ne exeat right, this argument was misguided. See Abbott, 130 S.Ct. at 1988-89 (finding that "direct and regular visitation rights," are recognized as "rights of access," but that these rights alone do not offer a return remedy under the Convention). Upon reading Law 272/2004 in full, the district court observed that the law clearly anticipated that a final and irrevocable custody determination would modify and limit the very parental rights which Law 272/2004 espoused. Article 16, for example, provides that the "court of law, considering the best interests of the child as a priority, can limit the exercise of the [noncustodial parent's right to maintain direct contact]." The Bucharest court that issued the parties' Divorce Decree did just that, and negated petitioner's custodial rights by awarding respondent sole custody of the child. Thus, petitioner failed to establish that the Divorce Decree and law 272/2004 created a ne exeat right. The second law to which petitioner cited was the Status of the Free Movement of the Romanian Citizens Abroad Law 248/2005, ("248/2005"), which states that a minor Romanian citizen may leave the country when accompanied by one of his parents "without the need for the other parent's affidavit, only if the accompanying parent presents proof that she has custody of the minor based on a final and irrevocable court decree." This law clarified that because respondent has a final and irrevocable Divorce Decree vesting her with sole custody of L.R., she could temporarily remove L.R. from Romania without petitioner's permission. The Court found that the Divorce Decree superseded the prior Romanian law requiring both parents' consent. The Romanian Consulate affirmed this finding in a letter to this Court, noting that "[i]n accordance with the Romanian Law no. 248/2005, as amended, the parent who has the custody of the child is entitled to request the issuance of a Romanian passport/travel document for the said child and to approve any trip abroad, without the other parent's consent." Accordingly, Law 248/2005 failed to confer upon petitioner a ne exeat right.
The Court concluded that petitioner had not established that he had any ne exeat rights as to L.R. under the Divorce Decree or Romanian law. The Romanian court rendered a final and irrevocable custodial determination in favor of respondent, did not award any custodial rights to petitioner, and was silent as to petitioner's ne exeat rights. This Decree, under Romanian law, then superseded any ne exeat right that petitioner may have had. Accordingly, petitioner failed to establish that respondent's retention of L.R. was in violation of his custodial rights.. Because the Divorce Decree did not afford petitioner with custodial rights, and Romanian law does not grant a ne exeat right in the face of the superseding Divorce Decree, petitioner had no custodial rights to exercise at the time of L.R.'s removal. Accordingly, petitioner failed to meet the third element of his prima facie case. The petition was therefore dismissed.
Monday, August 8, 2011
Vasquez v Colores,--- F.3d ----, 2011 WL 3366380 (8th Cir.(Minn.))[Mexico] [Grave Risk of Harm] [Evidence]
In Vasquez v Colores,--- F.3d ----, 2011 WL 3366380 (8th Cir.(Minn.)) Dr. Carlos Colores Vasquez filed a petition to return his twenty-two-month-old daughter, I.R.C., to Mexico. Stephanie Colores, Dr. Colores's estranged wife and mother of I.R.C., opposed the petition. The district court entered an order granting the petition. Ms. Colores appealed, arguing that the district court erred in denying her motion for a continuance and in excluding the testimony of two witnesses. The Eighth Circuit affirmed.
The Court observed that the Article 13(b) exception, on which Ms. Colores relied, applies if the party opposing the petition establishes by clear and convincing evidence that "there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." It indicated that it has recognized two types of grave risk that are cognizable under Article 13(b): cases in which a child is sent to a zone of war, famine, or disease and those involving serious abuse or neglect. (Citing Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003).
Ms. Colores, an American citizen, and Dr. Colores married in Minnesota in the summer of 2007 and moved to Mexico. Their daughter, I.R.C., was born in December 2008. In early May 2010, Ms. Colores left Mexico with I.R.C. and traveled to South Carolina, where her mother was vacationing. The three returned to her mother's home in Minnesota in late May. Dr. Colores filed his petition for emergency ex parte relief under the Convention on August 23, 2010. The district court granted that petition two days later. Ms. Colores sought a continuance, claiming that she needed more time to obtain additional information from the United States Embassy in Mexico City and security footage from the gated community in which she and Dr. Colores had lived. Dr. Colores objected to the continuance, arguing that Ms. Colores had failed to demonstrate that the information was material to the petition. The district court denied the motion for a continuance, and the parties commenced the first of three evidentiary hearings on September 1. The parties agreed that I.R.C. was a habitual resident of Mexico and that her removal was wrongful because Dr. Colores did not consent and I.R.C. did not have a valid passport.
Ms. Colores claimed that the Article 13(b) exception applied and thus the district court was not obligated to return I.R.C. to Mexico. Over the course of the hearings, she sought to establish that Dr. Colores's anger problems and history of abuse posed a grave risk of physical or psychological harm that satisfied the Article 13(b) exception. She testified that Dr. Colores had abused I.R.C. by shaking her head forcefully six to ten times a month, head-butting her two to three times a month, or hitting her on the back with his fist. Barbara Jo Gangl, Ms. Colores's mother, testified that she had witnessed Dr. Colores shake I.R.C.'s head forcefully and pull her hair. Following Ms. Colores's testimony, she sought to elicit testimony from John Gangl, her stepfather. She proffered that he would corroborate her account of Dr. Colores's episodes of rage by recounting a telephone conversation in which Dr. Colores allegedly lashed out at Gangl after he complained about Dr. Colores's refusal to pick up Barbara Jo from the airport when she visited. The district court inquired whether Gangl had witnessed Dr. Colores in a rage in the presence of I.R.C. and was told that he had not. The district court concluded that the proffered testimony was not relevant and excluded it. Ms. Colores also sought to elicit expert testimony from Dr. Jeffrey L. Edleson, Professor and Director of Research at the School of Social Work at the University of Minnesota and the Director of the Minnesota Center against Violence and Abuse. On September 7, 2010, when Ms. Colores first broached the topic of calling Dr. Edleson with the district court, he was unavailable to appear because he had been hospitalized. When questioned, counsel for Ms. Colores could not provide the court with more information why Dr. Edleson had been hospitalized or when he might be available. As part of her offer of proof, Ms. Colores recounted Dr. Edleson's expertise in the area of domestic violence and referred to a study, funded by the National Institute of Justice, the research arm of the U.S. Department of Justice, that addressed "the risk of harm to children in the context of domestic violence against parents and children in [Hague Convention cases]." At the time, the study was unpublished and not subject to peer review. Dr. Colores objected to the proposed testimony, noting that the witness had not been disclosed previously and had not examined I.R.C. or interviewed either of her parents. Dr. Colores argued that the proffer consisted of a generalized summary of phenomena associated with domestic abuse and was irrelevant to the specific issues at issue in the proceedings. Dr. Colores also maintained that such testimony would not shed light on the specific claims Ms. Colores made, but would only extend the proceedings and thereby exacerbate his financial hardship. The district court excluded
Dr. Edleson's testimony, concluding that it was unreliable and irrelevant.
On September 14, 2010, the district court entered an order granting Dr. Colores's petition. It did not find credible Ms. Colores's allegations that there was a grave risk that I.R.C. would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if she were returned to Mexico. It cited findings of a pediatric neurologist who had examined I.R.C. at the district court's request and who opined, based on his examination and on I.R.C.'s normal, age-appropriate neurological development, that there was no evidence of any neurologic injury. The district court also found that Ms. Colores had never reported any injury and had been willing to leave I.R.C. with Dr. Colores for ten days when she returned to the United States to attend a funeral.
The Court of Appeals pointed out that Ms. Colores's motion for a continuance was based on her claim that she needed to gather evidence that was located in Mexico. According to Ms. Colores, the evidence consisted of witness statements and videotapes from surveillance cameras of the gated community in which she and Dr. Colores had lived, as well as a copy of a report she had allegedly filed with the U.S. Embassy documenting Dr. Colores's abuse of herself and of I.R.C. Dr. Colores contended that Ms. Colores failed to establish that the evidence she sought was material and that the district court appropriately denied the motion in light of the prejudice Dr. Colores suffered from continued delay and the primacy placed on expediency in Convention proceedings. Given the underlying circumstances and the professed goal of expediency in Convention proceedings, the Court of Appeals agreed that the district court did not abuse its discretion in denying the motion.
The Court also observed that a district court enjoys wide discretion in ruling on the admissibility of proffered evidence, and evidentiary rulings should only be overturned if there was a clear and prejudicial abuse of discretion. To warrant reversal, an error must affect a substantial right of the objecting party, and the burden of showing prejudice rests on that party. Ms. Colores maintained that her stepfather's testimony would have corroborated her account of Dr. Colores's rage and anger. The incident at the heart of the proffer occurred in December 2008, when Gangl and Dr. Colores argued on the telephone after Dr. Colores refused to pick up Barbara Jo from the airport when she came to visit and instead asked that she take a cab to the house. After hearing the details of the phone conversation and determining that Gangl was not physically present with I.R.C. when it occurred, the district court concluded that the proffered testimony was not relevant and excluded it. The Court of Appeals held that at best, the proffered testimony repeated Ms. Colores's account of her husband's behavior on the night of the telephone call. But I .R.C. was not implicated in the particulars of the phone call, and Gangl's proffered testimony would have been cumulative of prior testimony from Ms. Colores and her mother. Accordingly, it could not say that the district court abused its discretion in excluding this testimony.
Ms. Colores argued that the district court abused its discretion in excluding testimony from Dr. Edleson. Federal Rule of Evidence 702 governs the admission of expert testimony and requires that the district court function as a gatekeeper to "ensure that any and all scientific testimony or evidence is not only relevant, but reliable." (Citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert may testify in the form of an opinion or otherwise so long as "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702.
The Court held that it did not have to determine whether Dr. Edleson's testimony was unreliable because the report that would have served as its basis had not yet been published or peer-reviewed, because it concluded that the district court did not abuse its discretion in excluding the testimony as irrelevant after finding that Dr. Edleson had not interviewed either of the parties or I.R.C. The district court concluded that Dr. Edleson's testimony would not have directly aided the fact-finder in sorting out whether abuse had occurred and, if so, what effect it had on I.R.C. It emphasized that there was little physical evidence of abuse or mistreatment and that the veracity of the allegations of abuse turned primarily on the credibility of the parties' testimony. Questions of admissibility "are not to be measured by what we may have done were we the district court," but whether its evidentiary decisions constitute "a clear abuse of discretion." Dunn v. Nexgrill Indus., Inc., 636 F.3d 1049, 1057 (8th Cir.2011). Ms. Colores did not demonstrate that excluding the testimony was so prejudicial as to require reversal. She did not contend that Dr. Edleson had concluded that Ms. Colores or I.R.C. had been abused or that I.R.C. faced a grave risk of harm if she were returned to Mexico. So far as the district court was aware, Ms. Colores did not contend that Dr. Edleson had formed any opinion as to I.R.C. It concluded that the exclusion of Dr. Edleson's testimony did not warrant reversal.
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