Culculoglu v Culculoglu, 2013 WL 4045905 (D.Nev.)) [Canada] [Consent or Acquiescence] [Petition Denied]

[Canada] [Consent or Acquiescence] [Petition Denied]



In Culculoglu v Culculoglu, 2013 WL 4045905 (D.Nev.))the Petition was served on March 27, 2013. A Motion for Temporary Restraining Order was filed by Petitioner on March 29, 2013. The Courtgranted Petitioner's Motion for Temporary Restraining Order on April 4, 2013 , which enjoined Respondent from removing the children from the State of Nevada during the pendency of this action without prior court approval. Respondent filed her answer on April 10, 2013 and an evidentiary hearing was conducted on May 6, 2013.

The Court determined that there was no wrongful removal or retention of the children by Respondent because Petitioner consented to their initial removal fromCanada and acquiesced to their retention in Nevada. Moreover, Petitioner wasunable to establish that the children's habitual residence was Canada and instead, the Court determined that the children's habitual residence became Nevada after September 15, 2012. Consequently, the Court recommended that the Petition be denied.

Burhan was a resident of Canada and a naturalized citizen of the United States. Michelle was a resident and citizen of the United States. The parties lived together in Seattle in early 2007. Their first child, TC, was born in 2008 in Seattle. In October 2008, the parties relocated to Singapore as a result of Burhan's employment with Fairmont Hotels and Resorts. Their second and third children were born in Singapore: KC in 2009 and AC in 2011.The parties were married on April 15, 2010 while visiting Michelle's parents in Henderson, Nevada. In early 2012, while still in Singapore, Burhan was offered a promotion to become the Director of Operations for the Fairmont Hotel in Whistler, British Colombia, Canada. Testimony by both parties revealed that they were having difficulty in their marital relationship at this time. Both Burhan and Michelle testified that they discussed divorce while in Singapore. Michelle credibly testified that, in April of 2012, she began looking for a house in Henderson near her parents in contemplation of divorce. Burhan accepted the new position in Canada and the family departed Singapore around July 4, 2012. They stayed in Henderson, Nevada and visited with Michelle's parents on the way to Canada. During their stay in Henderson, the parties obtained Nevada drivers licenses, registered to vote, and purchased two automobiles. According to Michelle, one automobile was registered solely in Michelle's name in contemplation of divorce and Burhan was present when the vehicle was registered. Michelle testified that they also opened a joint bank account for the purpose of depositing Burhan's support payments from Canada and used Michelle's parents' address in Henderson as the record address. Michelle testified that because of their marital difficulties she did not intend to remain in Canada with Burhan.

On July 21, 2012, the family drove to Canada in Michelle's automobile. Michelle testified that the automobile was not "imported" into Canada upon their arrival at the border because she did not intend to stay in Canada. Therefore, the car remained a Nevada registered vehicle. Burhan obtained a work visa for himself and visas for Michelle and the children to remain in Canada and be eligible for health insurance. Burhan immediately began his work and the family stayed in the hotel where he worked. During their stay, the parties searched for a rental home, enrolled the children in a ski-school, and TC, the oldest child, was placed on a waiting list for pre-school. Michelle testified credibly that the parties continued to discuss the uncertainties of their marriage. It appeared that the parties' relationship continued to vacillate. On August 1, 2012, Michelle told Burhan that she wanted a divorce. She indicated that the children were packed and they were leaving, apparently because she suspected that Burhan had a paramour. However, on August 23, 2012, Michelle texted Burhan that she desired to periodically hire a babysitter so that the couple could have "date nights." In spite of their efforts, the marital relationship further deteriorated. Michelle testified that on September 14, 2012, Burhan told her that he was still in love with his paramour and the marriage was over. On September 15, 2012, Michelle and the children returned to Nevada with one-way tickets purchased by Burhan. Burhan testified that Michelle departed because she was stressed from having lived in the hotel for such a long time and that the house they hoped to rent was not available. He also indicated that he wanted a few weeks away from Michelle to determine whether or not their relationship should continue. Burhan further explained that the one-way tickets were purchased in order to give flexibility to Michelle on the date of return. On September 16, 2012, Burhan sent an email to Michelle in response to her emailed question, "do you miss me," which confirmed that he wanted a divorce. On September 17, 2012, Michelle informed Burhan that she had activated the on-line capabilities for the bank account that the parties had opened during their visit to Henderson in July. She also asked him about the funds to be provided. Burhan agreed that he would add money to the account now that she was in Nevada. On September 19, 2012, the parties exchanged an email regarding a house that Michelle had apparently found in Henderson that cost $610 per month. Burhan asked, "How much down payment," and Michelle responded "It doesn't say."

In an email exchange on September 25, 2012, the parties discussed the characteristics of the schools Michelle found for the children in Henderson. Burhan testified that he expected the school to be temporary so that the children did not sit around with nothing to do in Henderson; Michelletestified it was to be the school the children would attend in the future.Michelle testified that, within a short period of time, Burhan fedexed the children's birth certificates, medical records, and social security cards tofacilitate registration. On September 29, 2012 Michelle agreed that a divorce was the best course of action. Burhan indicated that he was looking "for 2 bedroom place." In an email dated September 30, 2012, Burhan agreed to transport Michelle's things and car to her in addition to again agreeing to file fordivorce. He also indicated that Michelle would have custody of the children until they finished elementary school. After that, Burhan proposed that the children would go to school near him and they would share custody with the children as follows: Michelle would have them for eight months and Burhan for four months consisting of three to four weeks in the winter duringthe school holidays and twelve to thirteen weeks in the summer. Also, Burhanwrote that he would put $1,500 per month in Michelle's bank account. Inresponse, Michelle suggested that she drive her car from Canada and Burhan drive a "U-haul" (rental vehicle) around October 18 or 19.

By late October, the parties' discussions regarding divorce became more certain. Burhan often claimed that Michelle was keeping the children in Nevada without his consent and made threats that he would take the children from Michelle. On November 18, 2012, Burhan drove Michelle's vehicle to Nevada including her and the children's clothing and personal effects. Michelle testified that Burhan wanted to stay at her parents' home during the visit, which she rejected because they were divorcing. She also testified that Burhan was emotional and erratic during the visit and wanted to reunite with her. Burhan testified that Michelle cut his visit short by threatening to call the police and he was unable to spend any substantive time with the children. Burhan bought an airline ticket and returned to Canada on November 20, 2012. On January 15, 2013, consistent with on-going text discussions with Burhan, Michelle filed for divorce in Nevada. On January 29, 2013, Burhan filed an application pursuant to the Convention in British Colombia, Canada for the return of his children. As he arrived at the airport to visit the children in February of 2013, Burhan was served with the divorce complaint. Burhan met with Michelle and her lawyer on February 11, 2013. Thereafter, as the parties had agreed Michelle dismissed her complaint on February 19, 2013 and Burhan instructed his lawyer to dismiss his Convention application. In spite of their attempts, however, the parties were unable to resolve the terms of the divorce and custody.

On March 1, 2013, Burhan advised Michelle that he intended to pick-up the children and remove them from the United States. Burhan arrived, but his effort was unsuccessful, which resulted in the Verified Complaint - Petition at issue in this case. In the Petition, Burhan sought return of the three children to Canada for an appropriate custody determination under Canadian law.

The Court found that there was no date that could be the date of a wrongful removal. n September 15, 2012, Michelle and the children returned to Nevada using one-way tickets purchased by Burhan.The removal of the children on September 15, 2012 was not wrongful because it was with Burhan's consent. The Court found that arrangements for support payments, housing, and schooling in Nevada were evidence of Burhan's intent that Michelle and the children remain in Nevada. They were also consistent with the parties' preliminary discussions, confirmed by email on October 2, 2012, to address custody of the children. The parties reaffirmed that divorce was the best course of action on September 29, 2012. Burhan indicated that he was looking for a two bedroom house in Whistler despite previously looking for a three to four bedroom house. On September 30, 2012, Burhan agreed to transport Michelle's car and her and the children's clothing to Nevada. This two week sequence of events was inconsistent with Burhan's testimony that he expected Michelle and the children to temporarily visit the United States and return to Canada in October 2012. Further, the Court did not find Burhan to be credible with respect to his testimony that the children were to return to Canada no later than October 16, 2012. The Court could not find a time when Michelle wrongfully removed or retained the children in Nevada from September 15, 2013 through March 14, 2013. It is not until this action was filed, on March 15, 2013, that Burhan consistently contended that the removal and retention of the children in Nevada was wrongful.

Michelle asserted both consent and acquiescence as affirmative defenses to Burhan's allegation of wrongful removal or retention of the children in Nevada. Under Article 13, the right to a child's return secured by the Convention is extinguished if "the person ... having the care of the child ... consented to or subsequently acquiesced in the removal or retention."19 I.L.M. at 1502. Under the Convention's plain, unambiguous language, consent before removal and retention or subsequent acquiescence extinguishes the right of return. In considering consent or acquiescence, "ambiguous statements or actions don't suffice." Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir.2010). A statement or action must "unequivocally demonstrate that [the petitioner] consented to the child's indefinite stay in [America]." Conduct after removal can be useful in determining whether consent was present at the time of removal. Gonzalez-Caballero, 251 F3d at 794. The Court found that the preponderance of the evidence demonstrated that Burhan consented to the children's removal and retention. He sent Michelle and the children to Nevada on a one-way ticket. Burhan also deposited monthly support funds. He participated in arranging schooling and housing. Finally, Burhan transported Michelle's car and her and the children's personal property to Nevada. Moreover, Burhan specifically gave written consent to the children being in Nevada from the time they left Canada until at least March 14, 2013. The Court did not find Burhan's testimony, after-the-fact, that he did not consent and always believed the children would return to Canada to be credible in the face of this clear, unambiguous, written statement of consent. Accordingly, the Court found that Michelle has met her burden of proving that the removal and retention of the children in Nevada was not wrongful because it was done with Burhan's consent.

The acquiescence defense has been held to require "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 v. Friedrich, 78 F.3d 1060, 1070 (6th Cir.1996). By making arrangements for Michelle and the children to remain in Nevada after September 15, 2012, the Court found that Burhan demonstrated a consistent attitude of acquiescence. This attitude continued from the time the children left Canada at least until Burhan filed his Hague application on January 29, 2013. The Court also found that on February 19, 2013, when Burhan formally withdrew his Hague application and agreed in writing to the children remaining in Nevada until at least March 14, 2013, he acquiesced to the children residing in Nevada. This was a clear, written, statement of Burhan's acquiescence that the Court found convincing despite Burhan's testimony that he expected the children to return to Canada to live permanently. Accordingly, the Court found that Michelle has met her burden of proving that the removal and retention of the children in Nevada was not wrongful because it was done with Burhan's acquiescence.

Assuming, arguendo, that Burhan did not consent to the children's permanent removal or acquiesce to their retention, the Court found that the children were not habitual residents of Canada. It was not disputed that the parties intended to abandon their residence in Singapore. Nor was there a question that Burhan intended to remain in Canada-he accepted a promotion to a new position there. It was true that the family lived together in the hotel in Canada, attempted unsuccessfully to find a permanent residence, made arrangements for future activities for the children including ski school and preschool for TC, and Michelle scheduled a doctor's appointment. This was evidence that the parties intended that the children reside in Canada prior to September 15, 2012. It did not appear, however, that Michelle intended to permanently reside in Canada. The marital discord and the contemplation of separation or divorce dated back to the parties time in Singapore. Michelle testified credibly that she was concerned about the future of her marriage even before she departed Singapore. Michelle's efforts to find a house in Henderson prior to departing Singapore reinforced this finding. Burhan's testimony that the couple was only looking for a vacation home in Nevada was not credible given that Michelle's parents lived in Henderson and their income was not conducive to an investment home. Additionally,  the Court found credible Michelle's testimony that the establishment of a bank account in Henderson before the family traveled to Canada was for her to receive support payments in the event of separation. The purchase of two cars, one placed in Michelle's name, served as another indicator of Michelle's uncertainty about remaining in Canada. From their arrival in Canada on July 21, 2012 until September 15, 2012, a period of 56 days, the parties continued to suffer significant marital difficulties. Michelle made no friends in Canada, the family lived in a hotel that was understood to be temporary, and the children did not participate in many activities. This was the evidence that the parties intended the children to reside in Nevada after their 56 day stay in Canada.

Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) [Colombia] [Federal & State Judicial Remedies] [Temporary Restraining Order]

In Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) Petitioner Francelly Sanchez Londono filed a Verified Emergency Petition for the Return of Child and Warrant of Arrest in Lieu of Writ of Habeas Corpus, pursuant to 42 U.S.C. § 11601. The petition was accompanied by an Emergency Motion for Relief and an Application to Proceed in District Court Without Prepaying Fees or Costs. The petition was brought pursuant to the Hague Convention and sought, among other things, to compel respondent Nelson Gonzalez to appear in court to show cause why the child EG should not be returned to Colombia. The petition alleged that EG was brought from Colombia to the United States in May 2011 by her father, Gonzalez, and had been retained here without petitioner’s consent.

Petitioner filed an Emergency Petition for the Return of Child and an Emergency Motion for Relief. The court denied the motion for poor person relief. However, it observed that upon appropriate motion, the Court has the authority to prevent a child’s concealment or removal from the District until such a petition is ruled upon. See 42 U.S.C. § 11604(a); Fed.R.Civ.P. 65. ICARA expressly authorizes a court to "take or cause to be taken measures under federal or state law, as appropriate, ... to prevent the child’s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a).

Given the representations made to the Court by petitioner, and the very serious irreparable harm that was likely to result both to the child and to petitioner in the event the child was wrongly removed from this jurisdiction, a temporary restraining order was justified to preserve the status quo pending a hearing. For the purposes of Fed.R.Civ.P. 65(b), the Court found that petitioner had made a sufficient showing that, without an injunction, she may sustain immediate and irreparable injury before there was an opportunity for a hearing. The record did not suggest any comparable irreparable harm to respondent that would result from the granting of this temporary injunction. The balance of hardships tiped in favor of petitioner. Based on the present record, the Court was also convinced that it was necessary to issue an injunction without prior notice to respondent. Petitioner’s submissions indicated a risk that, should notice be provided, the child might be concealed or taken from this jurisdiction before an injunction could be served. The Court did not require petitioner to post a bond as a condition of obtaining the injunction at this trial. It directed that a summons be served on the respondent.

Wood v Wood, 2013 WL 1907492, (E.D. Washington) [United Kingdom] [Federal & State Judicial Remedies ][Temporary Restraining Order] [Deposit Passport with Court]

 In Wood v Wood, 2013 WL 1907492, (E.D. Washington) Petitioner filed an Ex Parte Request for Expedited Consideration of Verified Petition for Return of Child to the United Kingdom and Issuance of Show Cause Order (ECF No. 3). He sought the return of his minor child, LPBW, to the child’s home country of the United Kingdom. He alleged that LPBW has been wrongfully retained in the United States by his mother, Respondent Melissa Renee Wood ("Respondent"), and was currently residing with Respondent in Moxee, Washington. Petitioner requested an order (1) temporarily restraining Respondent from removing LPBW from this Court’s jurisdiction; (2) requiring Respondent to deposit LPBW’s passport and other travel documents with the Court; and (3) directing Respondent to appear for a show cause hearing. Fearing that Respondent would attempt to remove the child from the Eastern District of Washington if given advance notice of these proceedings, Petitioner filed the motion ex parte.

The District Court observed that 42 U.S.C. § 11604(a) extends the Courts authority to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Morgan v. Morgan, 289 F.Supp.2d 1067, 1069 (N.D. Iowa 2003. In taking any preventative measures pursuant to § 1 1604(a), however, a court must ensure that "the applicable requirements of State law are satisfied." 42 U.S.C. § 11604(b).

Petitioner requested an order barring respondent from removing LPBW from this Court’s jurisdiction pending full adjudication of the Petition. Given that Petitioner filed his motion without serving a copy on Respondent, the Court construed this request as a motion for an ex parte temporary restraining order ("TRO"). Under Rule 65(b), a party seeking a TRO must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if the requested relief is not granted, (3) that a balancing of the hardships weighs in its favor; and (4) that the requested relief will advance the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should remain in force in the form of a preliminary injunction.

The Court found that the issuance of a TRO was appropriate. Petitioner established a prima facie case of wrongful retention under the Hague Convention by alleging that Respondent was holding LPBW, a child under sixteen years of age whose country of habitual residence is the United Kingdom, in the United States without his permission and in violation of his rights of custody under the Law of England and Wales. Petitioner also established to the Court’s satisfaction that Respondent and LPBW were currently residing within the Eastern District of Washington. Accordingly, Petitioner established a sufficiently high likelihood of success on the merits. Petitioner also established a sufficiently high likelihood of irreparable injury if the requested relief was not granted. According to the Petition, Respondent had taken LPBW "on the road" through at least four different states in an effort to conceal the child’s whereabouts from Petitioner. In light of these allegations, there was reason to believe that Respondent may remove LPBW from this Court’s jurisdiction upon learning of these proceedings if not expressly prohibited from doing so. If that occurred, Petitioner would likely experience great difficulty in locating the child and pursuing the child’s safe return to the United Kingdom. The Court found that injunctive relief was necessary to prevent this and other potential injuries from occurring. For these same reasons, the Court found that issuance of the Order without notice to Respondent was appropriate under Rule 65(b)(2). Prohibiting Respondent from removing LPBW from the Eastern District of Washington until she could be heard on the matter was a minimally burdensome condition. Indeed, given that Respondent and LPBW appeared to have settled in Moxee (at least for the time being), there was no reason to believe that either Respondent or the child will be burdened at all. Conversely, Petitioner faced a substantial hardship if the requested relief was not granted. As noted above, Petitioner’s ability to obtain effective relief under the Hague Convention would be seriously jeopardized if Respondent were to remove the child from this Court’s jurisdiction. Finally, the Court found that an order barring Respondent from removing LPBW from the jurisdiction would advance the public interest. In implementing the Convention through ICARA, the United States Congress found, inter alia, that "the international abduction ... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C. § 11601(a)(1), (2). Granting the requested relief would, at least temporarily, prevent Respondent from further profiting from her alleged wrongful retention of LPBW in the United States. Accordingly, the Court concluded that Petitioner was entitled to an order temporarily restraining Respondent from removing LPBW from the Court’s jurisdiction; it prohibited her from directly or indirectly removing the minor child, LPBW, born in 2007, from the Eastern District of Washington; directed that Petitioner shall not be required to give security under Rule 65(c); directed Respondent to appear before the court to show cause why she should not be prohibited from removing the LPBW from the Court’s jurisdiction until the proceeding was concluded; directed Respondent to produce LPBW’s passport and any other identification and/or travel documents at the hearing and to deposit them with the Court for safekeeping until the proceeding was concluded; and directed Petitioner to arrange for the Order, along with a copy of the Verified Petition and all attached documents, to be personally served upon Respondent at the earliest possible time, and file proof of service prior to the hearing.

Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) [Canada] [Federal & State Judicial Remedies] [Temporary Restraining Order] [Delivery of Passport to Court]

In Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) Petitioner alleged that he resided in Whistler, British Columbia, Canada where, until September 2012, he lived with Respondent and their three children. On March 15, 2013, Petitioner filed his Verified Complaint asserting a cause of action for Wrongful Retention under The Hague Convention on International Child Abduction. In the Petition, Petitioner sought return of the children to Canada to allow the courts of the children's "habitual residence" to determine any custody issues. Petitioner filed a motion seeking an ex parte Temporary Restraining Order to ensure that the minor children, remained in Nevada until the Court can resolve the merits of this matter.

The Court observed that Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders, and requires that a motion for temporary restraining order include "specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition," as well as written certification from the movant's attorney stating "any efforts made to give notice and the reasons why it should not be required."Fed.R.Civ.P. 65(b).Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. Like a preliminary injunction, the Court may issue a temporary restraining order if a plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ."Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22.

The district court concluded that Plaintiff established each of the prongs of the TRO analysisThe first prong requires Petitioner to establish that the children were removed or retained away from the country of their habitual residence. See Hague Convention, art. 3(a). The second prong of Petitioner's Wrongful Retention claim requires that Petitioner prove that Respondent's retention of the children in the United States was in breach of the custody rights of the Petitioner, as provided by Canadian law. Hague Convention, art. 3(a). Finally, Petitioner must establish that, at the time the children were removed or retained, Petitioner was actually exercising his rights of custody. Hague Convention, art. 3(b). Petitioner's Verified Complaint adequately demonstrates that he was exercising his rights of custody at the time Respondent brought the children to the United States and that Petitioner would have continued to exercise his rights of custody but for Respondent's allegedly wrongful retention of the children in the United States. Given the risk that Respondent could further conceal the location of the children, the Court found that Petitioner would likely be irreparably harmed in the absence of the requested relief to maintain the status quo.

The Court concluded that the risk of Respondent secreting away the children before the resolution of the Petition, outweighed any injury to the Respondent or the children that may result from ordering them to stay in the District. First, the Order merely maintained the status quo by ordering that Respondent and the children remain in the District during the pendency of this action. Second, the Verified Complaint stated that Respondent's parents reside in the District.  Thus, this Order would not impose a hardship on Respondent.

Accordingly, the balance of equities tipped in favor of Petitioner and supported the issuance of the requested temporary restraining order. "The public interest analysis for the issuance of [injunctive relief] requires [district courts] to consider whether there exists some critical public interest that would be injured by the grant of preliminary relief." ICARA expressly authorizes a court to "take or cause to be taken measures under Federal or State law, as appropriate, ... to prevent the child[ren]'s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a). Accordingly, in this case, the Court found no such public interest that would be injured by the issuance of such injunctive relief.

The Court also directed Respondent to deliver to the United States Marshal, for safekeeping, any passports for TC, KC, and AC that are were Respondent's possession, custody, or control, and shall further notify the United States Marshal if Respondent knows of any person having possession of such a passport. The Court directed that the summons and other papers be served upon the Respondent.

Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) [England] [Federal & State Judicial Remedies] [Use of Pseudonyms in Civil Litigation]

 In Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) Petitioner Mathangi Arulpragasam filed a petition under the Hague Convention seeking an order directing Respondent Benjamin Bronfman to refrain from retaining their son in New York and allowing Petitioner and son to return to England.

Petitioner requested that the following information be redacted from all court filings: 1. "[A]ll identifying information about the [c]hild (to protect his privacy and safety), including his name, the school he is now attending" and certain other personal information regarding the child; 2. "[I]dentifying information about [P]etitioner (to protect her safety and effectuate the [c]hild's privacy concerns)," to include Petitioner's home address and other personal information; and 3. "[T]he names of the parties (to effectuate the foregoing), including revision of the caption to be 'Anonymous v. Anonymous.' "

The Court granted the first two requests and denied the third request. It observed that this was not a child custody case, and was not governed by New York law, but by a treaty which Petitioner did not assert provided for the sealing of this proceeding. Petitioner argued that the Second Circuit's decision in United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995), supported the redaction of the personal information requested. The Court agreed with Petitioner that some of the information that Petitioner sought to redact from the filings should be redacted. Pursuant to Rule 5.2 of the Federal Rules of Civil Procedure, parties are required to redact certain personal information from all documents filed with the Court, including the name of the child. As to the other personal information Petitioner sought to redact, the Court found that such information should be redacted from all filings.

The Court denied Petitioner's third request which sought to conceal the identity of the parties in this case and to identify them as Anonymous v. Anonymous. Petitioner's only argument in support of this request was that "removing the parties' names from the caption will lessen the likelihood of interest being directed toward" the case. The Court held that the public's interest in Petitioner is not a legal basis for sealing this proceeding, nor is it a legal basis for anonymity. In Sealed Plaintiff v. Sealed Defendant, the Second Circuit discussed the standard governing the use of pseudonyms in civil litigation. 537 F.3d 185, 189-90 (2d Cir.2008). The court stated that "the interests of both the public and the opposing party should be considered when determining whether to grant an application to proceed under a pseudonym. Accordingly, we ... hold that when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." Id. at 189.The Second Circuit held that the balancing of interests entails the consideration of several factors citing. It noted that this list is non-exhaustive and district courts should take into account other factors relevant to the particular case under consideration Although Respondent did not oppose Petitioner's requests, Petitioner did not convince the Court that the balance of these factors weighed in her favor.

Walker v Walker, 2013 WL 1110876 (N.D.Ill.) [Australia] [Habitual Residence] [Age & Maturity] [Petition Granted]

In Walker v Walker, 2013 WL 1110876 (N.D.Ill.) in early May 2011, Iain Walker, a citizen of Australia, filed suit against his then wife Norene Walker, a United States citizen, seeking to compel her to return their three children to Australia. In September 2011, another judge of the court conducted a bench trial on the petition, and, on October 20, 2011, he ruled in Norene's favor. The court of appeals in Walker v. Walker, 701 F.3d 1110, 1114 (7th Cir.2012), overturned as insufficiently supported the district judge's determinations that the United States was the children's habitual residence at the relevant time; that Iain had abandoned the children and was not exercising his rights of custody at the relevant time; and that Iain had consented to the children remaining in the United States. The court remanded the case for further proceedings setting forth in its opinion the crucial issues which were not fully developed in the previous proceedings, and directed that the district court resolve at least the following questions: 1. What was Iain and Norene's mutual intent regarding the trip to the United States in June 2010? Was this intended as an extended vacation or as a permanent move? 2. What has been the precise nature of Iain's participation in the Illinois divorce proceedings, and to what extent, if at all, does this participation indicate that Iain either consented to or acquiesced in the children's retention in the United States? 3. To the extent the children have "attained an age and degree of maturity at which it is appropriate to take account of their views," [ Hague Convention] Art. 13, what is the children's attitude to being returned to Australia? In conducting this inquiry, we caution that the district court must be attentive to the possibility that the children's views may be the product of "undue influence" of the parent who currently has custody. 51 Fed.Reg. 10510.

The district court observed that the first step, was to determine the children's habitual residence at the relevant time. As the Seventh Circuit stated in its decision in this case, to prevail, Iain was "required to show that Australia was the children's habitual residence at the time of their retention in the United States." Walker, 701 F.3d at 1119. It found that the time of the children's retention in the United States by Norene was, at the latest, late January 2011. Norene testified that this was when she first formed the intention to remain in the United States and not return the children to Australia. It was undisputed that the Walkers resided in Australia from 1998 through June 2010. In a case of alleged wrongful retention, a court determines a child's habitual residence "by asking whether a prior place of residence was effectively abandoned and a new residence established by the shared actions and intention of the parents coupled with the passage of time." Walker, 701 F.3d at 1119." Because the parents often dispute their intentions, the court should look at actions as well as declarations in determining whether the parents shared an intent to abandon a prior habitual residence." Iain had proven by a preponderance of the evidence that the Walkers did not have a shared intention to abandon their residence in Australia and establish a new residence in the United States. This proposition was amply established by the testimony of both parties as well as their earlier statements and actions and the circumstantial evidence. Iain and Norene were married in Chicago, where Norene's parents lived, in 1993. They lived in Seattle, Washington until 1998, and their first child was born there in 1997. They moved to Perth, a city in Western Australia, in 1998, when their first child was about one year old. Iain and Norene's two younger children were born in Australia in 1999 and 2001. Norene testified that she and Iain initially intended to live in Australia for five years and then relocate to the United States. She testified that she agreed to marry Iain only on that condition. They actually lived together in Australia, however, for twelve years, until 2010. As the Seventh Circuit stated in its ruling, and as the evidenced presented to this Court showed, [o]ver this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children. Iain, Norene, and their children traveled to the United States in June 2010. The Seventh Circuit stated, and the Court found based on the evidence presented, that "[w]hen they left Australia, both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year." Norene contended, however, that this trip was intended "as an extended prelude to a permanent move to the United States." Norene testified that  she married Iain on the condition that after five years, they would relocate in the United States. She contended that the June 2010 trip represented the fulfillment of that condition, or at least the initial steps toward its fulfillment. Iain contended, by contrast, that they intended for Norene and the children to live with Norene's parents in Chicago while the family demolished their house in Perth and built a new one, at which point Norene and the children would return to Australia and resume living there indefinitely.

It was undisputed that their home in Perth was demolished and that construction of two new homes on the property was to begin thereafter. Iain said that the family planned to live in one; Norene said they planned to sell both. The evidence overwhelmingly showed that Iain and Norene did not have a "shared intention" to abandon residence in Australia and establish residence in the United States at any time relevant to this case. The Court found credible Iain's testimony that he did not intend to relocate himself or the family permanently to the United States and that the purpose of the extended stay in this country was to allow demolition and reconstruction of the family's home in Perth. The Court also found credible Iain's testimony that he did not participate along with Norene in what she described as initial efforts to look for a home in the United States. The Court did not doubt that Norene may have wanted to eventually establish residence in the United States. The Court found that Iain and Norene's mutual intent regarding the June 2010 trip to the United States was that it was not a permanent move or even a prelude to a permanent move. Rather, it was a temporary stay. At most the trip was an extended leave of absence from Australia with the intent to return to their permanent residence that country. There was no shared intention to abandon Australia as their residence and establish residence in the United States. The children's habitual residence was Australia as of the time of the alleged wrongful retention.

The Court found that Norene's retention of the children was in breach of Iain's custody rights under Australian law. It was not seriously disputed that Iain had, at the relevant time, the right of joint custody of the children under Australian law. The Court considered Norene to have forfeited this argument due to the utter absence of any reasonable effort by her counsel to support it; leaving it to the Court to wade through a complex and detailed 700-plus page statute did not cut it. The Court found that Iain had met his burden of providing that Norene's retention of the three children, which took place at the latest in late January 2011, breached his rights of custody under the law of Australia, which is where the children were habitually resident immediately before the retention. The Court also found that Iain was actually exercising his rights of custody up through and at the time of Norene's retention of the children.

The district judge who conducted the first trial concluded that Iain had abandoned the children after returning to Australia in July 2010 and at the latest in January 2011. This conclusion appeared to have been based largely on evidence that the Seventh Circuit concluded should have been excluded for this purpose. One way or another, however, the Court disagreed with the previous judge. The admissible evidence was all to the contrary. There was no abandonment of the children by Iain, and he was actually exercising his custody rights at the relevant time. The Court concluded that Iain established the necessary elements of a claim of wrongful retention under article 3 of the Hague Convention.

Norene contended that Iain had consented to, or subsequently acquiesced in, the retention of the children by Norene in the United States. She failed to prove either by a preponderance of the evidence, and the evidence was not close. Iain took prompt steps to seek relief via the Hague Convention.He has consistently and diligently pursued his petition for relief under the Convention and ICARA ever since that time, through the present day. In arguing acquiescence, Norene relied on Iain's participation in the Illinois divorce proceedings, and perhaps on his later non-participation in those proceedings. Iain participated in the Illinois divorce proceedings via counsel until approximately the end of January 2012. Nothing about his participation in the case suggested acquiescence in the children's retention in the United States. There was nothing about Iain's actions that suggested that this represented acquiescence in the children's retention in the United States. Even while ceasing participation in the Illinois divorce case, Iain continued to pursue vigorously in the court and on appeal his challenge to Norene's retention of the children.

The third question posed by the court of appeals involves the application of the child objection provision of the Hague Convention. Article 13 of the Hague Convention states that a judicial authority "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."Hague Conv. art. 13. During the initial trial before the previous judge, each of the three children was questioned in the presence of counsel but not the parties, informally, while sitting around a table. The Court followed the same practice at the trial just conducted. The three children were a fifteen year old girl who would turn sixteen on March 18 of that year, a thirteen year old boy who would turn fourteen in August, and an eleven year old girl who would turn twelve in June.. The older daughter had a sheet of handwritten notes that she consulted from time to time. All of the children were doing well in school, better than they were doing during the period shortly after they first came to the United States. All of them were involved in activities here. They expressed the view that there were better opportunities here than in Australia. The children all reported that they like living here and with their mother. They also all reported that they had frequent contact with their father by telephone and Skype. The oldest daughter still had contact with some of her friends from Australia, and all of them remembered living there and that they liked it when they were there. The middle child stated that he was a bit angry with his father and disappointed that his father had "ordered a retrial," which he said he had learned from his mother. (The Court attempted to explain to him that the "retrial" had been ordered by judges, not by his father.) All three of the children expressed their desire to remain in the United States, with their mother. The Court found that the two older children had reached an age and maturity at which it was appropriate to take account of their views. The Court assumed for purposes of discussion that the younger daughter likewise has reached a sufficient age and maturity for the article 13 provision to apply.

It observed that a court must take care not to give significant weight to a child's views if the child has been unduly influenced by the respondent parent. See, e.g., Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262, at *5 (N.D.Ill. Oct. 24, 2012) There was evidence of that here. First, as indicated earlier, the middle child's apparent anger with his father arose rom his mother having told him that his father "ordered a retrial." Second, each of the children made reference to better "opportunities" for education and otherwise, using very similar terminology. The Court might have regarded this as independently derived had it come only from the Walkers' oldest daughter, a high school sophomore, or perhaps from their son, an eighth grader. After the two older children spoke, however, the youngest child, after some initial introductory questions, began her statement about the relevant topics by talking about better education and a lot more opportunities here than in Australia. Given the three children's remarkably similar statements in this regard, the Court was constrained to conclude that their statements were subject of some degree of influence, and it was reasonable to infer that this was from their mother. Even were that not the case, although the Court found the children quite likeable and respects their views, the circumstances did not warrant giving their views controlling weight. As of the date of the trial, they had been in the United States for just three months short of three years. They had become acclimated to living here, and they had become settled in. It was both understandable and predictable that they did not now wish to relocate. It wsa likewise understandable and predictable that they had a far closer connection with their mother, with whom they have lived for this extended period, than with their father. But all of this was, at least in significant part, a direct result of their wrongful retention here by Norene. As the Third Circuit noted in Yang,"[a] lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home." Yang, 499 F.3d at 280. In such a case, "application of the exception ... would reward [a respondent] for violating [a petitioner's] custody rights, and defeat the purposes of the Convention."

The Court entered judgment in favor of the petitioner and directed the respondent to immediately return the parties' three children to petitioner in Australia.

Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) [Mexico] [Habitual Residence][Rights of Custody] [Grave Risk of Harm] [Article 16 & 17] [Petition Granted]

In Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) Petitioner Amelia Aguilar Bernal filed a Verified Petition for Return of Children. Petitioner Bernal and Respondent Gonzalez were citizens of the Republic of Mexico; were married in Elk Point, South Dakota, on January 31, 2003; and were the parents of four children: A .B. (male), C.G.B., C.D.B., and A.B. (female). The children were all born in the United States of America and were United States citizens. A.B. (male) was born in 1996 in California and was currently sixteen years old. C.G.B. and C.D.B. were ten year old twins, born in Iowa in 2002. A.B. (female) was five years old, also born in Iowa, in 2007. In 2008, Petitioner and Respondent moved to Guasaves, Sinaloa, Mexico, from the United States, with their four children. There, Respondent purchased land and built a house. A.B. (male), C .G.B., and C.D.B. attended school in Guasaves, Sinaloa, Mexico. A.B. (female) was at home with Petitioner or family members. Petitioner took care of the children while Respondent worked in the United States. Petitioner and Respondent had marital problems and separated in 2010.

On December 16, 2010, Petitioner and Respondent entered into an agreement regarding the care of their four children at the Desarrollo Integral de La Familia (1) Respondent would pay $1500.00 Mexican pesos per week for support of A.B. (male), C.G.B., C.D.B., and A.B. (female); and (2) Respondent would have weekend visitation rights. The agreement restricted Respondent's visitation to locations within Sinaloa, Mexico. Respondent and Petitioner signed the agreement and each placed inked thumb prints on the document. After signing the agreement, Respondent returned to the United States to work. At some point in March of 2011, Respondent returned to Guasaves, Sinaloa, Mexico, with the intent to retrieve his four children and move them to the United States. On or about March 25, 2011, Respondent picked up A.B. (male), C.G.B., C.D.B., and A.B. (female) from Petitioner for a weekend of visitation as per their written agreement. On or about March 25, 2011, Respondent took A.B. (male), C.G .B., C.D.B., and A.B. (female) to the United States. Petitioner never consented to the initial removal of her four children to the United States and never subsequently acquiesced to the removal of the children. Petitioner diligently pursued the location and return of her children. On or about March 28, 2011, Petitioner reported Respondent's taking of the children to the Ministerio Publico in Guasaves, Sinaloa, Mexico.

On July 12, 2011, Petitioner signed an Application for Return of Children. Upon leaving Mexico, Petitioner first took A.B. (male), C.G.B., C.D.B., and A.B. (female) for a brief stay in San Diego, California. From California, they moved to Nebraska. From information provided to her by her aunt, Petitioner learned A.B. (male), C.G.B., C.D.B., and A.B. (female) were in Nebraska soon after their arrival there.. Petitioner requested that Respondent return the children to Mexico and he refused. Respondent moved A.B. (male), C.G.B., C.D.B., and A.B. (female) from Nebraska to Crane, Texas. Respondent filed for divorce in a Texas court on May 2, 2012. A default judgment was entered by the Texas court on July 26, 2012. Respondent was awarded sole managing custody.

Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Children on August 27, 2012. The court found that the Republic of Mexico was the country of habitual residence for A.B. (male), C.G.B., C.D.B., and A.B. (female) prior to their removal on or about March 25, 2011. Petitioner proved by a preponderance of the evidence that C.G.B., C.D.B., and A .B. (female) were wrongfully removed from their country of habitual residence. Petitioner had rights of custody under the laws of the State in which the children were habitual residents immediately before removal and was exercising those rights before removal. Respondent's removal of C.G.B., C.D.B., and A.B. (female) breached Petitioner's rights of custody.

The court observed that the the Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012). The inquiry balances the interests of the child with the intentions of the parents. Larbie, 690 F.3d at 310. A court's "inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case." When determining a child's country of habitual residence, analysis focuses on the "parents' shared intent or settled purpose regarding their child's residence." Here the facts indicated that both parents shared the intent that Guasaves, Sinaloa, Mexico, was their children's residence prior to removal. Petitioner clearly established that in 2008, Petitioner and Respondent, together, moved their children, A.B. (male), C.G.B., C.D .B., and A.B. (female), from the United States to Sinaloa, Mexico. Once there, Respondent purchased land and built a home. Further, the children were enrolled in and attended the local Mexican public schools. Moreover, Respondent left the children in Mexico with Petitioner for months at a time while he worked in the United States. Habitual residence is determined by looking at the parents' intent or settled purpose prior to removal. See Larbie, 690 F.3d at 310. The parents' mutual decision to move their children to Mexico from the United States and establish roots in Guasaves, Sinaloa, Mexico, provided strong evidence of shared parental intent to make Mexico their children's country of habitual residence. Further evidence of shared parental intent and settled purpose was provided by the parents' signed written agreement, outlining Respondent's voluntary agreement to a visitation arrangement in Mexico.

Rights of custody was to be determined by the application of the laws of the Republic of Mexico. Petitioner Bernal asserted that the parties voluntarily executed a legally enforceable custody agreement under Article 17 of the Sinaloa Civil Code. To assist in proving that the document was a legally enforceable custody agreement under the laws of the Republic of Mexico, Petitioner submitted into evidence an affidavit by Mexican attorney Mariano Nunez Arreloa which explained relevant Mexican laws. When interpreting issues of foreign law, Federal Rule of Civil Procedure 44.1 allows a liberal approach to evidentiary rules, thus making Mariano Nunez Arreola's affidavit acceptable proof of Mexican laws. The State of Sinaloa, Mexico, in accordance with the Sinaloa Civil Code adhered to the legal doctrine of patria potestad. See Sina. Civ.Code, tit. 8, ch. 1, art. 412 et seq.; "Pursuant to that doctrine both parents have joint custody

rights." The Court found that the agreement between Petitioner and Respondent was valid under the laws of the State of Sinaloa, Mexico. Furthermore, the agreement gave Petitioner specific rights of custody as defined by the Convention. Petitioner proved by a preponderance of the evidence that Respondent took C.G.B., C.D.B., and A.B. (female) in breach of Petitioner's rights of custody under the laws of the children's habitual residence-the Republic of Mexico ,and that such rights were exercised at the time of removal.



In support of his "grave risk" affirmative defense, Respondent argued that the narrow exception to return of the children to Mexico applies because the ongoing cartel violence in Guasaves, Sinaloa, Mexico, posed a grave risk; and Petitioner was less fit than Respondent to care for their children. The court found that Respondent failed to establish by clear and convincing evidence that there was a grave risk that return of C.G.B., C.D.B., and A.B. (female) would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation. Respondent argued that the following provided evidence that return would expose the children to physical or psychological harm or place the children in an intolerable situation: (1) the ongoing cartel violence in Guasaves, Sinaloa, Mexico; Respondent testified to observing what appeared to be dead bodies in the river near their home in Guasaves, Sinaloa, Mexico. (2) an occurrence in which A.B. (male) was a passenger in a vehicle stopped at gunpoint by alleged cartel members; A.B. (male) testified that he was in a vehicle with his uncle, grandmother, and cousin. The vehicle was stopped by armed men and a gun was pointed at his uncle. A.B. (male) further testified that the armed men were not police and were looking for people in a similar vehicle. The armed men allowed them to leave.

The Court held that ongoing violence in the Republic of Mexico was a serious concern; however, the general cartel violence in Mexico, and specifically the testimonial evidence, did not constitute the clear and convincing evidence necessary to trigger the grave risk of harm exception. Moreover, courts have refused to extend the grave risk of harm exception to cases in which return of a child was to a country facing similarly violent sociopolitical disruptions as those currently confronting the citizens of the Republic of Mexico. Respondent demonstrated that the ongoing violence in Mexico posed serious risk: however, Respondent failed to show that the risk to the children was grave. Respondent failed to show that the conditions in Guasaves, Sinaloa, Mexico, equated to a "zone of war, famine, or disease." Respondent's grave risk of harm defense based on the cartel violence in Mexico was denied.

Respondent presented evidence that Petitioner possibly over-consumed alcohol; possibly entertained late night visits by men seeking money; failed to provide a clean house for the children; did not have employment; failed to provide the children with properly fitting clothing and shoes with money supplied by Respondent; and failed to rid the children of lice infestation. At trial, much was made over an incident in which A.B. (female) was stung by a scorpion at approximately 10:00 p.m., while staying at her grandparents' home. The child was rushed to the local hospital for treatment. Petitioner could not be immediately located, however, Petitioner testified that once she learned of the scorpion incident she went to the hospital and found that A.B. (female) had already been released. Although the evidence presented did not paint Petitioner in a pleasant light, Respondent failed to present any evidence of serious neglect or abuse to satisfy the grave risk of harm exception. The grave risk of harm defense was not intended to be used by a respondent as a vehicle to litigate the child's best interests.

When a petition for return of child is commenced in a court after one year from the date of removal, the respondent can assert an affirmative defense and prevent removal back to the country of habitual residence if respondent proves by a preponderance of the evidence that the child is now settled into the new environment. 42 U.S.C. § 11603(e)(2)(B); Convention, art. 12. Petitioner filed suit five months after the deadline. However, Respondent never raised the settled into new environment affirmative defense. Convention, art. 12. It was not raised in his answer, supplemental briefing, post-trial briefing, or at trial. Petitioner urged the Court to treat the Article 12 affirmative defense as waived because Respondent never asserted the defense. See Fed.R.Civ .P. 8(c)(1) (requiring parties to plead affirmative defenses)." Nevertheless the court held that Petitioner was never per se ambushed by an Article 12 settled into new environment defense because Respondent never raised the defense at any time over the course of the proceedings. Petitioner was well aware of the potential for an Article 12 affirmative defense based on the delayed filing of Petitioner's Verified Petition for Return of Children. However, the Court was mindful that by exercising its "contingent discretionary power" and examining Respondent's unpleaded Article 12 affirmative defense, Petitioner might be prejudiced by her inability to respond and assert a potentially viable equitable tolling defense, available to petitioners that fail to meet the one-year filing deadline under the Convention.

Through the exercise of the Court's "contingent discretionary power" to examine Respondent's settled into new environment affirmative defense under Article 12 of the Convention, it held that substantial evidence had not been presented to the Court to prove by a preponderance of evidence that C.G.B., C .D.B., and A.B. (female) were now settled into Crane, Texas; thus, there was no exception to return under the Convention. See 42 U.S.C. s 11603(e)(2)(B).

Respondent asserted that a default judgment divorce, entered by a Texas court on July 26, 2012, in which the Court awarded Respondent sole managing custody over the children was a defense to the return of C.G.B., C.D.B., and A.B. (female) to their country of habitual residence-the Republic of Mexico. The court pointed out that the Convention provides that state court actions "shall not decide ... the merits of rights of custody until it has been determined that the child is not to be returned" to the country of habitual residence in cases of wrongful removal under the Convention. Convention. art. 16. Furthermore, ICARA expressly prohibits a court from deciding the underlying merits of a custody dispute. 42 U.S.C. § 11601(b)(4). Under Article 17, that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. Significantly, the Court's determination that C.G.B., C.D.B., and A.B. (female) were wrongfully removed from their country of habitual residence under the Convention preempted the default judgment in state court that awarded sole managing custody. Respondent's award of sole managing custody under the laws of Texas was no defense to the return C.G.B., C.D.B., and A.B. (female) to the Republic of Mexico. The Texas court did not have the authority to decide the custody of the children and assign Respondent sole managing custody while the suit for return of children under the Convention was pending. Convention, art. 16.