Skolnick v. Wainer, (Cite as: 2013 WL 5329112 (E.D.N.Y.)) [Singapore] [Federal & State Judicial Remedies] [Jurisdiction][Venue]

In Skolnick v. Wainer, (Cite as: 2013 WL 5329112 (E.D.N.Y.)) Fred Jay Skolnick commenced an action on August 21, 2013, for the return of his five children from Singapore by respondent, Andrea Wainer, his wife, claiming that the removal violated the Hague Convention. Petitioner asserted that the Court had jurisdiction pursuant to 42 U.S.C. 11603(a) and (b), since "Petitioner and Respondent jointly own residential property in this judicial district and ... the children that are the subject of this action were transported into the United States through airports located in ... Queens, New York." At a conference on September 3, 2013, the Court reiterated concern that the action was not properly brought in this district in light of evidence that the children had been residing in Connecticut since before the commencement of the action. Respondent moved for a change of venue. Petitioner filed a letter motion to change venue. It appeared that both sides agreed to transfer the action.

The court observed that Congress enacted ICARA to establish procedures for implementation of the Convention in the United States. ICARA provides that a "person seeking to initiate judicial proceedings under the Convention for the return of a child... may ... commenc [e] a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 42 U.S.C. § 11603(b). "Located" under ICARA does not require a showing of residency but contemplates the place where the abducted children are discovered. See Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998) (interpreting 42 U.S.C. s 11603(b)). In applying this clause federal courts have dismissed ICARA petitions where children were not located in the jurisdiction of the court at the time the petition was filed. See, e.g., Olangues v. Kousharian, 177 Fed. App'x 537, 538 (9th Cir.2006) (determining that the district properly dismissed an ICARA claim for lack of jurisdiction because the children were not within that district at the time the petition was filed); Diorinou v. Mezitis, 132 F.Supp.2d 139, 145-46 (S.D.N.Y.2000) (confirming its prior conclusion that the district court had no jurisdiction over the ICARA petition because the child was not in the jurisdiction at the time the petition was filed); see also Espinoza v. Mattoon, 2009 WL 1919297 (W.D. Wash. June 30, 2009) (sua sponte dismissing, for lack of subject matter jurisdiction, an ICARA petition brought in a jurisdiction where the child was not located). Although these courts treated the dismissal under 42 USC § 11603(b) to be "jurisdictional" in nature, some have referred to the provision as concerning venue. See, e.g., Saldivar v. Rodela, 879 F.Supp.2d 601, 613 (W.D.Tex.2012) (interpreting § 11603(b) to be a venue provision, and finding that venue was proper where the child was located in the district when the petition was filed"); East Sussex Children Servs. v. Morris, No. 12-cv-141, 2013 WL 704660, at *1 (N.D.W.Va. Feb. 27, 2013) ("Venue is appropriate because ICARA provides that a Hague Convention petitioner can bring [such an] action only in the place where the child is located.").

The Court observed that the Second Circuit has not addressed the issue of whether the requirements in §11603(b) implicates jurisdictional or venue concerns. It held that it did not have to resolve this issue in light of the general agreement of both parties to continue the litigation in Connecticut. District courts may, in cases where they lack subject matter or personal jurisdiction, or proper venue, transfer a case "in the interest of justice." (See 28 U.S.C. ss 1404, 1406, 1631). Both parties consented to transferring the action to the District of Connecticut, and no evidence had been presented demonstrating that the children were in the Eastern District of New York when the petition was filed. Given the importance of speedy adjudication of the claim in this action and the consent of both parties to the transfer to a court authorized to hear the case, the Court found that transfer to the District of Connecticut was in the interests of justice, without deciding whether § 11603(b) refers to jurisdiction or venue, and ordered that the action was transferred to the District of Connecticut.

Gee v Hendroffe, 2013 WL 5375294 (D.Nev.) [South Africa] [Federal & State Judicial Remedies] [Jurisdiction] [Venue]

In Gee v Hendroffe, 2013 WL 5375294 (D.Nev.) Petitioner filed his Petition for return of Children and Motion Warrant in Lieu of Habeas Corpus in the United States District Court for the District of Nevada on August 30, 2013. The court scheduled a hearing for September 4, 2013. At the hearing on September 4, 2013, the Court raised the issue of whether it had subject matter jurisdiction over this litigation. The Court ordered Petitioner to meet his burden of establishing jurisdiction and ordered Respondent to provide her airline ticket or other evidence to her Nevada attorney, which indicated when she left Las Vegas, Nevada, for Malaysia.

Respondent filed a Motion for Dismissal in which she stated that she was not served with the Petition until September 4, 2013, and that she and the children left the state of Nevada on August 27, 2013, and left the United States on August 31, 2013. Respondent attached an email from Petitioner's counsel's office which informed her of the September 4, 2013, hearing and provided her with a copy of the Petition as well as this Court's order setting the hearing. Respondent also attached a debit card statement for a card which was used in California as early as August 27, 2013, and copies of the airline tickets she and the two children used to fly from Los Angeles, California to Malaysia on August 31, 2013.

Shortly after Respondent filed her motion on September 5, 2013, Petitioner filed a Motion Under Hague Convention for Entry of a Temporary Restraining Order and a  UCCJEA Warrant. Attached to his motion was an Affidavit signed by Respondent and notarized in Las Vegas, Nevada at 10:30 a.m. on August 30, 2013. On September 6, 2013, prior to the hearing, Respondent filed a Declaration of Yasmin Acevedo, a friend of Respondent since 2011, who lived in Las Vegas. According to the Declaration, Ms. Acevedo accompanied Respondent and the two children to California on August 27, 2013, where they visited some family friends and local attractions. Thereafter, Ms. Acevedo represented, on August 30, 2013, Respondent returned to Las Vegas to attend to some legal matters while she and the children stayed in California. Ms. Acevedo concluded that she accompanied Respondent and the Children to the airport for their departure to Malaysia.

The Court set an evidentiary hearing concerning jurisdiction for October 8, 2013, and ordered all parties, including the children, present in person at the hearing.

The district court pointed out that any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 42 U.S.C.A. § 11603.

The Ninth Circuit has recognized, "located" has a particular meaning in the context of ICARA, distinct from "a traditional residency test." Holder v. Holder,305 F.3d 854, 869 (9th Cir.2002) n. 5; citing Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998). It means "the place where the abducted children are discovered," and is more equivalent to the concept of physical presence. Here, the evidence showed that once Petitioner discovered that the Children were in Las Vegas, and that Respondent likely did not intend to return to South Africa with the children, he promptly filed his petition for return of the children. Under the Holder/Lops common sense definition of "located" and in light of the Convention's purpose of providing an "expeditious avenue" for seeking return of
children, this was sufficient to establish jurisdiction. Respondent's contention that the children were in California with Ms. Acevedo on or around August 27, 2013, was irrelevant because Petitioner had no knowledge of that alleged trip, the children were discovered in Las Vegas, and by Respondents own admission, the children had been located in Las Vegas from July 11 until at least August 27. Further, the Court found that Respondent's argument that the children were in California was not credible. The debit card statements provided by Respondent had no name attached to the card and the affidavit of Ms. Acevedo did not come until after Petitioner provided proof that Respondent was in Nevada on August 30, 2013. Additionally, the legal documents that Respondent signed and notarized in Law Vegas on August 30, 2013, were documents for an Australian legal action, and could have been signed and notarized in California as well. The Court found that the evidence showed that the children were located in Nevada at the time the Petition was filed. Accordingly, the Court found that it had jurisdiction over this matter.

Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Spain] [Consent] [Petition Denied]

[Spain] [Consent] [Petition Denied]

In Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Not for Publication] Petitioner Antonio Osuna Caro and Respondent Beruzka Mesa Sanchez were married in 2007 in Sevilla, Spain. Their daughter was born in 2008. Both parents were still married and shared custody of the Child under Spanish law. The family lived together in Sevilla until the fall of 2011. On September 30, 2011, Ms. Sanchez and the Child traveled to New Jersey and resided there since that date.

Caro alleged in his Petition that the purpose of the trip was to allow Sanchez a short-term visit with her seriously ill mother. Caro states that he believed Sanchez and the Child would return to Spain in October 2011, but that the return date was extended

by his wife because her mother was still ill. On September 17, 2012, Caro filed an Application for Return of the Child with the Ministry of Justice in Spain, which triggered the U.S. State Department to send a Voluntary Return Letter dated November 29, 2012 to Sanchez, asking her to "consider voluntarily agreeing to return the child to Spain in order to avoid the applicant's initiation of legal proceedings in the United States under the Hague Convention."Sanchez allegedly did not respond. This Petition for Return of the Child to Spain was filed on May 31, 2013.

Sanchez's submitted undisputedly authentic documents to support her factual averrals. She averred that she and her husband jointly decided to move to the United States with the Child. Acting on that plan, in May 2011, Mr. Caro filed an application seeking authorization to travel to the United States under the Visa Extension Program, which would enable him to stay for an extended duration in this country. In September 2011, Sanchez and the Child traveled to New Jersey as "the initial step
of relocation for the family." The family began investigating the possibility of purchasing a house in New Jersey. This fact was supported by a letter from the Realtor with whom they both met to search for a home to buy, as well as financial documents submitted by Caro to be used to qualify for a mortgage to buy real estate in New Jersey. When Caro visited New Jersey in December 2011, he brought along the family dog to live here. Ms. Sanchez averred that while her husband was in the United States on that trip, they jointly continued their search for a house. In mid-2012, Sanchez became employed in New Jersey, rented an apartment with her mother, and enrolled the Child in a Head Start Program. In December 2012, Sanchez received the Voluntary Return Letter from the U.S. State Department. When Sanchez asked Caro about the letter, he said he had requested the letter so as not to lose custody of the Child. In January 2013, Caro again visited Sanchez and the Child in New Jersey.

Sanchez filed a complaint for custody and child support in New Jersey Superior Court on February 1, 2013. On April 27, 2013, Caro sent Sanchez a letter describing his frustration in his job search for a foreign position (he was a Spanish attorney) saying: ... I don't have good news. I've finally been able to speak to someone in charge of the Ministry of Foreign Affairs. They are not going to give me, not even one of the posts/jobs I've applied for at the Embassies and Consulates. The reason is a technical problem that makes no sense explaining it now. There are still other possibilities; but they are more remote. I have to make some contacts with other organizations. I am not going to give up. I will find some alternative. But it is true that the plan for us to go live in another country seems that it will not be possible at this time. One month later, Caro filed the Petition, claiming that his Child had been abducted. Sanchez states that Caro filed the Petition because he realized he would not be able to easily find employment and join the family in the United States. He did, however, in the letter a mere month before claiming child abduction, state that he was continuing to persevere in that job search. 

Caro filed the Petition for Return of the Child on May 31, 2013. He disclosed almost none of the above facts. He initially sought, and was granted temporary restraints based upon his ex parte submissions. However, those were vacated after Caro failed to effect timely service of the Petition in accordance with the Court's Order.  The Petition by Mr. Caro alleged that Ms. Sanchez wrongfully retained the Child in New Jersey. Sanchez did not contest that Caro had custody rights over the child, and that he continued to exercise those rights. Caro claimed that the child was wrongfully retained in New Jersey after a trip from Spain to New Jersey to visit her mother which Caro claimed was intended to be of short duration, while Sanchez has submitted contemporaneous unrefuted documentation showing that the shared intention of the parties when she and the Child left Spain was to establish a new family residence in the United States. Even the family dog relocated here. In light of the documentary evidence presented by Sanchez, Caro's sworn statement that he did not intend for the Child to move to the United States was not credible. The Court found that at the time the Child traveled to the United States in the fall of 2011, both of her parents intended that she move to the United States. Caro and Sanchez jointly searched for a house and relocated the family dog to New Jersey. Caro's affidavit to the contrary was belied by his own heartsick letter, in which he acknowledged the family's plan to relocate away from Spain. There had been no wrongful retention. As of September 30, 2011, the Child's habitual residence had been in the United States. Caro could not unilaterally change the agreement for the Child to move to this country because he was unsatisfied with his job search and wished to alter the joint plan to relocate here.

Once the Court reviewed the papers, in light of Caro's inability to proffer any genuine evidence to meet his burden to prove wrongful retention, it became clear that there was no need for an oral evidentiary hearing to supplement the documentary evidentiary hearing that the Court conducted. The Petition For Return of the Child to Spain was denied.

Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) [Turkey] [Costs and Expenses] [Clearly Inappropriate]

In Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) Nurettin Ozaltin filed a Petition seeking the return of his two minor children, S.E.O. and Y.O., to Turkey, and the enforcement of court-ordered visitation so long as the children remained in the United States. After a hearing the district court granted the Father's Petition and directed the Mother to return the children to Turkey. The Court also held that, because it was granting the Father's Petition, "[the Mother] will be required to pay any necessary costs [the Father] incurred in connection with [the] action." On appeal, the Second Circuit affirmed the Court's decision ordering the return of the children to Turkey but vacated the order insofar as it determined that the Mother would be required to pay "any necessary costs," and remanded the action for further proceedings. See Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir.2013). On the Father's renewed application for costs the court denied his application.

In its Ozaltin decision, the Second Circuit clarified that "a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of  equitable principles by the district court," directing lower courts to the equitable standards developed under the Copyright Act's discretionary fee award provision. The district court held that in applying this standard, the district court "must exercise its equitable discretion, balancing a variety [of] factors, including frivolousness, motivation, objective unreasonableness (both in factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and  deterrence." (citing Psihoyos v. John Wiley & Sons, Inc., No. 11 Civ. 1416, 2013 WL 1285153, at *2 (S.D.N.Y. Mar. 29, 2013) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). The district court noted that in vacating its earlier award of "any necessary costs [that the Father] incurred in connection with this action," the Second Circuit found that the Mother had maintained an objectively reasonable legal position throughout the case, and also noted concerns that, by bringing an action in this Court rather than before a Turkish court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. Ozaltin, 708 F .3d at 375. The Second Circuit concluded that "it would be clearly inappropriate to award all necessary expenses associated with the Father's action under the Hague Convention."

In light of what it perceived to be the standards articulated in the Second Circuit opinion, the district Court determined that an award of costs to the father was "clearly inappropriate" because the mother had a reasonable basis for removing the children to the United States, and the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court. In light of this conclusion, the Court did not address the parties' arguments as to their respective financial situations, or the adequacy of the Father's documentation of his expenses.

The district court noted that the Second Circuit found that a series of Turkish court orders implying that the children could live with the Mother in the United States gave the Mother "a reasonable basis for thinking at the time of removing the children to the United States in 2011 that her actions were consistent with Turkish law." Ozaltin, 708 F.3d at 375. After reviewing the various Turkish Court orders, the Court found that the Mother had a reasonable basis for believing that she could remove the children from Turkey and that, although such a mistake of law was not a defense to the return action itself, it is "a relevant equitable factor when considering whether a costs award is
appropriate." See Ozaltin, 708 F.3d at 375-76. The district court also observed that the Second Circuit pointed out its concerns that, by bringing an action in the district Court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. In the summer of 2011, during the children's temporary return to Turkey, the Father filed a petition with the Turkish Ministry of Justice to bar the Mother from removing the children from the country. The Ministry responded that, because the children were then in Turkey, no other procedure could be carried out in accordance with the Hague Convention. Ozaltin, 708 F.3d at 376. The Ministry instead directed the Father to make an application to the relevant Turkish court to "take the necessary measures to prevent the residential address of the children [from] be[ing] change[d]."Rather than applying to the Turkish Court for such an order however, the Father waited until the children left Turkey and then filed the Hague petition. After the district Court granted the Father's return petition, the Father returned to the Turkish Court and argued that this Court's order precluded the return of the children to the United States, despite the fact that the order clearly stated that it did not resolve the underlying custody dispute between the parties. The Court found that, unlike the Mother, who "has consistently submitted to the jurisdiction of Turkish courts with respect to all divorce and child-custody matters," the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court as recommended by the Turkish Ministry of Justice in 2011. See Ozaltin, 708 F.3d at 376. Given the equitable nature of cost awards, the Court concluded that the Mother had met her burden of establishing that awarding any costs to the Father would be clearly inappropriate.

Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) [Turkey] [Now Settled][Equitable Tolling][Guardian Ad Litem]

In Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) the district court denied the petition of Ismail Ozgur Yaman ("Yaman") for return of his two daughters, E.Y., now 10, and K.Y., now 11, to Turkey, pursuant to the Hague Convention. There was no question that the habitual residence of the children was Turkey, that Yaman had been given custody of the children by the Turkish courts, that their American mother, Linda Margherita Yaman, a/k/a Linda Margherita Polizzi ("Polizzi"), wrongfully removed the children in 2007 and then hid them, and that this prevented Yaman from locating them and filing his petition for return until he recently found them. The First Circuit affirmed. It held that the Convention does not allow a federal district court to toll equitably the one-year period that must elapse before a parent can assert the "now settled" defense. The First Circuit also held that the Convention does not prevent the district court from ordering the return of "now settled" children, and the court erred in holding otherwise. The court, at that point, should analyze the return question under principles of equity consistent with the Convention's purposes, an analysis it undertook in its alternative holding.

On June 12, 2012, Yaman filed a petition in the District Court for the District of New Hampshire, requesting an order to return the two children to Turkey. Yaman also requested provisional remedies to ensure that both Polizzi and the two children remained in New Hampshire throughout the course of the proceedings. On June 15, 2012, the district court ordered provisional remedies and appointed a guardian ad litem to issue a report on the two children's behalf. One month before the court's scheduled evidentiary hearing, Yaman filed a motion to preclude Polizzi from asserting the affirmative "now settled" defense under Article 12 of the Convention. Yaman argued that Polizzi "should not be permitted to avail herself of t[hat] defense where she has, for years, actively and egregiously attempted to evade legal proceedings." The district court denied the motion. Yaman v. Yaman, 919 F.Supp.2d 189, 198 (D.N.H.2013). In an order dated January 28, 2013, the district court explained that neither the text nor the drafting history of the Convention supported the argument that Article 12's one-year period was subject to equitable tolling. Moreover, the district court observed, the Executive Branch had taken the position that equitable tolling does not apply. The district court noted that the judicial decisions of other signatory nations supported the proposition that Article 12's "now settled" defense does not equitably toll.

On January 22, 2013, the district court commenced a three-day bench trial, which included evening hearings. The court heard testimony from the mother about how settled the children were in the community, their friendships, their schooling, and her concealment of their location, among other things. The court also heard testimony from the guardian ad litem for the children, who testified that his interviews with their teachers showed no red flags, and that other witnesses confirmed that the children were assimilating well. The guardian ad litem, after a thoughtful explanation, concluded the children were unable to provide a mature judgment about where they should live. The court also considered the guardian ad litem's formal report and those of experts concerning each of the children. The district court denied Yaman's petition after trial. Yaman had made out his prima facie case for return, with Polizzi conceding both that she had removed the children in violation of Yaman's custody rights and that the children were habitually resident in Turkey immediately before they were removed. See Convention, art. 3. The district court also found that Polizzi had concealed the children after removal, and that Yaman had been diligent in his efforts to assert his rights under the Convention. The district court nevertheless denied the petition for return. The district court rejected Polizzi's argument that, pursuant to Article 13 of the Convention, return should be refused because it would pose a "grave risk" of harm to the children. The district court concluded that, in its best judgment, Polizzi's actions were ones of a "concerned but misguided mother." The district court found that the children were "now settled," applying the totality of the circumstances test articulated by the Ninth Circuit in Duarte, 526 F.3d at 576. The district court assigned particular weight to the guardian ad litem's testimony and report, describing it as "the best evidence on this point." Having found that the children were "now settled," the district court went on to hold that, in light of this finding, it lacked discretion to order the children's return under the language of Article 12. The court went on to hold in the alternative that, even if it did have authority to order the return of a child "now settled," it would not exercise that authority here. The district court articulated various considerations in favor of return, including the interest in a child's being "reunited with the parent ... from whom [she] w[as] wrongfully removed," the interest in "effectively punish[ing]" Polizzi, and the interest in "deter[ring] future clever abductors." On the other hand, the district court observed, the two children were of such ages that "attachments in a community [we]re particularly important," remarking "[t]he settlement issue would not be nearly so big in my mind if they were 14 or 15 or if they were three and five." Moreover, the district court noted, although Polizzi had made efforts to conceal the children's location, it "s[aw] very little evidence that she did anything that would be damaging to the ... children's psyche." This was consistent with the district court's more general observation that Polizzi had "acted under a mistaken but well-intentioned belief" regarding the safety of the children. The district court stated that punishing the mother would have, at best, a "very limited" deterrent effect.

The Fist Circuit rejected Yaman’s argument that the one-year period that triggers the availability of Article 12's "now settled" defense is subject to equitable tolling. If found no support in the text of the Convention for that interpretation, nor did it gain support from any extratextual source of evidence. The text of Article 12 does not address equitable tolling explicitly. It does, however, suggest that equitable tolling does not apply. It noted that Article 12 does not use a trigger such as "the date the petitioning parent discovered or could have reasonably discovered the child's location." See Lozano, 697 F.3d at 51 n. 8 ("It would have been a simple matter, if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child's whereabouts, to run the period ‘from the date that the petitioning parent learned [or, could reasonably have learned] of the child's whereabouts.’ But the drafters did not adopt such language." From the text, it was clear Article 12's one-year period does not operate as a statute of limitations. As the Second Circuit observed in Lozano: Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. 697 F.3d at 52.



Article 12's drafting history further supported the conclusion that the one-year period was not subject to equitable tolling. Courts of other signatory nations have most commonly held that equitable tolling does not apply to the one- year period that triggers the availability of the "now settled" defense. It note that in its carefully reasoned opinion in Lozano, as described, the Second Circuit held that Article 12's one-year period is not subject to equitable tolling. 697 F.3d at 50–55. By contrast, in Furnes v. Reeves, 362 F.3d 702, 723–24 (11th Cir.2004), the Eleventh Circuit considered the one-year period to be a statute of limitations. In Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008), the Ninth Circuit, too, considered the one-year period as a statute of limitations. The Court joined the Second Circuit's views.

The First Circuit agreed with Yaman that the district court erred when it concluded that it lacked authority to order the return of a child found to be "now settled." This conclusion was not supported by the Convention's text or history, and was contrary to the view of the Executive Branch and the views of the other circuits. See Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001) (recognizing discretionary authority to return "now settled" child); see also Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir.2009) (recognizing discretionary authority to return child even if one of Convention's affirmative defenses is established); Miller v. Miller, 240 F.3d 392, 402 (4th Cir.2001) (same); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) (same); Feder v. Evans–Feder, 63 F.3d 217, 226 (3d Cir .1995) (same). It pointed out that the Second Circuit concluded in Blondin, Article 12 "allows—but does not, of course, require—a judicial or administrative authority to refuse to order the repatriation of a child" just on the basis of settledness. 238 F.3d at 164. In reaching that conclusion, the Second Circuit treated the language of Article 12 as plainly permissive.

The First Circuit added that the language of Article 18 of the Convention reinforced its reading. According to Article 18, "[t]he provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time." Convention, art. 18. Polizzi argued that Article 18 merely serves to clarify that the Convention does not limit whatever power to return an authority might have under other laws. Even if this reading of Article 18 were correct—a point it did not decide—the other powers not limited by Article 18 include the power to order the return of a settled child. It found that power reasonably implicit in both Article 12 and Congress' grant to federal courts of jurisdiction over Hague Convention actions, which it presumed was enacted with awareness of the broad equitable powers that those courts customarily enjoy. A federal court has the more limited authority to order the return of a child who was "wrongfully removed or retained" despite her being "now settled." Courts of other signatory nations have held that the Convention confers upon a court the authority to weigh considerations such as concealment when determining whether to order the return of a child "now settled."

While no other circuit has addressed the "now settled" defense in particular, numerous circuits accept the general proposition that "courts retain the discretion to order return even if one of the [Convention's] exceptions is proven." Feder, 63 F.3d at 226; Miller, 240 F.3d at 402 (quoting Feder ); accord Friedrich, 78 F.3d at 1067 ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the
Convention."); Asvesta, 580 F.3d at 1004 (quoting Friedrich ).

The First Circuit held that the district court erred in finding it had no authority to order the return of a child found to be "now settled." It found that that Article 12 affords the court discretion to dispense with the "settled" inquiry— which can involve a fact-intensive inquiry into the child's living situation—when the court concludes that the circumstances justify ordering return regardless of the outcome of the settlement inquiry. For instance, the conduct of the concealing parent might be so extreme that return is called for irrespective of other circumstances. That authority is underscored by Article 18, which provides that "[t]he provisions of this Chapter [enumerating exceptions] do not limit the power of a judicial or administrative authority to order the return of the child at any time."

Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) [Ireland] [Temporary Restraining Order]

 

          In Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) Petitioner Elaine Mary Murphy's Ex Parte filed an Application for a Temporary Restraining Order enjoining Respondent William Milligan Sloan from removing their minor child from the jurisdiction of this Court pursuant to the Hague Convention on the Civil Aspects of International Child. The district court granted the application. According to the Petitioner's Verified Complaint and Petition for Return. Petitioner, a citizen of Ireland, sought the return of her eight-year-old daughter, E.. Petitioner and Respondent married and lived together in California in 2000. Their child, E., was born in 2005, during the marriage. In April 2010, Petitioner moved to Ireland with E., with Respondent's consent. Petitioner and E returned to the United States twice during the summer of 2010 before returning to Ireland so E. could start school in Kinsale, County Cork, Ireland.  Respondent resided, and continued to reside, in Marin County, California. He filed for divorce in Marin County Superior Court on October 25, 2010, That action was pending. E attended school in Ireland for the 2010, 2011, and 2012 scholastic years.  According to Petitioner, E. spoke Gaelic, and considered Ireland her home. E. had previously visited Respondent in the United States in 2010, 2011, 2012 and Easter 2013. On June 12, 2013, Respondent arrived in Kinsale to pick up E. for a summer vacation in the United States. On June 16, 2013, E. left Kinsale, County Cork, Ireland with Respondent for a summer visit to the United States. On June 21, 2013, over the phone from the United States, Respondent revealed to Petitioner that he did not intend to return E. to Ireland. 

The district court observed that a court exercising jurisdiction under ICARA “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition.” 42 U.S.C. § 11604(a). That authority extends to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Under Rule 65(b), a party seeking a temporary restraining order 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 (2008). The court found that Petitioner satisfied each element. Petitioner  adequately established a likelihood of success on the merits by making a prima facie showing that E. is under sixteen years of age, that her habitual residence is in Ireland, that E. was removed from Ireland in breach of Petitioner's custodial rights, which rights Petitioner would have exercised but for the removal.

 

          The Court found that there was no reasonable likelihood of harm to Respondent from being wrongfully enjoined, and therefore ordered that Petitioner was not required to give security pursuant to Federal Rule of Civil Procedure 65(c). It directed Respondent to show cause why he should not be prohibited from removing the child from the Court's jurisdiction until the proceeding was concluded; to show cause why the relief requested in the Verified Complaint and Petition should not be granted and directed him to produce E.'s passports and any other identification and/or travel documents and to deposit them with the Court for safekeeping until the proceeding was concluded.

Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) [Luxembourg] [Younger and Colorado River Abstention]

In Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) Plaintiff Pierre Biel filed a petition under the Hague Convention seeking the return of his son to Luxembourg. Upon learning of an ongoing custody proceeding, the Court raised the issue of abstention sua sponte,



In October 2012, Plaintiff and Defendant Dinara Bekmukhamedova traveled with their son, VPZB, from Luxembourg to the United States. Defendant allegedly promised the family would return to Luxembourg after she obtained a Form I–551 Alien Registration Card (commonly known as a "Green Card"). Defendant subsequently informed Plaintiff that she intended to remain in the United States with VPZB indefinitely. On March 3, 2013, Plaintiff was allegedly awarded a preliminary Guardianship by a Luxembourg court. Plaintiff subsequently flew to New Orleans—where Defendant had recently moved—and filed a petition in New Orleans civil court on May 1, 2013, to obtain custody of VPZB. The state court held a preliminary hearing on May8, 2013, and set a trial date of June 14, 2013. The court further ordered that Plaintiff be allowed visitation, that VPZB not be removed from Orleans Parish, and that Defendant surrender VPZB's passport to the court. Upon motion of Plaintiff, the trial was continued until August 14, 2013. Plaintiff filed a second motion to continue on August 8, 2013. Neither the petition nor any of the state court filings mention the Hague Convention or ICARA.

Having reviewed the state court proceedings, the district court found abstention inappropriate in this case, under both Younger v. Harris,. 401 U.S. 37 (1971) and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)


　

Munoz v. Rivera, --- F.Supp.2d ----, 2013 WL 563419 (W.D.Tex.) [Mexico] [Grave Risk of Harm] [Petition Granted]

 In Munoz v. Rivera, --- F.Supp.2d ----, 2013 WL 563419 (W.D.Tex.) Petitioner Munoz was a citizen of the Republic of Mexico. Respondent Ramirez was a citizen of the United States. Petitioner and Respondent were the parents of A.R.R. The child was born in Chihuahua, Chihuahua, Mexico, in April, 2007. She was five years old.. Petitioner and Respondent were not married and had never been married to each

other, nor had they ever cohabited as spouses. On March 18, 2008, the parties officially added Respondent as the father of A.R.R. on the child's State of Chihuahua Civil Registry Birth Certificate. On March 19, 2008, the parties obtained a Consular Report of Birth Abroad of a Citizen of the United States from the U.S. Consulate in Ciudad Juarez, Mexico. A.R.R. was a dual citizen of the Republic of Mexico and the United States.

From birth until on or about a date between June 2011 and August 2, 2011, A.R.R. continuously lived with Petitioner in Chihuahua, Chihuahua, Mexico, with periodic trips to see her father and extended family in the United States. Before A.R.R.'s birth Petitioner moved to Chihuahua, Chihuahua, Mexico, from San Luis Potosi, Mexico, with her three children from a previous marriage: C.D.(age 15), L.G.(age 13), and M.J.(age 12). Petitioner continuously lived in Chihuahua, Chihuahua, Mexico, with all of her children since 2006. Petitioner and Respondent did not have a formal custody or visitation agreement. The parties had a verbal agreement as to visitation that Petitioner would always let Respondent take A.R.R. for visitation if Respondent promised to bring A.R.R. back. Petitioner freely allowed Respondent or Respondent's family members to take A.R.R. from Chihuahua, Chihuahua, Mexico, for visitation in the United States. Except for the last visit, at the conclusion of each visitation A.R.R. was returned to Petitioner's home in Chihuahua, Chihuahua, Mexico.

In early or mid-June of 2011, Respondent and Laura Ramirez (Respondent's sister) picked up A.R.R. from her home in Chihuahua, Chihuahua, Mexico, for a verbally-agreed period of visitation in the United States. The parties further agreed that A.R.R. would travel with Respondent or Respondent's family from Lenorah, Texas, to San Luis Potosi, Mexico, for Laura Ramirez' quinceanera scheduled on or about June 25, 2011. The parties also agreed that Petitioner and her children would travel from

Chihuahua, Chihuahua, Mexico, to San Luis Potosi, Mexico, to attend the quinceanera. On or about June 25, 2011, Petitioner, Respondent, A.R.R., and Petitioner's other children, all attended Laura Ramirez' quinceanera. Petitioner asserted that after the quinceanera, on or about July 1, 2011, she took all of her children, including A.R.R., from San Luis Potosi, Mexico, by bus back to her home in Chihuahua, Chihuahua, Mexico. Petitioner asserted that A.R.R. spent the entire month of July 2011 with her, and in her possession, in Chihuahua, Chihuahua, Mexico. , Respondent asserted that upon conclusion of the quinceanera A.R.R. went directly back to the United States from San Luis Potosi, Mexico, with Respondent's parents. Respondent asserted that A.R.R. had lived with Respondent in Lenorah, Texas, since his parents brought A.R.R. back to Lenorah, Texas, following the quinceanera. Respondent asserted that A.R.R. was with Respondent, and in Respondent's possession, for both July and August 2011. Respondent further asserted that the parties agreed that A.R.R. would be educated in the United States and begin school in September of 2011. Petitioner asserted that the parties agreed that A.R.R. would be educated in Chihuahua, Chihuahua, Mexico, and that she never gave permission for A.R.R. to begin school in the United States.

On or about August 21, 2011, Respondent spoke with Petitioner by telephone and informed Petitioner that he (Respondent) was not going to return A.R.R. to Mexico. Respondent told Petitioner he would bring A.R.R. back in December to visit. On or about August 24, 2011, Respondent enrolled A.R.R. in school in Texas. After Respondent communicated on or about August 21, 2011, that he was not returning A.R.R. to Mexico, Petitioner sought legal assistance from the Human Rights Center for Women, Inc., in Chihuahua, Chihuahua, Mexico. On August 31, 2011, Petitioner filed her Application for Return of Child with the Mexican Central Authorities. Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Child on July 19, 2012.

The Court found that the Petitioner established a prima facie case for return. The court found that the facts clearly indicated that both parents shared the intent that Chihuahua, Chihuahua, Mexico, was their child's residence prior to Respondent's taking of A.R.R. with Petitioner's consent, in early to mid-June 2011, to Lenorah, Texas, from Chihuahua, Chihuahua, Mexico. The Court determined that Petitioner never agreed to A.R.R. taking up habitual residence in the United States and never agreed to A.R.R. being enrolled in school in the United States, thus there was no shared parental intent to shift A.R.R.'s habitual residence from Mexico to the United States. See Mozes, 239 F.3d at 1076. The evidence pointed toward Respondent's retention and subsequent enrollment of A.R.R. in school in the United States as Respondent's unilateral action.

The Court determined that the State of Chihuahua, Mexico, in accordance with the Chihuahua Civil Code adheres to the legal doctrine of patria potestad. See Chih. Civ.Code, tit. 8, ch. 1, art. 388 et seq. "Pursuant to that doctrine both parents had joint custody rights. . Article 389 of the Chihuahua Civil Code details how an unemancipated minor child such as A.R.R. is under patria potestad ( parental authority) as long as a relative can exercise parental authority over the child in accordance with the law. Chih. Civ.Code, art. 389; Article 394 explains that even when a person who has patria potestad ( parental authority) over a child, but does not have possession of that child, that person still has the right to live with that child, unless the parent presents a danger to the child. Chih. Civ.Code, art. 394; Petitioner had been exercising patria potestad over A .R.R. since her birth in Chihuahua, Chihuahua, Mexico, in April 2007. See Chih. Civ.Code, art. 389. Although Petitioner had not been in physical possession of A.R.R. since on or about August 2, 2011, she still had patria potestad ( parental authority) under the Chihuahua Civil Code. See Chih. Civ.Code, art. 394. Based on the aforementioned, the Court found that Petitioner had rights of custody conveyed by patria poteststad under the laws of the State of Chihuahua, Petitioner proved by a preponderance of the evidence that Respondent retained A.R.R. in breach of Petitioner's rights of custody under the laws of the child's habitual residence-the Republic of Mexico. Petitioner's made out a a prima facie case for wrongful retention

of A.R.R. by showing that at the time of retention she was actually exercising her rights of custody or would have been exercising those rights but for the retention. Larbie v.. Larbie, 690 F.3d 295, 307 (5th Cir.2012); Convention art. 3(b). The Court pointed out that Courts apply a liberal approach when determining whether rights of custody were actually being exercised. Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 344-345 (5th Cir.2004) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1065-66 (6^th Cir.1996)). To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child." Sealed Appellant, 394 F.3d at 344-345. Respondent made no showing that Petitioner abandoned her child.

Respondent asserted that there was a grave risk of physical and psychological harm if A.R.R. was returned to Petitioner; specifically, asserting that return would be to an intolerable situation. Convention, art. 13(b). Respondent argued that the following provided evidence that return would expose the child to physical or psychological harm or place the child in an intolerable situation: (1) the living environment in Chihuahua, Chihuahua, Mexico; (2) Petitioner's fear of break-ins of her home evidenced by her testimony that she has bars on her doors and windows; (3) Petitioner's extreme economic hardship when compared to Respondent's relative economic affluence; (4) Petitioner's severe financial stress evidenced by her bank records suggesting that Petitioner could not provide basic needs for A.R.R. or Petitioner's three other children; (5) Petitioner's inability to attend a pretrial hearing because she could not afford the cost of a Visa to travel to the United States; (6) a request for financial assistance made on the day before trial by the caretaker watching over Petitioner's other three children in Chihuahua, Chihuahua, Mexico, while Petitioner was in the United States attending these legal proceedings, seeking funds from Carmen Ramirez to purchase food for Petitioner's children; (7) alleged sexual abuse of Petitioner's other child, M.J.(age 12), by Petitioner's boyfriend Maximino Munoz, who lived with Petitioner and her children in their home in Chihuahua, Chihuahua, Mexico.

The court found that poverty and economic hardship are not relevant factors to use when determining whether a court should use its discretionary power in not returning a child to his or her country of habitual residence. A review of deliberations on the Convention revealed that "intolerable situation" was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an "intolerable situation" and subjected to a grave risk of psychological harm. Friedrich v. Friedrich, 78 F.3d 1060, 1068-69 (6th Cir.1996).

Respondent argued that return of A.R.R. to the child's country of habitual residence, the Republic of Mexico, would pose a grave risk of harm to A.R.R. as return would place A.R.R. in an intolerable situation because of an allegation that sexual abuse was committed against Petitioner's child, M.J. (age 12), by Petitioner's boyfriend, Maximino Munoz, who lived with Petitioner and her children in their home in Chihuahua, Chihuahua, Mexico. The facts revealed that Petitioner's daughter, M.J.(age 12), spoke with Respondent and alleged that Petitioner's boyfriend, Maximino Munoz, touched her in an inappropriate sexual manner. Respondent brought this allegation to the attention of Petitioner and then M.J.(age 12) told Petitioner about the alleged inappropriate touching. Maximino Munoz lived with Petitioner and her four children for approximately two years. At trial, Petitioner testified that M.J. (age 12) had been previously molested and raped by Petitioner's brother. Petitioner pressed charges against her brother, took M.J. (age 12) to a psychologist, therapist, a caseworker at school, and attended group therapy. The brother fled Chihuahua, Chihuahua, Mexico, and had never been prosecuted. After hearing the allegations against Maximino Munoz and upon the urging of Respondent, Petitioner made Maximino Munoz move out in late August 2011. Additionally, Petitioner entered M.J.(age 12) and the entire family into group therapy for approximately three to four months. Petitioner testified that Maximino Munoz was cleared of the allegations during therapy and that she allowed Maximino Munoz to move back into her home in December 2011. Both parties agreed that there were no allegations that Maximino Munoz ever inappropriately touched A.R.R., the subject of the Petition for Return. Respondent, did not present any actual evidence that Maximino Munoz has a history of sexually molesting children or that he actually inappropriately touched M.J.(age 12). Respondent testified that he had knowledge that Maximino Munoz was convicted of criminal charges for sexual assault of a minor, but he produced no evidence of any such conviction that might corroborate his testimony. Petitioner testified that she knew Maximino Munoz served time in prison for a marijuana conviction and was released in 2002. Her testimony indicated that she had information that there were previous legal proceedings against him involving molestation, but she made clear that she had no knowledge of a conviction for any such crime. Based on the evidence presented, Respondent did not meet the burden of proof to prove that A.R.R. would face a "grave risk" of harm by being placed in an intolerable situation upon return to the Republic of Mexico.

The Court found that Respondent failed to establish by a preponderance of the evidence that Petitioner consented to removal or subsequently consented or later acquiesced to A.R.R.'s retention and failed to establish that the "well settled into new environment" affirmative defense was available to Respondent. Petitioner's suit for Return of Child was filed on July 19, 2012, within one-year of A .R.R.'s wrongful retention on or about August 21, 2011.

Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) [Dominican Republic] [Attorney Fees and Costs] [Pro Bono Counsel]

In Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) Petitioner Alberto Eugenio Font Paulus's Motion for an Award of Attorneys' Fees and Costs was before the court. Respondent, Ana Virginia Vittini Cordero, argued that an award of attorneys' fees for Mr. Font Paulus's counsel would be clearly inappropriate because he was represented on a pro bono basis and a fee award would prevent her from providing for herself or her two minor children. Because she had not shown that it would be clearly inappropriate for the Court to order her to pay the necessary expenses incurred by or on behalf of Mr. Font Paulus in this matter, his motion was granted.

Mr. Font Paulus sought reimbursement of $7,251.57 in costs, $1,704 .50 of which he incurred and $5,547.07 of which was incurred by his New York counsel, Vanessa Nadal, Esq. and Tracy Schaffer, Esq. of Jones Day. He stated that he spent $1,704.50 on travel and lodging costs, including: (1) round trip airfare for his flights to and from the United States for the June 2012 hearing; (2) airfare for P.F.V.'s return flight to the Dominican Republic; (3) round trip bus fare to and from Wilkes-Barre, Pennsylvania for himself, his sister, and her husband (who served as a guide and translator) for the hearing; (4) round trip bus fare to and from Pennsylvania for himself, his sister, and her husband to pick up P.F.V.; (4) return bus fare to New York for P.F.V.; and (5) his lodging in Wilkes-Barre for the hearing.

Attorneys Nadal and Schaffer sought reimbursement of $5,547.07 for various necessary expenses incurred on Mr. Font Paulus's behalf in this matter, including: (1) lodging in Wilkes-Barre for the hearing; (2) certified English translations of the Dominican court orders and laws appended to the Petition and Spanish translations of the Petition and Memorandum of Law for Mr. Font Paulus to verify; (3) court filing fees; (4) a translator at the hearing; and (5) the courier service that obtained P.F.V.'s passport from the United States Marshals on Mr.Font Paulus's behalf and verified that Ms. Vittini Cordero had not fled with P.F.V. following her failure to answer Mr. Font Paulus's phone calls for three days following the Court's June 29, 2012 Order.

Ms. Vittini Cordero argued that Mr. Font Paulus's round trip flight from the Dominican Republic to the United States was unnecessary because he could have testified at the June 2012 hearing by telephone or video conference. However, the court found that federal courts have awarded successful ICARA petitioners airfare incurred in traveling to and from the United States to appear in court. See, e.g., Freier v. Freier, 985 F.Supp. 710, 714 (E.D.Mich.1997) (awarding $2,422.00 for Petitioner's round trip and minor child's one-way airfare); Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at * 5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan.18, 2011). Therefore, as Ms. Vittini Cordero had not shown that it would be clearly inappropriate to require her to pay for Mr. Font Paulus's airfare to and from the United States for the hearing, she was be ordered to reimburse him $555.80 for his reasonable and necessary air travel costs. The Court found that the $290.00 in airfare for P.F.V.'s return flight to the Dominican Republic, which Ms. Vittini Cordero had not challenged, was a necessary expense under ICARA.

Ms. Vittini Cordero maintained that the $1,944.00 for interpreting services and $2,111.51 for translation services incurred by Attorneys Nadal and Schaffer were not recoverable because neither the translators nor the interpreter were court-appointed. The court found that she failed to establish that an order requiring her to pay for interpreting and translation services incurred on behalf of Mr. Font Paulus in this matter would be clearly inappropriate. Many federal courts have awarded translation and translator costs to successful ICARA petitioners. See, e.g., Guaragno v. Guaragano, No. 09-CV-187, 2011 WL 108946, at *4 (N.D.Tex. Jan. 18, 2011) (awarding "reasonably and necessarily incurred and adequately documented" translator trial fees and costs of $3,788.75 and foreign document translation fees of $8,702.47); Blanc v. Morgan, 721 F.Supp.2d 749, 768 (W.D.Tenn.2010) (awarding "translation services ... and other incidental expenses contemplated by § 11607(b)(3)"); Neves v. Neves, 637 F.Supp.2d 322, 343-44 (W.D.N.C.2009) (awarding translation costs of $191.25); Antunez Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 816-17 (N.D.Iowa 2003) (awarding translation costs of $717.75, including a translator for trial); Friedrich v. Thompson, No. 99-CV-772, 1999 WL 33954819, at *8 (M.D.N.C. Nov. 26, 1999) (awarding expenses for translation of documents from German to English). Ms. Vittini Cordero was ordered to pay for interpreting services and translation services.



Ms. Vittini Cordero contende that Mr. Font Paulus should not be awarded court costs on equitable grounds because he filed this action with unclean hands. The Court held that equitable defense unclean hands defense was inapplicable here. The United States Court of Appeals for the Third Circuit has held that applying "the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring that rights of custody... of one Contracting State are effectively respected in the other Contracting States." Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010). Furthermore, court costs are explicitly mentioned in §11607(b)(3) as "necessary expenses incurred by or on behalf of the petitioner."

Ms. Vittini Cordero challenged the $500.00 in post-hearing investigatory and courier costs incurred by Attorneys Nadal and Schaffer. The court found these services were reasonable and necessary expenses incurred on behalf of Mr. Font Paulus and related to the return of P.F.V.,

The court determined the issue of reasonable attorneys' fees by the lodestar calculation, which entails multiplying the number of hours reasonably expended by each attorney by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The party seeking fees has the initial burden of presenting evidence that the claimed rates and amounts of time are reasonable. See Pennslyvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Once the fee applicant has made this initial showing, "the resulting product is presumed to be the reasonable fee to which counsel is entitled." The opposing party then has the burden of making specific objections to the proposed fee by affidavit or brief. In considering the opposing party's objections, the district court has significant discretion to adjust the lodestar downwards. The Court concluded that Attorney Macdonald-Matthes's figure was $16,380.00 (54.6 hours x $300.00 per hour). Attorney Nadal's figure was $8,910.00 (54 hours x $165.00 per hour). Attorney Schaffer's figure was $11,700.00 (45 hours x $260.00 per hour). When added together, these attorneys' fees, which were "necessary expenses incurred ... on behalf of the petitioner," totaled $36,990.00.



Ms. Vittini Cordero contended that "the integrity of awarding ... fees to counsel who agree to take a case as a pro bono matter is questionable." However, she  failed to establish that ordering her to pay attorneys' fees would be clearly inappropriate, as many federal courts have found counsel representing a successful ICARA petitioner on a pro bono basis are entitled to recover attorneys' fees. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) ("The fact that [successful ICARA petitioner's] lawyers provided their services pro bono does not make a fee award inappropriate."); see also Hamidas v. Hamidas, 720 F.Supp.2d 183, 209 (E.D.N.Y.2010) ("[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Convention's fee provision."); Sullivan v. Sullivan, No. 09-545, 2010 WL 1651994, at *1 (D.Idaho Apr.20, 2010) ("[E]ven where a [successful ICARA] case is taken on a pro bono basis, the Petitioner is still entitled to recovery of reasonable attorney fees.") Accordingly, the Court rejected Ms. Vittini Cordero's argument..

Ms. Vittini Cordero also claimed that an award of $36,900.00 in attorneys' fees was clearly inappropriate because it would render her, a minimum wage earner and single mother of two children, unable to provide for herself or her children. The court held that while it may reduce a fee award in a Hague Convention case if it prevents the respondent-parent with straitened financial condition from caring for his child, a reduction on the account of straitened financial condition, will not be applied to litigation costs and out-of-pocket expenses...." Saldivar, 2012 WL 4497507, at *16 (citing Rydder, 49 F.3d at 374; Whallon, 356 F.3d at 139). Although Ms. Vittini Cordero claimed that an order requiring her to pay $36,990.00 in attorneys' fees would be "clearly inappropriate" due the financial strain it would place her and her minor children under, she failed to provide any evidentiary support for this position. The record was devoid of any evidence or documentation showing Ms. Vittini Cordero's employment status, income, or assets. Nor did it contain any evidence that she had two minor children and was their sole provider. Ms. Cordero was be ordered to pay $16,380.00 in fees to Attorney Macdonald-Matthes, $8,910.00 in fees to Attorney Nadal, and $11,700.00 in fees to Attorney Schaffer.

Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) {Mexico] [Habitual Residence] [Patria Potestad] [Petition Granted]

In Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) Petitioner Gallardo was a citizen of the Republic of Mexico and Respondent Orozco was a citizen of the United States. Petitioner and Respondent were the parents of G.G. who was born in Denton, Texas, in May of 2005. G.G. was currently 8 years old. Petitioner and Respondent were married in Las Vegas, New Mexico, on December 18, 2006.

 In 2007, Petitioner and Respondent relocated with G.G. from Los Alamos, New Mexico, to Puerto Penasco, Sonora, Mexico. Petitioner and Respondent had a shared intent to move G.G. from the United States to Puerto Penasco, Sonora, Mexico. Since 2007 when the entire family relocated to Puerto Penasco, Sonora, Mexico, from Los Alamos, New Mexico, until on or about July 26, 2012, G.G. continuously lived with Petitioner in Puerto Penasco, Sonora, Mexico.. Respondent lived with Petitioner and G.G. in Puerto Penasco, Sonora, Mexico, for approximately two years, until he moved to Midland, Texas. In 2008 Petitioner and Respondent attempted to reunite and relocate to the United States. Petitioner tried to return to the United States illegally and was arrested on December 29, 2008, while attempting to cross the Rio Grande near the port of entry at El Paso, Texas. Respondent was in the United States awaiting Petitioner's crossing. Petitioner served approximately twenty-one (21) days for her illegal re-entry after prior removal stemming from this arrest. Upon release from custody in January 2009, Petitioner was deported to Ciudad Juarez, Chihuahua, Mexico, where Respondent picked her up and returned her to Puerto Penasco, Sonora, Mexico. After Respondent drove Petitioner to Puerto Penasco, Sonora, Mexico, Respondent lived with Petitioner and G.G. for approximately seven months before
 moving permanently to Midland, Texas. G.G. remained in Puerto Penasco, Sonora, Mexico, with Petitioner. Petitioner and Respondent had a shared intent that G.G. remain with Petitioner in Puerto Penasco, Sonora, Mexico. Thereafter, Respondent's mother, who resided in Puerto Penasco, Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on vacation from school. Petitioner consented to these trips. Each visit would last approximately one-to-two months. At the end of each scheduled visit G.G. would be returned to Puerto Penasco, Sonora, Mexico.. G.G. has attended school in Puerto Penasco, Sonora, Mexico, since the 2009-2010 school year. G.G. was enrolled in school in Puerto Penasco, Sonora, Mexico, for the 2012-2013 school year.

 Petitioner asserted that on or about July 25, 2012, Respondent came to Puerto Penasco, Sonora, Mexico, to have a few days of visitation with G.G. at his parents' home in Puerto Penasco. Petitioner asserted that she agreed to allow Respondent to have overnight visitation with G.G. at his parents' home and that Respondent was scheduled to return G.G. after a few days. Petitioner further asserted that instead of returning G.G. to Petitioner as scheduled, Respondent removed G.G. to the United States without her permission. In contrast, Respondent asserted that prior to arriving at Puerto Penasco, Sonora, Mexico, in late July 2012, Respondent arranged with Petitioner to take G.G. to Midland, Texas, for approximately a month to 45 days. It was Respondent's position that Petitioner agreed and consented to the visitation. Respondent asserts that before he took G.G. to Midland, Texas, the parties discussed the possibility of G.G. staying in the United States to attend school. Respondent asserts that Petitioner agreed to think about it, but did not agree at that time to allow G.G. to stay and attend school in Midland, Texas. Respondent asserted that Petitioner gave Respondent G.G.'s birth certificate. Respondent asserted that he agreed to return G.G. if Petitioner wanted G.G. returned and not enrolled in school in Midland, Texas. Respondent further asserted that after G.G. was in Midland, Texas, the parties continued to have discussions about enrolling G.G. in school. On July 31, 2012, Petitioner sent and Respondent received a text message informing Respondent that G.G.'s school in Puerto Penasco, Sonora, Mexico, started on August 20, 2012, and that G.G. needed to be back by that day. On August 22, 2012, Petitioner sent and Respondent received a text message demanding that Respondent return G.G. to her in Puerto Penasco, Sonora, Mexico. After Respondent received the text message from Petitioner demanding G.G.'s return, Respondent told Petitioner that he was going to enroll G.G. in school in Midland, Texas. Petitioner objected to Respondent enrolling G.G. in school in Midland, Texas. G.G. started school in Midland, Texas, on August 27, 2012.

 The court observed 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." The inquiry balances the interest of the child with the parents intentions, but gives greater weight to the parents' subjective intentions when the child is relatively young and incapable of deciding residency.

 The court found that the facts indicated that both parents shared the intent that Puerto Penasco, Sonora, Mexico, was their child's residence prior to Respondent's taking of G.G. to Midland, Texas, with or without Petitioner's consent, in late July of 2012. Petitioner established that in 2007, Respondent and Petitioner, together, moved their child G.G. to Puerto Penasco, Sonora, Mexico, from Los Alamos, New Mexico. After relocating to Puerto Penasco, Sonora, Mexico, Respondent lived in Mexico with Petitioner and G.G. for approximately two years. The parents' mutual decision to move their child to Mexico from the United States and relocate to Puerto Penasco, Sonora, Mexico, provided strong evidence of shared parental intent in 2007 to make the Republic of Mexico their child's country of habitual residence. Additionally, Respondent moved permanently to Midland, Texas, in 2009, leaving G.G. with Petitioner in Puerto Penasco, Sonora, Mexico. Even though no formal custody agreements existed, the parties arranged visitation. Respondent's mother who resided in Puerto Penasco, Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on vacation from school. Petitioner allowed G.G. to go on these trips to visit Respondent and each visit would last approximately one to two months. At the end of each scheduled visit G.G. would be returned to Puerto Penasco, Sonora, Mexico. The parents' decision for G.G. to remain in Puerto Penasco, Sonora, Mexico, with summer visitation in the United States, also provided strong evidence of shared parental intent that the Republic Mexico was G.G.'s country of habitual residence.

 The question remained whether G.G.'s habitual residence was abandoned, thus changing from Puerto Penasco, Sonora, Mexico, to the United States. The threshold test for determining whether the parties intended for G.G. to " 'abandon the [habitual residence] left behind' " was whether both parties shared that intention. Larbie, 690 F.3d at 310-11. "[I]n the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. Without shared parental intent the " 'prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion.' " Larbie, 690 F.3d at 311. In cases such as this in which the parties no longer agree where the child's habitual residence is fixed and "the representations of the parties cannot be accepted at face value ... courts must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is." Mozes, 239 F.3d at 1076.

 After an exhaustive review of all available evidence the Court determined that Petitioner never agreed to G.G. taking up habitual residence in the United States and never consented to G.G. being enrolled in school in the United States. There was, therefore, no shared parental intent to shift G.G.'s habitual residence from Mexico to the United States. The evidence pointed toward Respondent's retention and subsequent enrollment of G.G. in school in the United States as Respondent's unilateral action.

 Petitioner satisfied the threshold requirement for cases arising under the Convention by establishing that the child's country of habitual residence prior to removal or retention was the Republic of Mexico. Petitioner proved by a preponderance of the evidence that Respondent removed or retained G.G. in the United States, "somewhere other than the child's habitual residence." The State of Sonora, Mexico, in accordance with the Sonora Civil Code adheres to the legal doctrine of patria potestad. See Son. Civ.Code, tit. 8, ch. 1, art. 578 et seq.; "Pursuant to that doctrine both parents have joint custody rights." The Court found that Petitioner had rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico. Petitioner proven by a preponderance of the evidence that Respondent removed or retained G.G. in breach of Petitioner's rights of
 custody under the laws of the child's habitual residence-the Republic of Mexico and that such at the time of removal or retention she was actually exercising her rights of custody or would have been exercising those rights but for the removal or retention. Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir.2012); Convention art. 3(b).).

 Respondent Orozco pleaded the grave risk affirmative defense. Respondent elicited testimony from Petitioner admitting that she worked late hours at a casino. In addition, Respondent questioned whether Petitioner works, or had worked in the past, as a prostitute. Petitioner denied the allegations of prostitution and no other evidence of such activities was placed before the Court. Respondent's argument that return of G.G. to the child's country of habitual residence, the Republic of Mexico, would pose a grave risk of harm to G.G. because of Petitioner's work at a casino and unsupported allegations of prostitution fell extremely short of reaching the high threshold necessary to establish the grave risk of harm affirmative defense.

 Respondent pleaded, and argued at trial, that Petitioner consented or subsequently acquiesced to Respondent removing G.G. from Puerto Penasco, Sonora, Mexico, to Midland, Texas. When examining a consent defense, a court considers what the petitioner actually agreed to when allowing the child to travel outside of its country of residence and the scope of the petitioner's consent. Larbie, 690 F.3d at 309. In contrast, the "acquiescence [defense] addresses whether the petitioner subsequently agreed to or accepted the removal or retention." When examining an acquiescence defense, "'each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.' " Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007). The defense of acquiescence 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, 78 F.3d at 1070. Respondent's affirmative defense of consent failed on his own testimony. Respondent's argument that Petitioner acquiesced to the removal or retention of G.G. in the United States also fell short. There was no evidence before the Court that Petitioner subsequently acquiesced to G.G.'s removal or retention in the United States.

 Respondent asserted that G.G. objected to being returned, and should not be returned to Petitioner in Puerto Penasco, Sonora, Mexico. The court undersigned met in camera with G.G., who had recently turned 8 years old. The Fifth Circuit has previously held that a 13 year-old child did not meet the degree of maturity required to object and determine where he/she wanted to live. In the Courts opinion GG was not of sufficient age and maturity for the Court to take into account her objection to being returned to Mexico.

 The Court granted the petition. 

Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) [Poland] [Grave Risk of Harm] [Petition Granted]

 In Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) Petitioner filed a motion for an order to return his minor son to Poland after Respondent removed him and brought him to Massachusetts. Petitioner and Respondent were the biological parents of A.M., who was born on April 2, 2007. Although Petitioner and Respondent were never married, they resided in the same home in Poland, in the later stages of Respondent's pregnancy and until August 2, 2007, when Respondent left with A.M. and moved in with her aunt in the same town. Respondent testified that before she "escaped" from the residence (Petitioner's parents' house), Petitioner held her captive in the basement where she was only able to eat the eggs and jam stored there. She also testified that during these several months Petitioner verbally and physically abused her and sexually abused the infant A.M.


Within months of leaving the residence, Respondent sought child support through the Polish court and began receiving approximately $100 per month. In or around February of 2008, however, a custody dispute arose. Petitioner filed an action to regulate his contact with A.M., while Respondent, represented by counsel, countersued to terminate Petitioners parental rights. In August of 2008, the Polish court received a psychological report from the Diagnostic and Consultation Family Center, which had conducted evaluations of Petitioner and Respondent at the court's request. he report indicated that, while Respondent was socially and emotionally immature, suffered from extreme helplessness, and made decisions regarding A.M. based on her emotions rather than his developmental needs, she fulfilled her duties as a mother and had a great bond with As to Petitioner, the report stated that he could control his behavior but that he did not perceive, understand, or take responsibility for his own mistakes; the report also indicated that Petitioner had a high self-evaluation. The report concluded that, because of Respondents "low level of social and emotional maturity" and her resulting inability to "fully understand the minors needs," Petitioners contact with A.M. was "indispensable." However, considering Petitioners own "low level of social maturity" and "susceptibility to taking psychoactive substances," the report recommended that Petitioners visits with A.M. be facilitated in a controlled environment accompanied by the presence of a supervising court monitor. On February 19, 2009, after Respondent withdrew her request to terminate Petitioner's parental rights, the Polish court granted Petitioner supervised visitation with A.M. at specified dates and times. Following that order, the parties continued their ongoing legal battle over their respective rights. Petitioner continued to seek the enforcement of the order regulating his contact with A.M., while Respondent continued her efforts to limit Petitioner's parental authority.

In July of 2009, Respondent, after claiming that her intention was to bring A.M. to the United States for a short holiday visit, received permission from the Polish court to obtain a passport for him. In March of 2010, after learning that Respondent applied for a permanent immigrant visa for A.M. as a child of a United States citizen—Respondent had become a United States citizen when, as a thirteen-year-old and living here, her father became a citizen—Petitioner sought to reverse the court's decision. On March 15, 2010, the Polish court—concerned that there was a "high probability" that A.M. would stay in the United States permanently without Petitioner's consent—issued an order prohibiting Respondent from taking A.M. outside Poland until at least the completion of the court proceedings. Despite that order, Respondent left with A.M. and brought him to the United States on April 4, 2010. On March 23, 2011, Petitioner initiated the present action seeking A.M.'s return to Poland.

Respondent, appealed the Polish court order prohibiting her from leaving Poland and traveling with A.M. to the United States. On June 16, 2011, the Court of Appeals in Poland denied Respondents appeal, citing Petitioners interest in maintaining ties with his son; the court found that both parents "are entitled to parental authority over [A.M.] and each of them is obliged and also entitled to exercising the same."

There was no question but that (1) A.M. was a habitual resident of Poland at the time of his removal, (2) Petitioner had "rights of custody" at the time, and (3) was actually exercising those rights.
Respondent claimed that there would be a grave risk of physical and psychological harm to A.M. were he to be returned to Poland. The court observed that a "grave risk" means a "more than serious" risk; Respondent claimed that Petitioner "sexualized" A.M. from the time of his birth in April of 2007 until she moved out of Petitioners home in August of that year. Respondent submitted photographs Petitioner allegedly took of A.M.'s genitals when he was only several months old as well as a brief video (taken by Respondent) showing Petitioner, wearing one of Respondents dresses, gently swinging A.M. in his arms. Respondent also testified that Petitioner would suck on A.M.'s penis when he cried in order to calm him, claiming this to be a Native American practice. She testified as well that Petitioner, when they resided together, often was under the influence of drugs when he cared for A.M. and, as a result, posed a risk to his safety. The court pointed out that the First Circuit has held that sexual abuse by a parent is an example of an Article 13(b) defense justifying non-return. Danaipour, 286 F.3d at 16. Drug use, under certain circumstances, also may qualify as grave-risk conduct. The evidence proffered by Respondent with regard to Petitioner's drug use includes her own testimony and the psychological report provided to the Polish court. The report indicated that Petitioner had a "susceptibility to taking psychoactive substances," smoked marijuana occasionally, but had ceased doing so in August of 2007 when asked by Respondent. The court credited that evidence accordingly. Respondent's allegations of sexual abuse, on the other hand, were far less persuasive. There was no mention of such abuse in the psychological report issued to the Polish court. Granted, Respondent testified that she was reluctant to bring this to the attention of the psychologist, but nonetheless the fact remains that no such information is contained in the report. Second, certain of Petitioner's photographs of A.M. while an infant, although questionable, do not amount, in the court's opinion, to sexual "abuse." Third, the allegations of Petitioner's engaging in what he described as a "Native American" practice, if practice it be, are disturbing but nonetheless vague and uncorroborated; had Respondent been as concerned about this at the time as she is presently, it was curious that she did not insist on sharing that information with the investigating psychologist. Most importantly, Respondent did not testify to or set forth any probative evidence to support her contention that, were A.M. to return to Poland, he would "certainly be at risk for more of the same type of abuse."

Respondent argued the court should consider the "well-settled" doctrine in the context of her grave risk argument. In support, Respondent cited Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001), which held that a court may consider evidence that the child is "so deeply rooted in the United States" that there would be a grave risk of psychological harm if the child were to be returned to the home country. The First Circuit, however, in a ruling which is binding on the court, had chosen to "disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States." Walsh, 221 F.3d at 222 n. 14. "That," the First Circuit stated, "is an inevitable consequence of removal."


Respondent's one remaining justification to remain in the United States was her concern that the Polish court system is ill-prepared to protect A.M. In support, Respondent cited a report prepared by the United States Department of State that discusses Poland's problems with domestic violence against women and low conviction rates in cases involving incidents of child abuse. This was evidence of the weakest sort. The court was not convinced that the report sufficiently demonstrated that the Polish court system was incapable of enforcing its visitation orders or of protecting A.M. from abuse during the pendency of the parties' dispute.

Respondent asserted that Petitioner "acquiesced" to A.M.'s living in the United States by his complete lack of communication or even an attempt to communicate with [Respondent], the child, or any member of [Respondents] extended family here in the United States. Respondent claimed that even though Petitioner had her relatives contact information in the United States and her own email addresses, he made no effort to contact them. Respondent's argument was not persuasive. Even if her assertions were true, a lack of communication, by itself, is not sufficient to establish that it was Petitioners subjective intent to acquiesce to A.M.'s living in the United States. Even if credited, Petitioners lack of communication was at best an ambiguous indication of his intention to allow A.M. to permanently reside in the United States.

Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) United Kingdom] [Age & Maturity] [Guardian] [Visitation] [Petition Granted]

 In Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) Petitioner Amor Paulina Hirst filed a Petition for Return the parties' two minor children to the United Kingdom. The court sua sponte issued an Order Appointing a Guardian Ad Litem to conduct an independent, balanced and impartial investigation for the court into the facts relevant to the Return petition and the defenses raised by Respondent. The lay Guardian Ad Litem conducted in-person interviews with the children individually, Respondent and his wife, as well as Skype interviews with Petitioner and her husband. The GAL also contacted friends of the parties and several of the children's teachers in Manchester, England. Upon the completion of her investigation, the GAL issued a report containing a summary of her investigation, which essentially provided the court with a timeline of the relevant events and previewed the arguments that the parties eventually made at trial. The GAL acknowledged that she could provide no expert opinion as to the maturity of the children, but asserted that the children's desire to remain with their father was strong. The GAL provided a copy of the report to the court and the parties on April 22, 2013. The court entered the report into evidence at trial as its own exhibit. The court also interviewed the children on the record in camera outside the presence of the parties and their counsel.


Petitioner and Respondent were married on May 17, 1996, in South Africa. They had two male children-M.S.T., born in 2002, and A.D.T., born in 2003-both born in Johannesburg, South Africa. At the time of the trial, M.S.T. was ten (10) years old and A.D.T. was nine (9) years old. The children were citizens of South Africa by virtue of their birth in South Africa and held South African passports. The children also held Belgian passports by virtue of their father's Belgian citizenship. Their Belgian passports afforded the children European Union citizenship, which thereby allowed them to live in the United Kingdom with no additional visa or immigration requirements.

The parties and the children lived together as a family in South Africa until the parties separated in May 2007. The parties were divorced on July 25, 2008. At the time of the divorce, the parties entered into a Parenting Plan and Settlement Agreement which was adopted by a South African High Court. The South African Order resolved all issues of custody of M.S.T. and A.D.T., giving the parties joint parental responsibility for the children. It further provided that the children should reside with their mother and should have extensive contact with their father. Following the separation, Respondent left Johannesburg and took a job in Ballito, South Africa, roughly 380 miles from Johannesburg. Several months following the divorce, the parties mutually agreed that the children would live with their father in Ballito. The children lived with their father from on or around September 2008 to on or around February 2011. When Respondent decided to relocate to Greer, South Carolina, in or around February of 2011, he and Petitioner agreed that she would resume custody of the children until Respondent was established and could arrange for the children to join him in the United States. These plans changed on or around June 2011 due to Respondent's inability to raise the funds necessary to arrange for the children's visas and their travel to the United States. Petitioner retained physical custody of the children since March 2011.

On or around October 15, 2011, Petitioner married Jamie Hirst , a citizen of the United Kingdom. On November 5, 2011, the children relocated from South Africa to Manchester, England in the United Kingdom and moved into Jamie's two-bedroom flat. Respondent arranged for the children to receive their Belgian passports, which enabled the children to enter and live in the United Kingdom. Respondent also provided Petitioner with his written consent for the children to travel from South Africa to the United Kingdom. Upon arrival, Petitioner enrolled the children in Norden Community Primary School. The children attended the Norden School since their arrival in November 2011 and up until December 2012 when they left for their Christmas vacation with Respondent in the United States. Both Petitioner and the children registered for medical care through the United Kingdom's National Health Service. On December 23, 2012, the children travelled from the United Kingdom to the United States to visit Respondent at his new home in Greer, South Carolina. This was the children's first visit to the United States. The parties and the children all agreed that the trip was intended to be a three-week visit, not a permanent relocation. The parties agreed that the children would return on January 7, 2013, which was the first day school resumed after the Christmas holiday. On January 2, 2013, Respondent informed Petitioner by Skype that he would not be returning the children to the United Kingdom as previously agreed and would instead have the children live permanently with him in Greer, South Carolina.



In or around March 2013, Petitioner filed a Verified Petition for Return with the court. Petitioner and Jamie came to the United States for the Show Cause hearing on March 29, 2013. At the end of the hearing, Petitioner requested visitation with the children while in the United States which the court granted. The children initially refused to leave the courthouse with Petitioner and Jamie. The Court interviewed A.D.T. and M.S.T. separately in camera in the presence of the court reporter, a law clerk, and a courtroom deputy.

Respondent conceded that Plaintiff met her prima facie case for a wrongful return. As to habitual residence, Respondent did not establish that there was a shared intent by both parents for the children to abandon the United Kingdom and move to the United States in December 2012. Notwithstanding evidence of a prior shared intent in 2011 for the children to come live with Respondent in the United States, all of the parties understood the December 2012 trip to be a temporary visit with a definitive return date. Additionally, the court found that the children's fourmonth stay in the United States was not sufficient to establish that they were acclimatized to their new environment such that returning them at this point "would now be tantamount to taking the child out of the family and social environment in which its life has developed. Therefore, the court found that the children were habitually resident in the United Kingdom. Respondent further stipulated at trial that Petitioner had rights of custody of the children under the Hague Convention and under the relevant law of the United Kingdom, and that Petitioner was exercising that custody at the time of the children's wrongful retention. Petitioner was also exercising her custody rights at the time Respondent retained the children in the United States. Petitioner met her burden of proving by a preponderance of evidence that Respondent's retention of the children in the United States was wrongful within the meaning of the Hague Convention.

The district court found no proof that the children had been exposed to any sexual abuse. Respondent's claim that Petitioner repeatedly forced the children to watch video footage in an effort to frighten them or psychologically torture them was not credible. Respondent's allegations that Petitioner regularly told lies about the father clearly would not rise to the level of psychological torture such that the grave risk exception would be applicable. Many of the Respondent and the children's claims were, at most, allegations of poor parenting, including Petitioner's alleged drinking and smoking, her alleged use of foul language toward the children, and her alleged tendency to sleep late, which left the children to prepare their breakfast and ready themselves for school on their own. Other allegations were those that could be made by many ten and eleven year old boys in similar situations, such as the allegations that Petitioner's imposed punishment for small offenses was excessive, that they had no privacy, that their parents fight too much, and that one parent speaks ill of an ex-spouse. Respondent's complaints that Petitioner lets the children walk to school on a busy road and let them go out at night by themselves did not establish that the children were or will be in actual danger in Manchester. Finally, even if these allegations of mistreatment, either individually or collectively, caused the court to be as concerned as Respondent apparently was, the alleged mistreatment would still not meet the standard as outlined in the Fourth's Circuit decision in Miller, since a court in the United Kingdom can be trusted to adequately respond to these issues and provide protection for the children. See Miller, 240 F.3d at 402.

Respondent did not prove by a preponderance of the evidence that the children were of an age and maturity such that their wishes should be taken into account in determining the issue of return. Both M.S.T. and A.D.T. were polite, smart boys. Notwithstanding the impact on the children of the instant custody matter, neither boy seemed to be especially sophisticated or to have reached a maturity beyond their years. The burden of demonstrating maturity lies with the party asserting the defense. Respondent provided no expert evidence or expert testimony regarding the children's maturity level. Even if the court were to find the children sufficiently mature, other factors would weigh against declining to issue a return. First, the children expressed a preference to remain in Greenville rather than a strong objection to returning to Manchester. The children's objections to Manchester mostly involved an aversion

to the rainy climate and a lack of places to play. However, both children mentioned that they enjoyed playing sports at their school and the overwhelming evidence suggested that the children were involved in at least three sports teams or clubs. Surely, then, the children had adequate places to play and were not completely deterred from doing so by the climate in Manchester. Additionally, both children stated that they had friends in Manchester and both stated that they liked their teachers at school. Both children also commented on the fact that the people of Greenville were on the whole very friendly as compared to the people of Manchester. The children's preference for the temperate climate and southern hospitality of Greenville, as well as their affinity for their father's yard, was not sufficient to invoke Article 13's narrow exception. Furthermore, the children's preference for Greenville over Manchester could not be "born of rational comparison" between life in the United States and life in the United Kingdom. See Castillo, 597 F.Supp.2d at 441. While the children had been in the United States, the children had not been in school and from their in camera testimony, they had clearly been having fun playing with their father, watching crime dramas on television, and exploring the city's attractions and restaurants. Even if the children were mature enough to make a decision about where they wished to grow up, neither child offered well-considered reasons why staying in Greenville would be preferable or beneficial that were not related to their leisure and pleasure. In addition to their stated desire to remain in Greenville, the children also expressed a desire to stay with their father. It was clear to thecourt that the children had been influenced by their parents' bitter and contentious relationship. At present, the children sided with their father and believed that their mother lied when she told them that Respondent left the family and South Africa for another woman. Both children mentioned this alleged lie during their in camera testimony, leaving little doubt that this perceived breach of trust was at the heart of the children's animosity toward their mother. The fact that they had been physically separated from their mother for the last four months while the instant custody battle ensued, during which time Petitioner sought to insulate the children from the stress of the proceedings by not discussing the issue with them, surely exacerbated the children's confusion about the situation and negative feelings toward their mother. Statements from those involved with the children's life in Manchester stood in stark contrast to the picture painted by Respondent and reported by the children about the children's home life in the United Kingdom. Such contradictions provided further circumstantial evidence that the children's objections to the return had been influenced by either their parents or the events surrounding the instant custody dispute, which therefore counseled against giving the children's objections determinative weight.

The court found that the instant dispute was a custody matter involving the children's preferences with regard to which parent they wanted to live with, not well reasoned particularized objections to their return to their place of habitual residence.