Haruno v Haruno, 2013 WL 5663070 (D.Nev.) [New Zealand] [Habitual Residence] [Consent]

In Haruno v Haruno, 2013 WL 5663070 (D.Nev.) Petitioner Toby Makoto Haruno ("Toby") sought to have his minor child, Jordan Haruno, returned to New Zealand from Las Vegas, Nevada. Toby and Jennifer were United States citizens and were married in the United States. They moved from Los Angeles, California to Wellington, New Zealand on approximately June 30, 2008. Although they had one-year visas, they renewed those visas each successive year. Toby was employed in New Zealand in the animation industry. Although over the years they discussed ultimately returning to the United States, they never took concrete steps to leave New Zealand. Jordan was born in Wellington, New Zealand on January 11, 2011. He was a United States citizen. Jordan lived his entire life in New Zealand, until December 8, 2012. On that date, Toby, Jennifer and Jordan took a long vacation trip to North America, having purchased round-trip tickets with a return flight to New Zealand from Vancouver on February 2, 2013. On February 1, 2013, Jennifer changed her flight arrangements so that, instead of returning to New Zealand, she and Jordan flew from Vancouver to Las Vegas, Nevada, where her parents lived. There was conflicting testimony about whether and to what extent Toby protested this change, but he did not prevent them from going to Las Vegas, and he helped them check in their luggage for the flight. Toby returned to New Zealand alone. After returning to New Zealand, Toby made repeated efforts to convince Jennifer to return to New Zealand. He continued to financially support Jennifer and Jordan in Las Vegas, and kept in regular contact with them via video and telephone connections. A few months later, Toby visited them in Las Vegas and discovered that Jennifer had contacted a lawyer in Las Vegas to obtain a divorce. Toby returned to New Zealand, contacted legal counsel, and initiated this proceeding. In the meantime, Jennifer filed a divorce proceeding in Las Vegas.

The district court granted the petition. It observed that a court determining whether a child was wrongfully removed must] answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the
petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mazes, 239 F.3d 1067, 1070 (9th Cir.2001). It appeared that the removal evolved over the period February through June of 2013. The parties left New Zealand on December 8, 2012, with return tickets for February 2, 2013. On February 1, 2013, Jennifer changed her and Jordan's tickets and instead flew to Las Vegas, where they have remained. The evidence was overwhelming that New Zealand was the child's habitual residence before he was retained in the United States. Under New Zealand law, as a married father living with the child's mother, Toby had joint guardianship and custody of the child prior to Jennifer's retaining him in the United States. Jennifer's retention of the child in the United States interfered with Toby's custodial rights. Jennifer claimed that Toby worked excessive hours at his job, did not regularly participate in activities with the child, and thus was not exercising his rights. The evidence presented at the hearing proved that Toby was exercising his parental rights. Even though Toby may have worked long hours, he still interacted with the child, went to play groups with him, was involved in his life, and contributed to his care and upbringing until Jennifer retained him in the United States. Based on the foregoing, Toby had proven a cause of action for the return of the child to New Zealand.

Jennifer attempted to defend against the child's return to New Zealand by alleging that (a) Toby consented to or acquiesced in the child's remaining in the United States, and (b) returning the child presents a grave risk to his physical and emotional health.

Jennifer contended that Toby consented to allowing her to take the child to the United States. She claimed he did not protest when she changed their flight from Vancouver to Las Vegas, and that he helped them check in their bags at the airport. Even if true, such actions did not constitute consent to allow the child to permanently remain in the United States. Toby's actions thereafter proved that he did not consent to the permanent relocation of the child. Toby remained in regular contact with Jennifer and the child (through both video and telephone), and continually tried to convince them to return to New Zealand. He purchased return flight tickets for them (which Jennifer  ultimately canceled after coincidentally becoming injured the day before the flight). He traveled to Las Vegas to convince them to return.

Jennifer contended that the child would face grave risk of physical and emotional injury if he is returned to New Zealand. In support of that allegation, she pointed out that Toby was arrested and charged with domestic violence against Jennifer over two years before the child was born. Those charges were later dropped after Jennifer hired a lawyer to help her recant her allegations. Even if the allegations were true, they did not constitute a grave threat to the child. The injury occurred to Jennifer, and there were no reports of violence in the years thereafter. While Jennifer accused Toby of having a bad temper and being prone to angry outbursts, the evidence indicated that at most only once was it directed towards the child. The only episode involving the child occurred when Toby allegedly shook him once after becoming frustrated at having difficulty putting on his diaper. While this is not to be condoned, it apparently was not a "grave" event, as a few hours later Jennifer left the child in Toby's care so she could go out and party with her friends. Moreover, a single episode such as this does not constitute a grave threat of future violence to the child.

Avila v. Morales, 2013 WL 5499806 (D.Colo.) [Mexico] [Habitual Residence] [Telephone appearance]

In Avila v. Morales, 2013 WL 5499806 (D.Colo.) the district court adopted the recommendation of the Magistrate Judge and granted the petition for return. Petitioner sought an order returning her children to their place of habitual residence in Mexico. The Court held a hearing on June 19, 2013, at which the Petitioner appeared telephonically. Her attorney appeared in person. Respondent appeared in person and was also represented by counsel. Petitioner was a Mexican citizen residing in Durango, Mexico. Respondent was a Mexican citizen residing in Aurora, Colorado. The parties never married but had two children subject to this petition: A.G.E.M, an 11-year-old boy, and A.E.M., a 9-year-old boy. Both boys were born in Colorado and had Colorado birth certificates. Petitioner, Respondent and their two sons resided together from August 2000 until December 2004, when Petitioner and the boys moved out and lived with other family members from that point until April 2010. From December 2004 to April 2010, the children resided with Petitioner, and she parented them nearly exclusively.

In April 2010 Petitioner decided, upon the sudden death of her father in Durango, Mexico, to move to Mexico with the boys to take care of her mother. She called Respondent the night before she left to tell him she was leaving with the children the next day, on April 27, 2010. Respondent did not think this was a permanent move because on two prior occasions Petitioner had traveled to Mexico with their sons, returning both times. Respondent asked Petitioner not to take the children with her in 2010. Petitioner took them anyway, packing their belongings and moving to El Pueblito, Durango, Mexico, to live with Petitioner's mother. The children went to school in El Pueblito for two years. They were enrolled to start a third year there in the fall of 2012. They had integrated into the family, community, and church in Durango. The children had been baptized in Colorado but completed their communions and confirmations in Mexico. While the boys lived in Mexico during a period of two years and four months, Respondent communicated by phone with the children periodically and his family visited the children in Mexico six (6) times. Respondent also sent at least some money to Mexico to support the children. Respondent did not take any action through the courts to seek return of his children, nor did he seek their return in any manner in the two years and four months they were living in Mexico.

  Petitioner made plans for the children to visit Colorado for two weeks in the summer of 2012 before they were to return to Mexico for the school year. Before the boys traveled to the United States, Petitioner procured Mexican birth certificates from the Mexican government. Petitioner was able to do so because both of the children's parents are Mexican citizens. Petitioner intended her children to travel to the United States using their American birth certificates and return to Mexico using their Mexican birth certificates. Petitioner's mother, nephew, and three children traveled to the United States as planned in early August 2012. Just a few days into the visit, however, Petitioner decided that her mother and nephew should end the trip and return the children to Mexico. As the children and Petitioner's mother and nephew headed south from Denver through Colorado on a commercial bus on August 8, 2012, Respondent and his sister contacted the bus company to request the bus to be stopped, claiming people were taking Respondent's children illegally. The bus driver pulled the bus over and Respondent, his sister, and his girlfriend, all of whom had been following the bus, pulled behind it and waited a few minutes until the City of Pueblo police officer arrived, took the children off the bus, and gave them to Respondent. Respondent assured the children that he just wanted to continue their visit but would return them home to their mother in Mexico after the two-week visit. The day after taking the children off the bus, Respondent filed a petition for custody in Adams County District Court. The Adams County magistrate dismissed the case on September 13, 2012, for lack of jurisdiction. Respondent decided he would not allow the children to return to Mexico.

Petitioner filed on October 8, 2012, an application with the Mexican Central Authority seeking return of the boys from the United States. Petitioner on March 27, 2013, filed the now-pending Petition with the district Court. For its analysis, the Court applied the Tenth Circuit's procedural directives on handling Convention petitions. It observed that Courts have also made it clear that a parent cannot create a new settled purpose and therefore a new habitual residence simply by fleeing a country with a child in tow or retaining a child in his former habitual residence. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997) "In an attempt to untangle the Gordian knot the parents, together, have seen fit to tie," the court indicated, in discussing the parents' repeated efforts to help themselves outside legitimate legal channels through "grab-and-run" law, that it would "refuse to condone such conduct." Id. The Tenth Circuit in Ohlander addressed parents who had both filed petitions under the Hague Convention; thus, the court also provided specific details of the "proper interpretation of the Hague Convention's procedures." The court criticized and ultimately reversed the district court for "misconstru(ing) the Convention's contemplated procedures." "According to the Convention, once a petition is filed, a court should consider only whether respondent's removals of a child are wrongful." A court is to examine whether a respondent parent took the child wrongfully-not whether the petitioning parent did. Similarly, exceptions to return run only one way-a respondent asserts them, not a petitioner. Only when a cross petition is filed would bilateral analysis be appropriate. Petitioner asserted that the habitual residence was Mexico, where the children lived for two years and four months with the Respondent's eventual acquiescence. Respondent's primary theory of habitual residence relied on the children's birth and residence in the United States and Petitioner's removal of the children to Mexico without his permission or consent.

The Court found that the parents shared an intent that the children's habitual residence would be Mexico. This shared intent was sufficient for the Court to find that the parents had a "settled purpose" that the children's habitual residence would be Mexico. While the Court believed it likely that Respondent did not initially agree to such a move nor did he immediately know that Petitioner planned a permanent move, even his own testimony indicated he knew within weeks of Petitioner's intent to stay there. The Court found Respondent's testimony credible that he continued his involvement with the children once they moved to Mexico, that he called them regularly, and that he sent them money. However, these facts merely validated the argument that he knew where they were, knew they were integrating in school and the community, and yet still did not seek their return in any way. As in Mozes, the Court also considered the significant passage of time. Respondent allowed the children to stay in Mexico for two years and four months, which is long enough to create a "settled purpose" that this was the children's new habitual residence-if not by clear consent, then at least by clear acquiescence. Mozes, 239 F.3d at 1081. Similarly, Respondent's own testimony indicated that he knew the children were only coming to visit the United States for two weeks and that they would return home to Mexico to start the school year. Regardless of his reasons, the Court found that not unlike the grab-and-run parents in Feder and Ohlander, the Respondent utilized his own illegal version of grab-and-run law, taking matters into his own hands and running down a bus to wrongfully retain his children. He testified that he stopped the bus because he wanted his full two weeks of visitation, not to keep them permanently. Respondent's attempt to reestablish their U.S. habitual residence failed, because wrongfully retaining children for two months before their mother filed her Petition did not create a new "settled purpose" and change the habitual residence from Mexico. Respondent continued to assert that Petitioner was the initial abductor back in April 2010 when she left for Mexico. Even assuming the truth of this assertion, the Court found that the Respondent within the first year of their wrongful taking could have sought a legal remedy for their return. Importantly, he did not. He sought no legal remedy for their return, including failing to file his own Convention petition. As the Tenth Circuit clearly directed in Ohlander, this Court is to evaluate the current petition in only one direction: "whether the respondent's removals of a child are wrongful." Ohlander, 114 F.3d at 1540. The Court's consideration of "whether the petitioner's removals of the child were wrongful" would be "antithetic[al] to the Convention's intent as a whole." Therefore, Respondent's arguments concerning his efforts to regain his children, made years too late after the children had become well established in a new habitual residence to which he consented by his actions, and made without the required framework of a Convention petition, fell short. Thus, the court found that the habitual residence was Mexico.

The Court found that Mexican law, as outlined in the Civil Code for the State of Durango, Mexico, uses a concept called "patria potestas " ("parental authority/responsibility") to determine rights of custody. United States courts have determined that patria potestas creates rights of custody, not rights of access, and begins from birth. Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000). The Court found that Petitioner had rights of custody under Mexican law as described in Whallon that far exceeded mere rights of access as described in Abbott, and that Respondent breached those rights by retaining the children in the United States. Petitioner enrolled the children in school, met their physical and religious needs, participated in their day-to-day lives, made decisions about their care, and lived with them as their primary caretaker until the August 2012 retention. The Court found that under the Convention, Petitioner's care of the children until their removal demonstrated her exercise of those rights of custody at the time of their retention in the United States. The Court determined that Petitioner met her burden, and that Respondent did not establish any exceptions. It granted her petition.

Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) [Honduras] Necessary Costs and Expenses]

In Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) the district judge made an order granting an award of reasonable attorney's fees to Plaintiff, Krisna Juliek Haycock, against Defendant, Carlos Rafael Ebanks, Jr., and referred the matter to a Magistrate Judge to determine the reasonableness of Plaintiff's fee application.

The Magistrate observed that the Supreme Court indicated that the "lodestar" calculation is the "most useful starting point" for determining the award of attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). After determining the lodestar, the court must then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). The court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993). However, the lodestar should be modified only in exceptional cases. Id. (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). The fee application submitted by Haycock sought to recover fees from two attorneys who it claimed works on the case, Michael D. Conroy, who practiced in Covington, Louisiana, and Cesar Gonzalez Icaza, who practiced in Roatan Bay, Honduras. Stephen Conroy, Christie Marks, and Haycock submitted affidavits in support of this motion. The Court observed that attorney's fees must be calculated at the "prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895 (1984). Such a request is reasonable if it falls within the "range" of reasonable fees awarded. See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir.1995). The applicant bears the burden of producing satisfactory evidence that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir.1987). Satisfactory evidence of the reasonableness of the rate necessarily includes an affidavit of the attorney performing the work and information of rates actually billed and paid in similar lawsuits. Blum, 465 U.S. at 896 n. 11. However, mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439, n. 15.

No affidavit of a disinterested attorney in this matter who could have attested to Gonzalez's position or his prestige at his law firm was attached. Because the mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate, the Court found Gonzalez's fee unreasonable, and unrecoverable. Ebanks did not oppose Conroy's proposed hourly rate of $250.00 per hour. Where an "attorney's rate ... is not contested, it is prima facie reasonable." La. Power & Light, 50 F.3d at 328. Conroy's verified report of attorney's fees also requested fees for Amanda D. Hogue, an attorney at "Conroy Law Firm, PLC" who was not enrolled in this matter. None of the affidavits provided that Ms. Hogue was an attorney in this case, or provided any other specific indication of the qualifications, experience, or any special skills Ms. Hogue had to determine whether or not her proposed rate of $125.00-$150.00 per hour was reasonable. Therefore, the reasonableness of the rates listed for Ms. Hogue were disallowed for failing to present evidence substantiating her background, education and experience. The Court found that the five hours Ms. Hogue billed was unrecoverable

Given the fact that Haycock submitted an itemized list of billable entries, as well as the fact that these entries were reasonably delineated, the Court conducted a line-by-line analysis of the bill in question to determine whether it is reasonable. It sorted Haycock's entries into the following categories: (a) vague entries, (b) irrelevant entries and (c) block billed entries. The Court awarded Conroy 50% of the total time requested in connection with the vague entries. The fee application submitted by Haycock contained a number of entries which were viewed as "block billing." This term can be defined as the time-keeping method by which an attorney lumps together the total daily time spent working on a case, rather than itemizing the time expended on specific tasks."This practice makes it impossible for the Court to determine the reasonableness of the hours spent on each task." While block billing creates impediments to the analysis of the attorney's fee bill, the Supreme Court has indicated that it is not a basis for refusing to award attorney's fees. Hensley, 461 U.S. at 437, n. 12. The method most often used to compensate for block billing is a flat reduction of a specific percentage from the award. The Court reduced the value of all block billed entries for block billed entries for Conroy by 30%.

Haycock requested reimbursement for the transportation costs, including airfare, hotel costs and travel expenses of Haycock and S.C.E Federal courts typically award successful ICARA petitioners "airfare incurred in traveling to and from the United States to appear in court."Paulus, at *4.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). Furthermore, federal courts have also awarded expenses that were "reasonable and necessary" for a petitioner to participate in the ICARA proceeding and "pick up" the child. See e.g., id. See also 42 U.S.C. 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"); Salinier v. Moore, 2010 WL 3515699, at *4 (D.Colo. Sept., 1, 2010) (finding that travel and lodging expenses for petitioner's parents is clearly inappropriate, but that costs associated with Petitioner's wife's travel, including travel and lodging expenses, who also testified at the hearing, was appropriate). The Court found the appropriate award for transportation costs as it pertains to Haycock and S.C.E., totaled $4,079.32. Haycock sought reimbursement for Tammy Haycock Moore's flight from New Orleans Louisiana, to Orlando, Florida, to accompany S.C.E., as Haycock herself was unable to travel to obtain the child. Ebanks argued that this expense was unnecessary, as the child was being "released to her local attorney, Mr. Conroy, from the child's school," and Tammy was not required to facilitate the transportation. A petitioner may be awarded reasonable expenses that are necessary to facilitate the return of the child after an ICARA proceeding, unless the opposing party can establish that such award would be "clearly inappropriate." 42 U.S.C. s 11607(b)(3); Guaragno, at *5; Freier, 985 F.Supp. at 714. Although Ebanks argued that reimbursing Tammy's transportation costs were unreasonable and unnecessary, Courts have awarded expenses to the parent or relative facilitating the transportation or return of the child. Paulus, at *4;see, e.g., Freier, 985 F.Supp. at 714;Guaragno, at *5. 42 U.S.C. s 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Aldinger, 157 Fed. App'x 317, 2005 WL 3116540; Neves v. Neves, 637 F.Supp.2d 322 (W.D.N.C.2009); Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"). Ebanks failed to establish that this expense is clearly inappropriate. The Court found that reimbursement for Tammy's travel expenses of $557.80, as documented, was granted.

Haycock sought to recover approximately $787.41 in airfare costs, $1,121.54 for hotel, food and other travel expenses associated with the trip Cesar Gonzalez made to New Orleans for the ICARA bench trial. Haycock also sought to recover approximately $1,343.00 in fees associated with the "Hague Trip to Guanaya, Bay Islands" for interviews associated with Gonzalez and "Nilla Ramos" a Hague Attorney, "Geraldina" a psychologist and "Silvia" a social worker. Ebanks opposed reimbursement of the Hague Trip Interviews, and for Gonzalez's expenses related to food, gas and hotel stay during his stay in New Orleans for the failure to provide adequate documentation. The Court found that the airfare of Gonzalez, as evidenced by the receipt attached to the motion for $739.70 was recoverable. Similar to Distler v. Distler, attorneys fees and costs were recoverable to foreign counsel who was not Plaintiff's trial attorney in the United States because the foreign counsel had helped to facilitate the return of the child under the ICARA and similar to Gonzalez, had provided legal advice and attested to Petitioner's rights under the Hague Convention. See Distler, 26 F.Supp.2d 723, 728 (D.C.N.J.1998); see also Grimer v. Grimer, No. 93-4086-DES, 1993 WL 545261 (D.Kan. Dec. 8, 1998).

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.