Rein v Rein, 1996 WL 273993 (S.D.N.Y., 1996)[PETITION DISMISSED] PETITIONER CANNOT INVOKE HAGUE CONVENTION UNLESS CHILD IS “HABITUALLY RESIDENT” IN A STATE SIGNATORY AND HAS BEEN REMOVED TO OR RETAINED IN A DIFFERENT SIGNATORY STATE.]

          In Rein v Rein, 1996 WL 273993 (S.D.N.Y., 1996) Plaintiff Stewart Rein, brought an action on his own behalf and purported to do so as well on behalf of his nine year old daughter Lindsey Rein. The Court held , inter alia, that it lacked jurisdiction to hear plaintiff's claims brought pursuant to ICARA. The remedy available under ICARA is an order that the child be returned from the jurisdiction of his or her wrongful removal or retention, and an adjudication of any custody dispute by the jurisdiction where the child “habitually resided” prior to the wrongful removal or retention. Plaintiff alleged in his amended complaint that Lindsey was a habitual resident of France who was wrongfully removed to England. Even assuming that Lindsey was in fact a habitual resident of France -- a question which was disputed -- it was clear that plaintiff could not bring this action in this jurisdiction seeking relief under ICARA. Pursuant to that statute, a person seeking the return of a child may commence an action “in any court 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) . Plaintiff did not allege that Lindsey was abducted to the United States (let alone New York) and she was not located in a place where the Court could exercise jurisdiction over her; instead, she was allegedly being improperly held in England. Any petition pursuant to the Hague Convention must be brought there. Accordingly, plaintiff's claims based on the Hague Convention and ICARA were dismissed against all defendants for lack of subject matter jurisdiction.

Litowchak v Litowchak, 2015 WL 7428573 (D. Vermont, 2015) [Australia] [Federal & State Judicial Remedies] [Motion to Amend Petition to add Respondents Father as Respondent granted]

           In Litowchak v Litowchak, 2015 WL 7428573 (D. Vermont, 2015) the Court granted the Petitioners motion to amend the petition to add Dr. Alan Betts, Respondent Elizabeth Litowchak’s father, as a respondent. The proposed Amended Petition included allegations related to Dr. Betts’s participation in the alleged abduction of Petitioner’s and Respondent’s children. Respondent opposes the motion, arguing that the proposed amendment was futile because Petitioner lacks standing to sue Dr. Betts. In support of his motion, Petitioner described Dr. Betts’s alleged “role in the removal and retention of the Litowchak children.” Petitioner claimed that Dr. Betts purchased plane tickets for Respondent and the children to leave Australia. He alleged that thereafter Dr. Betts contacted Petitioner’s employer on multiple occasions seeking reimbursement for expenses related to the children, including the plane tickets that facilitated their removal from Australia. Petitioner also asserted that Dr. Betts arranged and provided housing for Respondent and the children after they left Australia, and that Dr. Betts concealed the children’s location from Petitioner. Respondent argued that Petitioner’s proposed amendment was futile because Dr. Betts did not have legal or physical custody of the children, and therefore the court could not provide “the sole remedy available under ICARA: an order directing Dr. Betts to remove the children from the United States and return them to Australia.”  The District Court observed that the  Hague Convention and ICARA provide remedies beyond orders requiring the return of a child. See 22 U.S.C. § 9003(h) (“The remedies established by the [Hague] Convention and this chapter shall be in addition to remedies available under other laws or international agreements.”); 22 U.S.C. § 9004(a) (“In furtherance of the objectives ... of the [Hague] Convention ... [the] court ... 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.”). The Court found that  Dr. Betts had a close familial relationship with the children, and the allegations in Petitioner’s proposed Amended Petition concerned Dr. Betts’s role in the removal of the children from Australia and their alleged concealment from Petitioner. Dr. Betts’s actions were therefore clearly within the scope of actions addressed by the Hague Convention. Moreover, the court may redress those allegedly unlawful actions by granting appropriate remedies in addition to the return of the children to Australia. See 22 U.S.C. § 9004(a). Among other remedies, the court may order an injunction requiring Dr. Betts to cease the “further removal or concealment” of the children. 22 U.S.C. § 9004(a). Additionally, to the extent Dr. Betts committed the abduction of the children, he may be liable for Petitioner’s expenses. See 22 U.S.C. § 9007(b)(3) (“Any court ordering the return of a child pursuant to an action brought under [§] 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner[.]”). Respondent thus failed to demonstrate that amendment would be futile. Absent such a showing, leave to amend should be freely granted.

Didon v Castillo, 2015 WL 5095231 (MD Pennsylvania, 2015) [St. Martin/French West Indies] [Petition granted] [Rights of Custody]

J.D. and A.D. were habitual residents of both Sint Maarten and Saint Martin. The court concluded that Didon did not have custodial rights to J.D. at the time of the wrongful retention and denied Didon's petition with respect to minor child J.D. Court granted petition with respect to minor child A.D.

Green v Green 2015 WL 7572603 (D. Nevada, 2015). [Canada] [Petition denied] [Habitual Residence]

Recommendation that Petition for Return of Children be denied. While parents intended to abandon US and establish habitual residence in Canada the Green’s children acclimated to the U.S. and Las Vegas was children’s habitual residence.

Alcala v Hernandez 2015 WL 4429425 (SD South Carolina, 2015) [Mexico] [Petition denied; now-settled defense established]

Delgado v Osuna, 2015 WL 5651352 (ED Texas, 2015) [Venezuela] [Petition denied].

Petitioner failed to satisfy his burden to show that there was wrongful removal and/or retention, and the Respondent proved by a preponderance of the evidence that Petitioner consented to the removal and/or retention of the children in the United States

Sabogal v. Velarde, 2015 WL 2452702 [D. Maryland][Peru] [Federal & State Judicial Remedies] [Petition conditionally granted]

Petition for return conditionally granted in this case where there was domestic abuse. Court finds grave risk of harm that return of children to father in Peru during pendency of custody proceedings would expose them to psychological harm or otherwise place them in an intolerable condition. Undertakings ordered as a condition of return.