Report and
recommendation of US Magistrate Judge that certain facts and law be considered
established and that the court order the
guardian ad litem to report on the issues, including allegations of
grave risk, age and degree of maturity, credibility, and potential undue
influence. There is precedent for such appointment in Hague Convention cases.
See, e.g., Lieberman v.
Tabachnik, 625 F.Supp.2d 1109, 1114B15 (D.Colo.2008); Garcia v. Pinelo, 2015 WL 4910654, at
*2B3 (N.D. Ill. Aug 16, 2015); Yaman v. Yaman, 730 F.3d 1, 6 (1st Cir.2013)
(noting that the district court appointed a guardian ad litem to issue a report
on the children's behalf); Bowen
v. Bowen, 2014 WL 2154905, at *3 (W.D.Pa. May 22, 2014)].
In our International Child Abduction Blog we report Hague Convention Child Abduction Cases decided by the US Supreme Court, the Second Circuit Court of Appeals, Circuit Courts of Appeals, district courts and New York State Courts. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.
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Monday, May 23, 2016
Neuman v Neuman, 2016 WL 2864969 (ED Michigan) [Mexico] [Petition granted] [Habitual Residence]
Almost four years in Mexico was
sufficient to render Mexico the children's country of habitual residence.
Indicators suggestive of acclimatization include social engagements,
participation in sports programs and other excursions, meaningful connections
with people and places,and most especially,academic activities, which are
“among ‘the most central...in a child's life.’ Even though the Mexico
assignment was a temporary one, Mexico was, both at the time of removal and for
some years prior, the exclusive site of the children's day-to-day lives and
experiences. It was in Mexico where the Neumanns maintained a home and a
majority of their belongings.While respondent stressed that there was no
settled intent to remain in Mexico permanently, this argument ignored that the
Sixth Circuit has specifically rejected the notion that the parents' subjective
intent should control. The Sixth Circuit
deplored this “subjective intent” approach, which “made seemingly easy cases
hard and reached results that are questionable at best,” Robert, 507 F.3d at
990-991.
Minette v Minette 2016 WL 491832 (SD Ohio, 2016) [Italy] [Fed & State Jud Rem] [Abstention]
Motion for abstention and stay
pursuant Younger v. Harris, 401
U.S. 37 (1971). Motion granted.
Mendoza v Esquivel 2016 WL 1436289 (SD Ohio, 2016) [Mexico] [Petition for Return Granted]
Respondent failed to establish grave
risk of harm defense. Respondent presented no evidence that the Children are
aware of any incidents of abuse or Petitioner's prior alleged drug use. Respondent
did not allege that Petitioner ever abused (either physically or verbally) the
Children themselves or ever used drugs in their presence. The facts that
Respondent never filed a police report, received medical care, sought social
services, or took other action to document the alleged abuse weighs against a
finding that any abuse exceeded the Arelatively minor@ category set forth in Simcox.
Respondent failed to meet her burden in proving that Michoacán, Mexico was a
zone of war, famine, or disease. The discrete examples of violence to which
Respondent testified were insufficient to prove that the country of Mexico or
the state of Michoacán pose a grave risk of harm to the Children upon their
return. Respondent did not provide any evidence comparing the crime rates in Michoacán
to those in Columbus, Ohio, or explain why the Children faced a greater risk of
violence in Mexico than they face in the United States. The fact that the
United States has issued a travel warning to citizens traveling to Michoacán,
Mexico is insufficient to establish that Michoacán, Mexico is a war zone.
Mertens v Kleinsorge-Mertens 2016 WL 9943589 (D.NM, 2016 ) [Germany] [Petition for Return granted]
Court held it
was appropriated to examine Child in camera with law clerks and court reporter
present.
Mendoza v Pascual 2016 WL 320951 (S.D. Georgia, 2016) [Mexico][Petition denied]
Court appointed a guardian ad litem
for minor child who submitted a report to the Court and testified briefly. There was insufficient evidence that Mexico ever became A.M.'s habitual residence.
Therefore, the retention of A.M. in Illinois in August 2014 was not a wrongful
retention within the meaning of Article 3 of the Hague Convention and without a
wrongful retention, this Court has no authority to order the child to be
returned to Mexico.
Application of Martinez v Fuentes, 2016 WL 1734107 (WD Oklahoma) [Mexico] [Equitable jurisdiction]
The district court
found that the Petitioner established his prima facie case, and that
there was an insufficient factual basis to conclude by clear and
convincing evidence that there was a grave risk of harm to the Children if they
were returned to Mexico,. The Court declined to exercise its limited discretion
under the Hague Convention and ICARA to refuse to return the Children to their
country of habitual residence.
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