Action dismissed after child returned
to Mexico. Award of $12,010 in attorneys fees not clearly inappropriate where
respondent was retired as he was receiving a pension and the amount was
reasonable in light of the purpose of attorneys fees under the Convention is to deter violations of the
convention. Loadstar approach utilized. Attorneys rate of $300 per hour was
reasonable but rates of legal assistants were reduced from $175 and $125 to
$100 because they did not provide information as to the reasonable hourly rates
in Portland and did not provide information as to their experience as legal
assistants. Costs are generally awarded to the prevailing party in a civil
action unless the court directs otherwise. Fed R. Civ. P. 54(d). Costs are
limited to those defined in 28 USC '1920. Costs of $3000 awarded to
petitioner.
Monday, May 23, 2016
Sabogal v Paula Velarde 2016 WL 9906163 (WD Md., 2016) [Peru] [Petition Conditionally Granted]
Petition for return was granted conditionally
if the following pre-conditions had been
satisfied: 1. The October 2014 appeals court order of temporary custody in
favor of Correa has been vacated and the underlying temporary custody order in
favor of Velarde has been reinstated; 2. All pending criminal complaints,
investigations, or charges in Peru against Velarde, initiated by or with the
assistance of Correa, have been dismissed or closed; and 3. Correa agrees in
writing to the undertakings listed in the accompanying Order. Although Correa
had successfully arranged for the vacating of the temporary custody order in
his favor and the dismissal of one of the criminal matters against Velarde, he
had not arranged for the final dismissal of the Disobeying and Resisting
Authority charge. Because Correa had not satisfied the conditions for entry of
a final order to return the Children to Peru, his motion that he satisfied the
conditions was denied.
Ochoa v Suarez 2016 WL 9647646 (WD Mich, 2016) [Mexico] [Guardian ad litem]
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)].
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.
Lamire v Audette 2016 WL 452317 (MD Fla, 2016 ) [Canada] (Costs)
Recommended attorneys fee award of $3,839.88 was
reduced by $670.00, for a fee award of $3,169.88 and a total award of fees,
costs, and expenses of $4,547.84.
In Re K.J 2016 WL 874360 (SD Fla, 2016) [Sweden] [Petition granted] [now settled defense not established]
Although
more than one year passed between the date of wrongful removal and the date of
filing the Court found that K.J. was not
now settled in his new environment. Age and maturity defense not established
where 11 year old child, was found sufficiently mature that his views should be
taken into account and did not object to returning to Sweden. At most, K.J. was
ambivalent as to whether to remain in the United States or return to Sweden.
Such ambivalence in K.J.'s wishes with respect to returning to Sweden was
insufficient to meet Respondent's burden of proof as to this exception.
Guevara v Soto, 2016 WL 1558384 (E.D. Tenn, 2016) [Mexico] [Petition granted]
Defendant did not prove that
plaintiff consented to or subsequently acquiesced in the child's removal or retention. Although the
child was removed from Mexico to the United States more than a year before the
petition was filed the child was not now settled in his new environment; nor
did she establish the Agrave risk exception. While defendant alleged
that she was fearful to return to Mexico, she did not prove that there was a
grave risk of harm that returning the child to Mexico would either place him in
danger prior to resolution of a custody hearing or subject him to serious abuse
or neglect from plaintiff. She did not allege that plaintiff abused the child
or that the Mexican courts would be unwilling or incapable of protecting the
child during the pendency of a custody hearing, or that she would be denied due
process of law for a custody hearing in Mexico.
Godoy v De Batres 2016 WL 397471 (D.Colo, 2016 ) [El Salvador] [Fees & Expenses]
Petitioner awarded costs as necessary expenses for filing and service fees ($564.50); translation costs ($523.30); and interpreter services ($850.00).
De La Riva v Soto, 2016 WL 1696539 (M.D. Florida, 2016) [Mexico][Petition granted] [Patria Potesas] [Equitable Discretion under Article 18]
Wrongful retention of child in Florida at end of
agreed upon visitation. Petitioner had rights of custody under the doctrine of
Patria Potestas. Although the now settled child exception was available the
court preferred to return the child in view of his unsettled immigration
status. Additionally, the court would exercise its Aequitable discretion under Article 18
to order the childs return.
Cillikova v Cillik 2016 WL 541134 (D.NJ, 2016) [Slovak Republic] [Fees & Expenses]
Petitioners motion granted $3148.96 in travel, lodging, and translation
expenses. Petitioners motion seeking to recover $158,955.75 in attorneys fees
and costs denied without prejudice, subject to the receipt of additional
submissions. The vast majority of
$13,734.25 in costs asserted by Petitioners counsel comprised claimed
WestLaw charges. Petitioner failed to submit sufficient evidence of their
necessity or reasonableness and the claimed $13,329.15 appeared facially
excessive, particularly for practitioners with experience in this discrete
field of law. Petitioner given time to submit evidence going to the necessity
and reasonableness of the hours worked by her counsel, including submission of
an unredacted itemized billing record for in camera review, her counsels
claimed hourly rates, and the asserted research expenses. Respondent given an
opportunity to raise specific challenges to this evidence (other than the
portions of the attorney invoices that the Court reviews in camera). The Court
granted additional time for the Respondent to submit evidence regarding his
financial circumstances and for either party to report any disposition as to former
joint property or other assets.
Albani v Albani 2016 WL 158583 (SD Cal, 2016) [Mexico] [Petition denied]
Child’s Habitual residence was United
States. Well settled defense also established
Gwiazdowski v. Gwiazdowska, 2015 WL 1514436 (E.D.N.Y.) [Poland] [Petition denied] [Now Settled Defense Established]
In Gwiazdowski v. Gwiazdowska, 2015 WL
1514436 (E.D.N.Y.) on February 11, 2014, Cezary Gwiazdowski
("Cezary") brought a petition pursuant to the Hague Convention for
the return to Poland of his two children, K.G. and M.G., who resided in the
United States with Anetta Gwiazdowska
("Anetta"), his wife and the biological mother of the two
children, since April 2011.
The District Court found that the
petitioner made out a prima facie case for return and addressed the Article 12
defense in its opinion. It observed that under Article 12 of the Hague
Convention, if a Hague Convention petition is filed more than one year after
the wrongful removal, the Court "shall ... order the return of the child,
unless it is demonstrated that the child is now settled in its new
environment." The respondent bears the burden of establishing this defense by a preponderance
of the evidence. 22 U.S.C. §9003(e)(2)(B).
Though the Convention does not define the term "settled," the
Second Circuit has stated that the term "should be viewed to mean that the
child has significant emotional and physical
connections demonstrating security, stability, and permanence in its new
environment." Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir.2012).
The Court held a hearing, and with consent from both parties, the Court
interviewed K.G. (age 10) and M.G. (age 8) in camera outside of the presence of
the parties and their respective counsel. It observed that this procedure
"is consistent with those adopted by district courts in Hague Convention
cases." Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 n. 1 (E.D.N.Y.2010).
The district court found that in July
2003, the couple married in a Polish Catholic church in Brooklyn, New York, a
choice they made so that Anetta's mother, who lived in Maspeth, New York, could
attend the wedding. The couple returned to Elblag, Poland soon afterwards and
had two sons, K.G., born in 2004, and M.G., born in 2008. On April 11, 2011, Anetta left Poland with
the children and moved into her mother's home in Maspeth. Anetta did not inform Cezary that
she was taking the children or obtain his consent to do so. For the first several months following her
departure, Cezary held out hope that she would return to Poland and resume
their life together, though the couple spoke infrequently on the phone.
However, in early 2012, Anetta informed Cezary that she did not intend to
return to Poland and wanted to file for
divorce. Cezary traveled to New York in March 2012 to speak to her and the
children in person. When Anetta refused to meet with him or let him speak with
the children, Cezary consulted a lawyer
and filed a custody petition in Family Court.
The Family Court proceedings apparently languished until late 2013, when
Anetta filed her own custody petition in Family Court.. During the pendency of
the Family Court proceedings, Cezary was permitted to speak with Anetta and the
children three times a week over Skype,
and was permitted to occasionally visit the children in the United States. Since March 2012, he visited the children approximately five times
a year. On June 10, 2014, the Department of State sent a letter to the Family
Court informing the court that Cezary had filed an application with the
Department of State for the return of the children. The letter further informed
the Family Court that, under Article 16 of the Hague Convention, the court
should defer decision on the merits of rights of custody until Cezary's Hague
Convention petition was adjudicated. See Hague Convention art. 16 ("After
receiving notice of a wrongful removal or retention of a child in the sense of
Article 3, the judicial or administrative authorities of the Contracting State
to which the child has been removed or in which it has been retained shall not
decide on the merits of rights of custody until it has been determined that the
child is not to be returned under this Convention...."). Despite this letter, on December 17, 2014,
the Family Court entered a final order in Anetta's custody proceeding. The
order granted legal and physical custody of the children to Anetta, and granted
Cezary visitation with the children on a schedule set by the Family Court,
subject to the condition that "[Cezary] must not remove the children
outside and beyond the United States" and that "[t]he children's
passports are to remain in the possession of [Anetta]." In February 2015, Cezary traveled to the
United States and went on vacation with the children to the Pocono Mountains in
Pennsylvania. Cezary plans to return to the United States in April 2015 for
M.G.'s First Holy Communion. When he is in Poland, Cezary speaks with his
children on Skype every Monday, Wednesday, and Friday, though he complained
that "maybe 30 percent of [the time] they are not available.”
The Court concluded that Anetta's
removal of the children in April 2011 was
wrongful under the Hague Convention. The children were habitually
resident in Poland at the time of the
removal. Cezary was exercising his
custody rights at that time, since Cezary and
Anetta lived together and had joint custody of the children at the time
of removal. Anetta's removal of the children appeared to have been in breach of
Cezary's custody rights under Polish law. See
In re Skrodzki, 642 F.Supp.2d 108, 115 (E.D.N.Y.2007).
However, the Court found that
Anetta established that the children are now settled in the United
States. The petition was filed almost three years after Anetta's removal of the
children from Poland, and the "settled" defense was available to Anetta.
See Hague Convention, art. 12. It
observed that to determine whether a child a settled, a district court must
consider a variety of factors,
including:(1) the age of the child; (2) the stability of the child's
residence in the new environment; (3)
whether the child attends school or day care consistently; (4) whether the child attends church [or
participates in other community or
extracurricular school activities] regularly; (5) the respondent's
employment and financial stability; (6)
whether the child has friends and relatives in the new area; and (7) the immigration status of
the child and the respondent. Lozano,
697 F.3d at 57.
The Court addressed these factors in
turn. If noted that the stability of a child's residence "plays a significant
role in the 'settled' inquiry." In re D.T.J., 956 F.Supp.2d 523, 535
(S.D.N.Y.2013). K.G. and M.G. lived at Anetta's mother's house since moving to
the United States and felt comfortable
in their home environment. The Court
concluded that the children had a stable and happy home in New York. Cezary acknowledged that the children had a
group of friends in school here, a fact confirmed by K.G. and M.G. during the
in camera interview. By contrast, the children did not appear to have
significant attachments to Poland. Further, while the children had several relatives who lived
in Poland, Anetta testified that most of their family members live eight hours
from Elblag by train and Cezary did not dispute this fact. It was therefore
unclear how much contact the children would have with these family members even
if they lived with Cezary in Elblag.
K.G. and M.G. attended Saint
Stanislaus Kostka School in Maspeth, New York, since August 2011. The children's school records
demonstrated that they were in regular attendance and received good grades. In
addition, both parents acknowledged that K.G. and M.G. regularly attended
church in the United States. K.G. received his First Holy Communion in 2014,
while M.G. was scheduled to receive his First Holy Communion in April. K.G., who was 10 years old, and M.G., who was
8, were old enough to form meaningful attachments to their new environment. See In re Robinson, 983 F.Supp. 1339, 1345
(D.Colo.1997) (concluding that 10-year-old and 6-year-old "are old enough
to allow meaningful connections to the new environment to evolve ...[while]
children of a very young age are not").
Anetta was not currently employed in the United States but was attending
university and studying to receive a medical license in the United States. It
was unclear whether Anetta would be able to find employment once she completed
her studies or how much she would earn if she does. However, Anetta testified that her mother and
stepfather, who collectively earned approximately $200,000 a year, significantly
contributed towards the children's expenses.
As the Second Circuit has noted, "[t]he importance of a child's
immigration status [for the 'settled' defense] will inevitably vary for
innumerable reasons, including: the likelihood that the child will be able to
acquire legal status or otherwise remain in the United States, the child's age,
and the extent to which the child will be harmed by her inability to receive
certain government benefits." Lozano, 697 F.3d at 57. Anetta and the children were currently
residing in the United States on F1 non-immigrant visas, which allowed them to remain in the United
States as long as Anetta remained in school. The fact that the children were here legally was a
positive factor in the "settled" analysis. See Demaj v. Sakaj, No. 3:09-CV-255, 2013 WL
1131418, at *23 (D.Conn. Mar. 18, 2013) (concluding that mother and children's
approval for nonimmigrant U visas supported the mother's "settled"
defense). However, the Court was unclear whether Anetta would be able to obtain
legal residence in the United States
when her student visa ends, and Anetta presented no evidence of how she intended to pursue legal status upon
completion of her studies. After weighing all of these factors, the Court
concluded that Anetta met her burden of
demonstrating by a preponderance of the evidence that the children were
settled in their current environment. The Court
found that the elements of the Article 12 defense had been met.
The Court also considered whether it should
exercise its discretion to repatriate K.G. and M.G. notwithstanding that Anetta
has established an affirmative defense under the Hague Convention. See Friedrich v. Friedrich, 78 F.3d 1060, 1067
(6th Cir.1996) ("[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."). Since there was no evidence
that Anetta's relocation to the United States was motivated by a desire to
remove the children to a jurisdiction
more favorable to her custody claims, the Court saw no reason to do so.
See In
re D.T.J., 956 F.Supp.2d at 549 (declining to exercise discretion to
remove children, notwithstanding
affirmative defense, because there was no evidence that mother removed children
to obtain a more favorable custody ruling). Cezary's petition was denied.
Panteleris v. Panteleris, --- Fed.Appx. ----, 2015 WL 468197(6th Cir., 2015)[Australia] [Petition granted] [Habitual Residence]
In Panteleris v. Panteleris, ---
Fed.Appx. ----, 2015 WL 468197(6th Cir., 2015), the Sixth Circuit affirmed the
district court's grant of plaintiff Anthimos Panteleris's petition for return
of their three children to Australia.
Anthimos Panteleris, a citizen of
Australia, and Aalison Panteleris, a citizen of the United States, married in
the United States in 2005. Four months after their first child was born in the
United States, the family traveled to Australia in March 2007. The Pantelerises
had two more children in Australia. The family lived together in Australia
until they traveled to the United States in March 2012. Mr. Panteleris testified that the family
intended to take a six-month to one-year extended vacation to visit Ms.
Panteleris's family in Ohio, similar to a holiday Mr. Panteleris had taken with
his parents when he was four years old. Ms. Panteleris testified that the
family had relocated to the United States indefinitely. At the time of their
arrival in the United States, the children were aged five years, three years,
and four months. In April 2012, after visiting Hawaii for several weeks, the
family arrived in Ms. Panteleris's hometown of Salem, Ohio. They moved into an
apartment with a one-year lease. Ms. Panteleris obtained employment and Mr.
Panteleris, who could not work under his visa status, stayed at home with the
children. The eldest two children were enrolled in school. Ms. Panteleris later
quit her job in November 2012, and the family's savings were largely depleted.
On December 2, 2012, Mr. Panteleris returned to Australia alone. Mr. Panteleris
testified that he returned to Australia to obtain employment and prepare for
the family's return to Australia. According to Mr. Panteleris, after he secured
a stable job, he requested in May 2013 that Ms. Panteleris and the children
return to Australia but Ms. Panteleris refused.
Mr. Panteleris filed a petition for
return of the children in United States district court on February 28, 2014.
The court held a five-hour evidentiary hearing. In July 2014, the court issued
an opinion and order granting plaintiff's petition and ordering the children
returned to Australia. There the Sixth Circuit granted defendant's emergency
motion to stay the order pending appeal.
The Court pointed out that in a case
involving an action for return of a child under the Hague Convention, it
reviews the district court's findings of fact for clear error and reviews its
conclusions about American, foreign, and international law de novo. Simcox v.
Simcox, 511 F.3d 594, 601 (6th Cir.2007).
In this case, the district court found
that, at the time of wrongful retention, Mr. Panteleris was exercising his
custody rights under the Australian Family Law Act by maintaining a
relationship with his children. On appeal, Ms. Panteleris did not dispute that
Mr. Panteleris had custody rights, but argued that he voluntarily relinquished
his rights by returning to Australia and making only “sporadic” attempts to
contact the children. The Court found that this recharacterization of the facts
fells short of “clear and unequivocal abandonment.” The district court
addressed this issue in detail, observing that “courts should ‘liberally find
“exercise” whenever a parent with de jure custody rights keeps, or seeks to
keep, any sort of regular contact with his or her child. The district court
found that Mr. Panteleris “regularly” communicated with his children between
December 2012 and May 2013, the date of wrongful retention. Moreover, although
Mr. Panteleris did not provide direct financial support, Ms. Panteleris made
withdrawals from the parties' joint bank account in Salem, Ohio, and Mr.
Panteleris offered to reimburse her for family expenses if she provided him
with bills or receipts. There was no evidence that Ms. Panteleris had provided
Mr. Panteleris a bill or receipt that he refused to pay. Moreover, the court
observed that “[t]he record is replete with [Mr. Panteleris's] well-documented
visa difficulties and references to the poor financial situation of the
Panteleris family. It follows that the family members could ill afford airline
tickets to Australia, and the three children, one of whom was autistic and the
eldest of whom was now seven, could not safely fly unaccompanied. The district
court thus concluded that Mr. Panteleris had not failed to exercise his custody
rights during the relevant time period. The district court did not clearly err.
The Sixth Circuit pointed out
that a child's country of habitual residence is a question of fact that the
court reviews for clear error. Jenkins v. Jenkins, 569 F.3d 549, 556 (6th
Cir.2009); Robert v. Tesson, 507 F.3d 981, 995 (6th Cir.2007). Although the Convention does not define
“habitual residence,” the Court has held that a child's habitual residence is
the place where he or she has been physically present for an amount of time
sufficient for acclimatization and which has a degree of settled purpose from
the child's perspective. Robert, 507 F.3d at 998. It has established five principles to consider in
determining a child's habitual residence: First, habitual residence should not
be determined through the technical rules governing legal residence or common
law domicile. Instead, courts should look closely at the facts and
circumstances of each case. Second, because the Hague Convention is concerned
with the habitual residence of the child, the court should consider only the
child's experience in determining habitual residence. Third, this inquiry
should focus exclusively on the child's past experience. Any future plans that
the parents may have are irrelevant to its inquiry. Fourth, a person can have
only one habitual residence. Finally, a child's habitual residence is not
determined by the nationality of the child's primary care-giver. Only a change
in geography and the passage of time may combine to establish a new habitual
residence. Robert, 507 F.3d at 989
(citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993)
(“Friedrich I ”)).
In
this case, the district court considered the children's activities in
Australia, including school, social engagements, and meaningful connections to
people and places in Australia. It also considered the children's activities
and meaningful connections in the United States, but observed that it could not
accept evidence of habitual residence for dates after May 2013 because Sixth
Circuit precedent instructs courts to look back in time from the period of
wrongful retention, not forward. The district court also considered the
children's belongings that the family brought to the United States and items
left in Australia. Weighing all the evidence, the district court concluded that
Mr. Panteleris had established by a preponderance of the evidence that the
children were habitual residents of Australia at the time of the wrongful
retention.
On appeal, Ms. Panteleris argued that
the court's factual finding was clear error because a period of one year is
significant in the lives of young children and, under the Friedrich I factors,
the children had acclimatized to the United States. The Sixth Circuit held that
Ms. Panteleris's first argument reflected a difference of opinion on how to
weigh the evidence, but not clear error. Ms. Panteleris failed to establish
that the district court clearly erred in finding that, in light of all the
evidence, Australia was still the children's habitual residence from their
perspective.
The Sixth Circuit rejected Ms.
Panteleris argument that the court should consider “the subjective intent of
the parents” as an additional factor in determining a child's habitual
residence, at least with respect to young children and those with developmental
disabilities. The Court noted that it had previously considered similar
arguments. In Robert v. Tesson, 507 F.3d at 990–91, it rejected the Ninth
Circuit's approach in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), which
considers “the subjective intentions of the parents [as] all but dispositive of
a child's habitual residence.” It found the Ninth Circuit's rule “inconsistent”
with Friedrich I and “the Convention's goal of deterring parents from crossing
borders in search of a more sympathetic court” because such a rule “empowers a
future abductor to lay the foundation for an abduction by expressing
reservations over an upcoming move.”
Robert, 507 F.3d at 992. Nevertheless, it left open the possibility that
“a very young or developmentally disabled child may lack cognizance of their
surroundings sufficient to become acclimatized to a particular country or to
develop a sense of settled purpose.” However, because that case did not present
such facts, it “express[ed] no opinion on whether the habitual residence of a
child who lacks cognizance of his or her surroundings should be determined by
considering the subjective intentions of his or her parents.” It did not need
to decide whether the Pantelerises' subjective intent should be considered
because it would not change the outcome in this case under the deferential
standard of review. The district court explicitly found that even if it were to
consider the subjective intent of the parents, “the evidence submitted as to
the intent of the parents favors [Mr. Panteleris's] version that the parties
intended to stay in Ohio for one year.” Just as the district court's factual
finding of the children's habitual residence was not clear error, Ms. Panteleris did not show that the
district court's implicit credibility determination favoring Mr. Panteleris's
version was clear error in light of all the evidence.
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.
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.
Sabogal v. Velarde, 2015 WL 9906163 [D. Maryland] [Peru] [Federal & State Judicial Remedies] [Motion to find that Petitioner complied with undertakings order denied]
Motion to find that
Petitioner complied with undertakings order denied
Madrigal v Tellez, 2015 WL5174046, (WD Texas, 2015) [Necessary Expenses and Costs] [Denied] ] [Clearly inappropriate]
Rehder v Rehder, 2015 WL 4624030 [WD Washington] [Necessary Expenses and Costs] [Denied] [Clearly inappropriate]
Attorney fees denied
as clearly inappropriate where court found that the mother had “had a mistaken,
but nevertheless good faith belief that the parties had agreed that she would
take [the child] to the United States.”
Carlos Javier Escobar Villatoro v Figueredo, 2015 WL 6150769 (MD Florida) [Guatemala] [Necessary Expenses and Costs] [Granted]
Attorneys fees and
costs. Referee recommended that
necessary costs be granted in part
Pliego v Hayes, 2015 WL [WD Kentucky] [Turkey] [Necessary Expenses and Costs] [Granted]
Fees and Expenses of
$100,471.00 awarded to petitioner.
Sewald v Reisinger, 2015 WL 6964290 (MD Florida, 2015) [ Germany] [Necessary Expenses and Costs] [Granted]
Smedley v Smedley, 2015 WL 5139286 [ED North Carolina] [Germany] [Necessary Expenses and Costs] [Granted]
Warren v Ryan 2015 WL 4365489 (D.Colorado) [Australia] [Necessary Expenses and Costs] [Granted]
Petitioner’s motion for attorney fees and
costs granted in the amount of $64,984.90.
Guevera v Sota 2015 WL 9484502 (ED Tenn, 2015) [Mexico] [Federal & State Judicial Remedies] [TRO granted]
Temporary restraining
order granted prohibiting child from being removed from Courts jurisdiction.
Shafqat v Malik, 2015 WL 6739797 (D. NJ, 2015) [United kingdom] [Federal & State Judicial Remedies] [Motion for pro bono counsel]
Motion for Pro Bono
Counsel filed by pro se Respondents Shafqat Mahmood Malik, Saiqa Yusuf and
Qaiser Mahmood Malik (the “Respondents”) granted in part and denied in part.
Sanchez v Sanchez, 2015 WL 3448009 (WD Texas, 2015) [Mexico] [Federal & State Judicial Remedies] [Petition moot]
Petition denied as
moot; motion to dismiss granted.
Morais-Pierson v Pierson, 2015 WL 2365398 [ND Ohio, 2015] [Brazil] [Federal & State Judicial Remedies] [Motion for default judgment]
Motion for default judgment, upon defendants failure to appear or plead, denied without prejudice.
Karl v Cifuentes, 2015 WL 4940613 (ED Penn, 2015) [Argentina] [Federal & State Judicial Remedies] [Abstention]
Action dismissed because abstention under Younger v Harris, 401 US 37, 44 (1971) is appropriate in light of ongoing state court custody proceeding.
Garcia v Pinelo , 2015 WL 4910654 (ND Illinois, 2015) [Mexico] [Federal & State Judicial Remedies] [Summary judgment ]
Summary judgment granted in part and denied in part.
Monday, December 28, 2015
Tann v Bennett, 807 F.3d 51 (2d Cir 2015)[United Kingdom] [Federal and State Judicial Remedies] [Appeal]
In Tann v Bennett, 807 F.3d 51 (2d Cir 2015) Petitioner Lisa Tann appealed from the denial of her petition filed under the International Child Abduction Remedies Act . Tann, a citizen of the United Kingdom who resided in Northern Ireland, alleged that Respondent George Bennett wrongfully abducted their son, J.D., to the United States. The district court denied Tann's petition, finding that even though Northern Ireland was J.D.'s habitual residence, the child's preference for staying in the United States excepted him from being returned. Tann appealed the district court's judgment to this Court. While that appeal was pending, the Family Court of Orleans County, State of New York, granted full custody to George Bennett. The Bennetts moved to dismiss Tann's appeal as moot, on the grounds that the Court can no longer grant effective relief. The Second Circuit denied the motion. It observed that a case is moot when the issues presented are no longer ‘live’ or the parties ‘lack a legally cognizable interest in the outcome.’ ” Blackwelder v. Safnauer, 866 F.2d 548, 551 (2d Cir.1989) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). It rejected the Bennetts argument that the appeal was moot because the New York court's custody determination resolved the parties' dispute such that the Second Circuit could no longer grant Tann's requested relief. It pointed out that the Hague Convention provides that “[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” Hague Convention, art. 17.In her appeal Tann contended that the district court erred in holding that J.D. should continue to reside in the United States and that the New York courts are thereby authorized to resolve the underlying custody dispute on the merits. The court pointed out that if it reversed the district court's judgment and find that Northern Ireland was J.D.'s habitual residence and no exception applied to prevent his return, J.D. could be returned to Northern Ireland. In that event, the Northern Ireland courts would have jurisdiction to determine the merits of the underlying custody dispute. Holding that Tann's petition was moot because the Bennetts received a favorable custody determination in a potentially friendlier New York court could encourage the jurisdictional gerrymandering that the Hague Convention was designed to prevent.
Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015)[Petition denied] [Greece] [Consent] [Age and Maturity] [Video testimony] [in camera]
In Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015) Petitioner Nikolaos Adamis filed a verified petition, for the return of his minor son, D.A., against D.A.'s mother, who was living with D.A. in Douglaston, New York at the time. Because Adamis was in Greece for the entire proceeding, he testified and participated in the proceeding via video conference, as did two other witnesses located in Greece. The Court interviewed D.A. in camera, but on record and in the presence of both parties' counsel, to determine his wishes regarding his place of residence. At the conclusion of the trial, the Court denied the petition for return.
D.A. was the son of Petitioner and Respondent. At the time of the trial, D.A. was 12 years old. Petitioner was a U.S. and Greek citizen who was living in the United States in the 1990s. Respondent was a Canadian citizen of Greek heritage who moved to New York with her family in 1968. On September 2, 2001, Petitioner and Respondent wed in Greece. After the events of 9/11, which occurred only days later, Petitioner decided that they would relocate, with Toula, he child from a previous marriage, to Greece. Petitioner and Respondent moved to Greece for a "better lifestyle." D.A. was born in Greece in October 2002, and lived there continuously until he was brought to the United States by his mother in December 2013. Discussions about moving to the United States began when D.A. was in fourth grade, prompted by the difficulties he was facing in school. After D.A. told his mother he could no longer handle his school situation, she told Petitioner that they had to move to the United States for D.A.'s sake. Petitioner responded, Okay, okay, whatever makes you happy." It took time, however, to raise the money to move to the United States. Thereafter, D.A.'s mother repeatedly raised the topic of moving with Petitioner, and he told her several times that they could go. In the summer of 2013, D.A.'s mother began planning the move in earnest. She told D.A. that they were going to move, and began packing their household items and personal belongings to be shipped to the United States. D.A. spoke to his father directly about the move, saying that there were things that he (D.A.) could not do in Greece and that he wanted to move. D.A.'s father simply responded, "okay, okay." Many people in Porto Rafti knew about the move, including D.A.'s school, his classmates and their families, the family's neighbors, and Respondent's friends and co-workers. In fact, her co-workers performed a farewell song for D.A.'s family at the annual Thanksgiving dinner shortly before they moved, and D.A.'s school class also held a farewell party for him. On December 13, 2013, Respondent and D.A. left Porto Rafti to travel to the United States. By that time, the house was almost empty, except for furniture that did not belong to the family, Petitioner's personal belongings, and unwanted personal items D.A. and Respondent left behind. Petitioner was at the Porto Rafti home that day, having come home the night before so that he could say goodbye. After Respondent and D.A. left for the United States in December 2013, Petitioner changed his mind about letting D.A. live in the United States. 14 On January 6, 2013, when Respondent called Petitioner, he asked her when they were returning to Greece. Respondent told Petitioner that they were not returning to Greece and reminded him that he knew that they were moving, that they had spoken about the move many times, and that he had seen them packing their belongings. On January 22, 2014, Respondent went to the Greek Ministry of Justice, and filed a complaint pursuant to Article 13 of the Hague Convention, seeking the return of D.A. to Greece.
During the trial, the Court interviewed D.A. in the presence of Petitioner's and Respondent's counsel. The Court's assessment of D.A. was that he was an unusually poised and mature adolescent, who was comfortable with adults, and engaged readily and openly with the Court. The Court found D.A. perceptive, bright, forthright, rational, friendly, credible, and serious about his education. His answers and demeanor evinced clarity about his wishes and the reasons for them, and complete awareness of the consequences of the court proceeding. D.A. wanted to "stay in America." He believed that "America's definitely better to live all year around[]" because his "whole family is here…. There's a better school here, and I just like it overall here." Since arriving in the United States, D.A. had been living in an apartment with his mother and sister in a building where his mother's aunt and uncle also live. D.A. and his sister each had their own bedroom. D.A. was very close to his sister, Toula, and would not want to return to Greece if she remained in the United States, which was her current plan.
The parties stipulated to Petitioner's prima facie case for wrongful removal. They agreed that (1) D.A.'s habitual residence at the time of his removal was Greece, and (2) Petitioner had custodial rights pursuant to Greek law. It found that Petitioner consented to D.A. moving with his mother and sister from Greece to the United States on December 13, 2013. This evidence included the testimony of Respondent, Toula and D.A., as corroborated by December 2013 audio recording of Petitioner stating that he had given permission for them to move. The Court found that Petitioner consented to Respondent's removal of D.A. from Greece on December 13, 2013, and his retention in the United States thereafter. See In re Kim, 404 F. Supp. 2d at 520-21 (determining, based on the credibility of the witnesses, that the respondent established by a preponderance of the evidence that the petitioner consented to the child's move).
The Court found that the age and maturity exception provided another basis for refusing to order D.A.'s return to Greece and that D.A. was sufficiently mature to object to his return and has credibly done so. The Court's finding was based largely on its interview of D.A. The Court found D.A. to be an exceptionally bright, thoughtful, sociable and well-adjusted adolescent. The Court also found that D.A.'s reasons for wanting to remain in the United States were rational and well-considered: (1) superior educational opportunities, especially in D.A.'s areas of interest, i.e., science and computer science; (2) the chance to participate in a wide range of extracurricular activities; (3) an abundance of relatives with whom he is very close; and (4) more and better friendships. The sincerity and rationality of D.A.'s motivations and desires was corroborated by the testimony of D.A.'s family members, who credibly testified about how much fuller and happier D.A.'s life has become since moving to the United States.
Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) [Mexico][Habitual Residence]
In Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) Daniel Scott Woodman appealed the district court's order granting Elizabeth Fuentes-Rangel's petition for return of their then-5-year-old child, NRW, to Mexico. On appeal Woodman argued that the district court erred as a matter of law by determining NRW's habitual residence based on the facts and circumstances immediately prior to Woodman's retention. According to Woodman, the determination of habitual residence in the prima facie case for the return of a minor child under the Convention and ICARA is made based on the facts and circumstances at the time of the hearing or trial. The Eleventh Circuit held that Woodman's interpretation of the law was incorrect. To establish a prima facie case for return of a child, the petitioner must establish by a preponderance of the evidence the child has been "wrongfully removed or retained within the meaning of the Convention."22 U.S.C. s 9003(e)(1)(A). Article 3 of the Convention, in turn, provides a retention is "wrongful" if, among other things, "it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention." Thus, a threshold question in deciding a case under the Convention is, what was the child's habitual residence "immediately before the removal or retention."?. The district court's interpretation of the law was correct.
Garcia v. Pinelo, --- F.3d ---- (2015), 2015 WL 9300618 (7th Cir., 2015)[Mexico] [Rights of Custody] [Patria potestas][mature child exception]
In Garcia v. Pinelo, --- F.3d ---- (2015), 2015 WL 9300618 (7th Cir., 2015) Raul Salazar Garcia and Emely Galvan Pinelo, were both Mexican citizens. Their child D.S., was born in Monterrey, Nuevo León, Mexico in 2002. In 2006, a Nuevo León court entered a custody order recognizing Gal-van and Salazar as D.S.’s parents. The court awarded physical custody of D.S. to Galvan and gave Salazar weekly visitation rights. In late 2012, Galvan requested Salazar’s assistance in obtaining a passport and visa for D.S. to visit the United States. She intended to visit relatives in Texas and then to take D.S. to either Disney World or Disneyland. Before that trip took place, however, she became engaged to an American citizen named Rogelio Hernandez, whom she married in July 2013. Around this time, she decided that she wanted to move with D.S. to the United States. While Galvan had told Salazar about her initial plans to travel with D.S. to the United States as a tourist, she did not advise him of her change in plans. Salazar became suspicious, however, when he saw news of Galvan’s engagement on Facebook. That led to a meeting among Galvan, Salazar, and D.S. on July 30, 2013, at a Starbucks in Monterrey. Galvan and Salazar agreed then that D.S. would move to Chicago with his mother and stay there for one school year. What was not clear was what was to happen at the end of that year. Salazar recalled that the parties agreed that D.S.’s wishes would be dispositive, and Galvan thought that the two parents simply agreed to conduct further discussions. Ultimately Salzar filed a petition for return with the Mexican Central Authority who transferred the petition to the United States Department of State, which filed it in the district court on December 2, 2014. . The district court granted the petition. The Seventh Circuit affirmed.
The Seventh Circuit held that (1) the Hague Convention is no exception to the general rule, reflected in Federal Rule of Civil Procedure 44.1, that an issue about foreign law is a question of law, not fact, for purposes of litigation in federal court; (2) that Salazar had the necessary custodial right (referred to in Mexico either by its Latin name, patria potestas, or occasionally by its Spanish name, patria potestad ) over D.S. at the time when Galvan refused to permit his return to Mexico. Because D.S.’s habitual residence was Mexico, Galvan’s retention of D.S. was wrongful under the Convention; and (3) the district court had adequate reason to refuse to defer to D.S.’s indications that he prefers to stay in the United States. .
The Court noted that the district court appointed a guardian ad litem for D.S. At first, D.S. did not indicate a preference for either Mexico or Chicago. Over time, however, his views evolved. In late April 2015, D.S. told his guardian that he wanted to stay in Chicago. The district court conducted an in-camera hearing with D.S.,by then 13 years old, to ascertain his views. D.S. told the judge that he preferred to stay in Chicago because it had better schools and opportunities, was safer, and he did not want his mother to be forced to pay Salazar’s costs and fees. He indicated that he wanted to finish eighth grade in Chicago, but that if he were not admitted to a good high school after eighth grade, he might return to Mexico. While he stated a preference for remaining in Chicago, he did not object to returning to Mexico. At some point while all this was happening, Galvan’s had overstayed their tourist visas and had no other basis for staying in the United States. This meant that she probably could not travel outside the United States, even to visit D.S. This news prompted Galvan to request a second in-camera hearing between the judge and D.S. She believed her immigration difficulties would change D.S.’s mind: since she would be unable to visit him in Mexico, it would be very difficult for D.S. to see his mother, possibly for a very long time. The district court obliged. During the second hearing, D.S. more clearly objected to returning to Mexico. While he gave several reasons for doing so, he also indicated that he would not object to returning if Galvan’s immigration situation were quickly resolved and she could travel freely between the United States and Mexico.
After a hearing the district court granted summary judgment for Salazar. It found as a matter of fact that when Salazar and Galvan met in the Monterrey Starbucks in July 2013, they agreed that it would be D.S.’s decision whether to remain in Chicago after one school year had passed. It also found that Mexico was D.S.’s country of habitual residence. Applying the law of the Mexican state of Nuevo León, the court found that Salazar had the right of patria potestas over D.S., and that this qualified as a “right of custody” for purposes of the Convention. This meant that as of the summer of 2014 D.S. was wrongfully retained. The court found that D.S. had eventually objected to returning to Mexico, and that he was sufficiently mature. It nonetheless declined to give effect to D.S.’s wishes, because it determined that doing so would not serve the purposes of the Convention. It thus ordered D.S. to be returned to Mexico.
The Seventh Circuit observed that the doctrine of patria potestas is a gender-neutral legal regime that regulates the relationship between parents (or parent-like figures) and their children. The court has recognized patria potestas as a right of custody” within the meaning of the Convention. Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir.2008). Galvin denied that Salazar has such a right on two bases. Primarily, she asserted that he never possessed the patria potestas right over D.S.;and that any patria potestas right he may have held was extinguished by a 2006 custody agreement. The Court rejected both arguments. The Court observed that some courts have held that patria potestas may be extinguished by a custody agreement. See, e.g., Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir.2002), abrogated by Abbott, 560 U.S. at 10, 22; see also Avila, 538 F.3d at 587. None of these decisions, however, cite any Mexican law for this proposition, nor did if find any basis for it in the Civil Code for Nuevo León. The Court held that patria potestas cannot be lost through a custody agreement. Even if it were theoretically possible for a parent to lose patria potestas through a custody agreement, this custody agreement would not suffice.
The Court pointed out that the district court had the discretion to refuse to return D.S. to Mexico if Galvan proved by a preponderance of the evidence that D.S. “object[ed] to being returned and ha[d] attained an age and degree of maturity at which it is appropriate to take account of [his] views.” Hague Convention art. 13, T.I.A.S. No. 11670 (mature-child exception). The district court found that D.S. was sufficiently mature to invoke the exception, and we see nothing in the record to cast doubt on that assessment. The district court also found that D.S. eventually stated his objection to being returned to Mexico during the second in-camera hearing. Both formal prerequisites for this exception were therefore satisfied. The Seventh Circuit held that nonetheless, the exception did not automatically apply in such a case, and it retained discretion to follow the rule rather than the exception. A district court retains discretion not to apply an exception, and that its decision either way is reviewed only for abuse of discretion. Here, the district court decided that it would be inconsistent with the aims of the Convention to refuse to repatriate D.S. It noted D.S.’s ambivalence before he finally objected to returning to Mexico, and the fact that D.S.’s objection was founded “almost entirely” on his belief that his mother would not be able to travel to and from Mexico because of her immigration status. The court was particularly struck by the fact that D.S. stated that he would not object to return if his mother’s travel to and from Mexico were not impeded, based on the assumption that she could obtain the proper visa within six months. The court’s greatest concern was it believed that the application of the mature-child exception in this case would reward Galvan for problems of her own making. Her immigration status was unstable because she (and D.S.) overstayed their tourist visas. It reasoned that allowing D.S. to stay in the United States would allow Galvan to benefit from her own violations of the Convention and U.S. immigration laws. The district court was concerned that exercising the exception in this case would set a precedent that allows a parent to prevent the return of a child by problems of his or her own making. It reasoned that an inquiry into a litigant’s subjective intentions is a difficult endeavor, and one potentially subject to abuse by savvy litigants. It would be difficult for a court to smoke out bad faith in these situations. Neither the Convention nor ICARA forbids the district court to take these concerns into account when it makes its ultimate decision.
Ortiz v. Martinez, --- F.3d ---- (7th Cir., 2015) 2015 WL 3650649 [Mexico][Petition denied][Grave risk of harm]
In Ortiz v. Martinez, --- F.3d ---- (7th Cir., 2015) 2015 WL 3650649 Mr. Ortiz and Ms. Martinez were the parents of two minor children, A.O., a seven-year-old girl, and L.O, a sixteen-year-old boy. Prior to August 2011, Mr. Ortiz and Ms. Martinez lived together with their two children in Mexico City. In August 2011, the couple and their two children traveled to Chicago to visit Ms. Martinez's parents and siblings, all of whom lived in the Chicago area. The couple purchased round-trip tickets, with Mr. Ortiz scheduled to return to Mexico on August 13 and Ms. Martinez and the children scheduled to return on August 20. Mr. Ortiz returned to Mexico on his scheduled departure date. Ms. Martinez and the children, however, did not. When contacted by Mr. Ortiz, Ms. Martinez informed him that she and the children would not be returning to Mexico. She accused Mr. Ortiz of sexually molesting A.O. and told him that she was keeping the children in the United States for A.O.'s safety.
Mr. Ortiz filed action in the district court in May 2012 .Because the case involved allegations of sexual abuse, attorneys for both parties agreed that the court should appoint a psychologist to evaluate the children. In May 2013, the district court held a hearing. The court conducted in camera interviews with L.O. and A.O. and received the experts report and testimony. During the hearing, the district court heard substantial evidence indicating that Mr. Ortiz had sexually abused A.O. Ms. Martinez testified that she had witnessed Mr. Ortiz inappropriately touching their daughter in her vaginal area and had frequently observed signs of such abuse. A.O. corroborated her testimony during her in camera interview, explaining, with words and gestures, how her father had put his finger in her vaginal area while the two were showering. Dr. Machabanski further substantiated these allegations. At trial, Dr. Machabanski testified that A.O. exhibited behavior consistent with having suffered sexual abuse. As detailed in his report, A.O. also exhibited strong negative emotions toward her father through her playtime behavior. Based on these and other factors, Dr. Machabanski testified that, in his “professional opinion, [A.O.] was telling the truth.”5In August 2013, the district court issued a written order denying Mr. Ortiz's petition. The court determined that Ms. Martinez had presented sufficient evidence to establish the “grave risk” defense under Article 13(b). The court credited Ms. Martinez's evidence that Mr. Ortiz previously had molested A.O. and, based on that abuse, determined that A.O. would face a grave risk of similar harm by her father if returned to Mexico. The district court independently found that L.O. was old enough and mature enough such that his desire to remain in the United States should be credited. Based on these findings, the district court denied Mr. Ortiz's petition. The Seventh Circuit affirmed. It rejected Mr. Ortiz contention that the district court erred in finding that he had sexually abused A.O. and thus that she faced a grave risk of harm if returned to Mexico. It observed that the Convention's mandatory-return rule is subject to the affirmative defense of grave risk: [T]he judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—... b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention, art. 13(b). Sexual abuse constitutes a “grave risk” of physical or psychological harm. Similarly, sexual abuse, particularly by a custodial parent, is a well-recognized example of an “intolerable situation” within the meaning of this exception. The party opposing the return of a child has the burden of establishing this exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A).
Mr. Ortiz contended that the finding was based on unreliable evidence and thus was clearly erroneous. The Circuit Court of Appeals found that the district court explicitly acknowledged that Ms. Martinez had to meet the demanding “clear and convincing” standard. The evidence of sexual abuse was substantial and sufficient to meet that standard. During her testimony, Ms. Martinez described, in detail, how she had seen Mr. Ortiz molesting A.O. in the shower and how, on a separate occasion, she had overheard A.O. tell her father, while the two were showering, not to touch her private areas anymore. This testimony was consistent with A.O.'s description of events during her in camera interview. Finally, in his expert testimony and report, Dr. Machabanski opined (1) that A.O. exhibited behavior consistent with having suffered sexual abuse; (2) that she exhibited strong negative emotions toward her father through her playtime behavior; and (3) that, in his “professional opinion, she was telling the truth.”
The Seventh Circuit found that the district court did not commit clear error. As the Supreme Court has noted, the clear error standard “demands even greater deference to” a district court's factual findings “[w]hen [those] findings are based on determinations regarding the credibility of witnesses.” Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). As a practical matter, this means that such findings “can virtually never be clear error,” unless premised on testimony that is “internally inconsistent,” facially implausible, or “contradicted by extrinsic evidence.” In other words, a district court's credibility findings are “binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.” Discrepancies arising from impeachment, inconsistent prior statements, or the existence of a motive do not render witness testimony legally incredible.” None of Mr. Ortiz's contentions were sufficient to render the evidence credited by the district court “legally incredible.” Consequently, it concluded that the district court did not clearly err in finding that Mr. Ortiz had sexually abused A.O. Because Ms. Martinez's presented sufficient evidence to establish the “grave risk” exception, the district court properly denied Mr. Ortiz's petition.
Wednesday, May 20, 2015
Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) [Canada] [Federal & State Judicial Remedies]
In Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) the district court dismissed the Hague Petition for lack of subject matter jurisdiction. The Petitioner alleged he and respondent were married on July 16, 2010, in New York City. Petitioner is a United States citizen, and respondent became a legal resident of the United States after the parties were married. According to petitioner, in the fall of 2012, he and respondent were preparing for the birth of their first child. However, shortly before respondent was expected to give birth, she left the United States and journeyed to her parents' home in Ontario, Canada. On October 16, 2012, the parties' son, R.R., was born in Ontario. R.R. has lived in Canada with respondent since his birth. Petitioner alleged respondent wrongfully removed R.R. from the United States, thereby breaching his custodial rights in violation of the Hague Convention, and asked the Court to enter an order permitting him rights of access, or rights of visitation, to R.R.
The Court observed that ICARA § 9003(b) states: 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. Thus, when a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith. Abbott v. Abbott, 560 U.S. 1, 9 (2010). Petitioner sought an order granting him visitation rights. However, petitioner alleged R.R. was abducted to Canada, where he was born and had since resided with respondent. As such, the Hague Convention and ICARA direct petitioner to commence his action in Canada. Hofmann v. Sender, 716 F.3d 282, 290 (2d Cir.2013) ("ICARA provides that any person seeking to initiate judicial proceedings under the Convention for ... securing the effective exercise of rights of access to a child may do so by commencing a civil action in a state or federal court in the place where the child is located at the time the petition is filed."
The district court observed that in Rein v. Rein, 1996 WL 273993 (S.D.N.Y. May 23, 1996), the court faced the same issue and found it lacked jurisdiction to hear the petitioner's claim. There, the petitioner alleged his daughter was a habitual resident of France wrongfully removed to England, and sought an order restoring his parental rights. The court found the petitioner had not alleged his daughter "was abducted to the United States," and therefore, she was not located in a place where it could "exercise jurisdiction over her." Because the petitioner's daughter was located in England, the court reasoned, any petition pursuant to the Hague Convention had to be brought there. The same reasoning applied here. Petitioner did not allege R.R. was abducted to the United States. R.R. was allegedly being held in Canada. Accordingly, any petition pursuant to the Hague Convention had to be brought there. This Court held that it could not issue an order granting petitioner visitation rights because, R.R. was not in the United States. The Court expressed no opinion regarding an individual's right to bring a Hague Convention petition when the child allegedly abducted was not yet born. Respondents request for an award of attorney's fees and costs pursuant to ICARA § 9007 was denied as that statute only authorizes an award of attorney's fees and costs for a prevailing petitioner.
Monday, May 18, 2015
Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) [Spain] [Now Settled]
In Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) Petitioner-appellant Inocencia Herrera Taveras appealed from an order of the district court denying her petition for return of her child, L.A.H., to Spain. Taveras argued that the district court erred in determining that she had filed her petition more than a year after L.A.H. was first wrongfully retained in the United States by her father, respondent-appellee Jose Alonzo Morales. The district court ruled that Taveras's petition was filed more than a year after the wrongful retention of L.A.H. began, that L.A.H. was "now settled" in the United States, and that it was in the best interests of L.A.H. that she be allowed to remain here, and therefore declined to order that L.A.H. be returned to Spain. Taveras did not challenge on appeal the district court's finding that L.A.H. was settled in the United States, or its exercise of its discretion not to return her to Spain. She argued only that the district court erred in determining when L.A.H. was first wrongfully retained, that she filed her petition within a year of the correct date, and that the "now settled" defense was therefore not
available to Morales.
The Court of Appeals pointed out that the significance of that determination was that under the Hague Convention, if Taveras petitioned for the return of L.A.H. within a year after the wrongful retention of L.A.H. began, the district court was mandated to return the child to Spain in the absence of certain narrow affirmative defenses. If the petition was not filed within that period, and if L.A.H. was "now settled" in the United States, the district court had discretion whether to order her return. See Hague Convention art. 12.
The Court indicated that it reviews the district court's interpretation of the Hague Convention de novo, and its factual determinations under a deferential "clearly erroneous" standard, accepting the district court's findings of fact "unless we have a definite and firm conviction that a mistake has been committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013).
Taveras argued that the district court applied the wrong legal standard in
determining when the wrongful retention began, because it should have required a
"clear and unequivocal" communication by Taveras to Morales that she did not
consent to L.A.H.'s continued stay in the United States as a prerequisite to
finding that Morales's retention of L.A.H. had become wrongful. The Court of Appeals held that it need not decide whether the formulation urged by Taveras was the
correct standard for determining when wrongful retention begins. Assuming arguendo that such a standard applied, the district court determined that it was met here, finding that Taveras had "made her demand [for the return of L.A.H.] sufficiently
clear to [Morales]" by the end of summer 2012, and that Morales's retention of
L.A.H. beyond that period was therefore wrongful. Acknowledging that where "one parent fails to inform the other parent that she does not consent to the child's stay beyond a particular date, it would be difficult to say that retention beyond that date is wrongful," the district court distinguished the situation at bar as "not such a case."
The Court of Appeals affirmed. It held that the district courts finding was far from clearly erroneous. The district court based it on: (1) Taveras's testimony that she spoke to Morales "[m]any a time during the months of August and September [2012]," and (2) her "unequivocal[]" testimony, that she did not consent to L.A.H.'s stay beyond the end of summer 2012. The court also referenced Morales's testimony that, during that same period, Taveras "continued insisting" that he send L.A.H. back to her. It saw no reason to disturb the court's finding in the face of that evidence.
Saturday, May 16, 2015
Gee v. Hendroffe, 2015 WL 2151885 (S.D.Tex.)[South Africa] [Costs and Expenses]
In Gee v. Hendroffe, 2015 WL 2151885 (S.D.Tex.) Petitioner moved for Attorney's Fees and Costs after the Court ordered the return of Petitioner's children to South Africa, and ordered that Respondent pay "all costs and fees incurred by Petitioner to recover the children as required under 42 U.S.C. Sec. 11607. In his motion, Petitioner requested $14,111.00 for "airline tickets, hotel, car rental and
food costs and expenses." In support, Petitioner submitted airplane, car rental, and hotel (or "airbnb") receipts totaling $12,743,84. The Court pointed out that insofar as the $1,367.16 discrepancy between requested and documented non-legal fees included food costs, Petitioner had not submitted any receipts for food costs. The court cited In re Application of Hirts, CIV.A.03-CV-03156, 2004 WL 1588227, at *1 (E.D.Pa. July 13, 2004), aff'd sub nom. Hirts v. Hirts, 152 Fed. Appx. 137 (3d Cir.2005) (granting airfare, hotel costs, and car rentals but holding "Petitioner's costs incurred in caring for himself and his children are in no way 'related to the return of the child[ren],' as required by 42 U.S.C. § 11607(b). Petitioner would have incurred the costs of feeding, clothing and otherwise supporting his children and himself whether his children were in the United States or Germany.") Respondent was directed to pay $12,743.84 for airline tickets, hotel, and car rental expenses with interest at .11 percent per year compounded annually from the date of the order.
Petitioner requested $39,727.80 for "legal fees, costs and expenses." Petitioner submitted legal bills totaling $39,727.44. Petitioner alleged "total legal fees, costs and expenses" were $57,829.80, but only requested $53,838 . Petitioner only submitted receipts for $52,471.28. The Court observed that the Fifth Circuit had examined the legal fees charged by Petitioner's counsel, Laura Dale, in a similar case. Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014). The Fifth Circuit affirmed the district court's finding Dale's rates to be reasonable but her time spent on the case to be excessive. The court found that here Ms. Dale billed $450 per hour for 1.5 hours; an associate, $250 for 41.25 hours; and a paralegal, $150 for 15.25 hours; minus a 25% courtesy discount on all fees. The associate and counsel of record, Ashley Tomlinson, one of the associates in Salazar, filed a declaration stating: "I am very familiar with the hourly rate that attorneys at my level of practice charge in matters of this nature. At least one third of my practice involves multi-jurisdictional conflicts, particularly actions brought under The Hague Convention... in which I specialize. This case included a show cause hearing and an evidentiary hearing, the latter lasting 5.5 hours. Billing statements provided by Petitioner include similar detail as the ones submitted in Salazar, including entries for communication with client or co-counsel that do not indicate the subject of the communication. Costs include "Color Copies, 500.00."
Petitioner also submitted a legal bill from counsel in Las Vegas totaling $27,892.21, related to a prior Hague Convention action in the U.S. District Court in Nevada. The bill included 88.8 hours at hourly rates of $150, $250, and $325, without explanation of who was doing the work. The bill also included a lump sum paid to another attorney without any explanation: "Cal Potter, Esq., 2000.00." The Nevada action included three court appearances totaling two hours and thirty-eight minutes and eight motions totaling 73 pages excluding exhibits. Respondent Hendroffe and the children failed to appear at the Nevada hearings in violation of multiple orders. The first Order gave Respondent over a month to prepare her travel plans, yet she waited until one week before the hearing to request a telephonic appearance. Respondent traveled to at least three different continents during the time relevant to this litigation. Respondent fled with the children to Malaysia. The case was then dismissed for lack of personal jurisdiction. Gee v. Hendroffe, No. 2:13-cv-01582-JCM-NJK. During the final hearing in Nevada, Petitioner informed the court he would seek attorney's fees and costs, but these were not available under Section 11607 in the absence of an order to return the children. 42 U.S.C.§ 11607(b) ("[A]ny Court ordering the return of the children... shall order the Respondent to pay necessary expenses...."). The district court held that although Petitioner's attorney fees in Nevada arose in a different proceeding, they were "necessary expenses incurred by or on behalf of the Petitioner including court costs [and] legal fees" in obtaining an order to return the children.
Hendroffe did not file a response to the motion and did not establish
that an attorney fee award would be "clearly inappropriate." 42 U.S.C.A. § 11607. The court observed that courts exercise wide discretion in reducing fee awards under Section 11607 based on equitable considerations such as the respondent's ability to pay. Citing Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014) (affirming reduction of "almost fifty percent"); Whallon v. Lynn, 356 F.3d 138, 139 (1st Cir.2004) (65%); Rydder v. Rydder' 49 F.3d 369, 373-374 (8 th Cir.1995) (46%, resulting in fees of $10,000). Given Hendroffe's failure to provide documentation of financial status or to respond at all and her flouting of court orders, the Court found that an equitable reduction was not warranted and that legal expenses and costs requested were reasonable and necessary, with the exception of the $1,367.16 undocumented non-legal expenses and an unexplained $2,000 payment by Kelleher & Kelleher to Cal Potter, Esq.
Respondent was directed to pay $11,835.23 to Laura Dale & Associates, P.C. ; and $25,892.21 to petitioner for attorney's fees, expenses and costs paid to his Nevada counsel Kelleher & Kelleher all with interest at .11 percent per year compounded annually from the date of the order.
Friday, May 1, 2015
Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.)
[Mexico] [Federal & State Judicial Remedies][Temporary Restraining Order]
In Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.) Petitioner filed a Petition Under the Hague Convention Seeking Return of the parties Child to Petitioner in Mexico along with a Motion for an Ex Parte Temporary Restraining Order
According to the petition Petitioner was L.D.M.'s mother, and Respondent his father. They were both citizens of Mexico having been married in Oaxaca, Mexico. Petitioner and Respondent had two other children, both of whom resided with Petitioner in Mexico. Petitioner and Respondent moved to the United States from Mexico in 2004, along with their oldest child. Petitioner gave birth to L.D.M. in Statesboro, Georgia, on October 15, 2006. In May 2010, Petitioner and Respondent agreed that Petitioner would return to Mexico with L.D.M. On May 26, 2010 Respondent signed a notarized statement acknowledging Petitioner's return to Mexico with L.D.M. In June 2010, Petitioner, L.D.M., and her other two children went to Mexico. Respondent stayed in the United States, having promised to send money to his family and to return to Mexico within one year. Respondent never returned to Mexico, and stopped contacting Petitioner or sending any financial support soon after Petitioner and her children arrived in Mexico. From June 9, 2010 until March 15, 2014, L.D.M. resided continuously with Petitioner at their residence in Mexico. During this time, Petitioner provided financial and other support for L .D.M. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him in the United States. Petitioner agreed to let L.D.M. visit his father. At that time, L.D.M. was continuously enrolled in a primary school in Mexico. On March 15, 2014, L.D.M. flew from Mexico to the United States. In April 2014, Respondent asked Petitioner if L.D.M. could stay with him in the United States until the end of the school year. In June, 2014, Petitioner asked Respondent to return L.D.M. to Mexico so that L.D.M. could begin his next school term. Respondent refused to return L.D.M. to Mexico. Despite repeated requests to have L.D.M. returned to Mexico, Respondent has not returned L.D.M. to Mexico. Petitioner believed that L.D.M. was currently residing under the care of Respondent, his girlfriend, or his sister in Statesboro, Georgia, and that Respondent was not a citizen of the United States and was not lawfully present in the United States. Petitioner filed the petition on April 16, 2015.
The district court observed that Injunctive relief of the nature sought by Petitioner "is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking such injunctive relief must make four showings: "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."
The court found that Petitioner had shown a likelihood of success. Petitioner had shown that she had custody rights over L.D.M., and was exercising those rights at the time of his retention in Statesboro, because L.D.M. had resided continuously with her and his siblings in Mexico from June 9, 2010 until March 15, 2014 (Petition 2 19) and Petitioner has provided L.D.M.'s financial support for most or all of his life. Petitioner had also shown through her complaint that Respondent retained L.D.M. in Statesboro in violation of Petitioner's custody rights by first agreeing to keep L.D.M. only until the end of the 2014 school year , but then refusing to return L.D.M. to Mexico after the school year had ended. Because Petitioner had shown that she held and was exercising rights of custody over L.D.M. at the time he was wrongfully retained by Respondent in Statesboro, Georgia, Petitioner had shown that she had a likely success on the merits of her Petition under the Hague Convention.
The court stated that before the Court may issue an injunction, the Plaintiff must show that irreparable harm is not merely possible, but likely. Winter, 555 U.S. at 22.
"An injury is 'irreparable' only if it cannot be undone through monetary remedies."
United States v. Jenkins, 714 F.Supp.2d 1213, 1221 (S.D.Ga.2008). Petitioner alleged that Respondent, a citizen of Mexico, was not lawfully present in the United States. Because Respondent was not lawfully residing in the United States, it was likely that
an Order to appear in federal court for a full hearing on Plaintiff's motion for a
preliminary injunction will incentivize Respondent to flee the Court's jurisdiction with
L.D.M. If Respondent were to remove L.D.M. from the Court's jurisdiction, Petitioner
would be denied her opportunity to seek L.D .M.'s return to Mexico under the Hague
Convention. The likely harm to Petitioner, then, was exceedingly high, as she may not be able to continue a relationship with her son absent an injunction. Furthermore, an ex parte Order, issued without notice to Respondent, was appropriate under these circumstances due to the nature of the irreparable harm that Petitioner feared. Because there was a risk that Respondent may flee the Court's jurisdiction with L.D .M. when he learned of Petitioner's Petition under the Hague Convention, it was proper for the Court to grant Petitioner's request for the temporary restraining order rather than require Petitioner to notify Respondent of her Petition without an enforceable injunction in place at the time of such notification. Therefore, Plaintiff had shown that irreparable harm will likely ensue if the Court does not issue a temporary restraining order.
The Court weighed the equities and found that several equitable considerations weigh in Petitioner's favor. Petitioner had certain custody rights over L.D.M. under the laws of Mexico. The provisions of the Hague Convention and the ICARA were the only legal recourse available to her under the present circumstances, where her son had been wrongfully retained in Statesboro, Georgia in violation of her custody rights. If Respondent were to be notified of Petitioner's Petition without a legally enforceable order enjoining him from removing L.D.M. from the Court's jurisdiction, Petitioner's only available recourse for the return of her son would be thwarted. The stakes for Petitioner, then, were high. Very few equitable factors weighed in favor of Respondent. The temporary nature of the injunction would not greatly inhibit his rights or ability to travel, as the requested injunction is limited to keeping L.D.M. within this Court's jurisdiction for less than two weeks. The requested injunction would present little, if any, inconvenience or harm to Respondent. Upon weighing the above factors, the Court concluded that the balance of the equities favored Petitioner insofar as the court considered her request for an ex parte temporary restraining order.
The Court found that the public has an interest in seeing the custody rights of parents residing in other nations enforced in the United States' courts through the Hague Convention and ICARA. The Court concluded that the public interest in granting a temporary restraining order favored Petitioner.
The court granted Petitioner's request for a temporary restraining
order. The Court enjoined Respondent from allowing L.D.M. to be removed from the Southern District of Georgia pending a hearing on Petitioner's request for a preliminary injunction and was directed to bring to the preliminary hearing on May 6 any passports in his and/or L.D.M.'s name. It directed that pursuant to Federal Rule of Civil Procedure 65(c), the Petitioner must post bond with the Clerk of the U.S. District Court in the amount of $1,000.
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