Hernandez v Pena, --- F.3d ---, 2016 WL 1719955 (5th Cir.,2016) [Mexico] [now settled] [Petition granted]

In Hernandez v Pena, --- F.3d ---, 2016 WL 1719955 (5th Cir.,2016) six-year-old D.A.P.G. was abducted from his home in Honduras and brought illegally into the United States by his mother Reina Leticia Garcia Peña. Hernandez, filed his return petition two months outside of the one-year period in Article 12 of the Convention, allowing the district court to consider the Convention’s defense that the child is well-settled in his new environment and therefore should not be returned. The district court denied Hernandez’s petition, concluding that D.A.P.G. was well-settled in his current community The Fifth Circuit concluded that the district court erred in its application of this defense. It vacated the district court’s order and granted the petition.
  Pranklin Pleites Hernandez and Reina Leticia Garcia Peña, both Honduran citizens, were the parents of D.A.P.G, who was born in Honduras on September 17, 2009, and grew up in the town of San Antonio, Copán. In 2012, Hernandez and Garcia Peña married, but their relationship deteriorated in the following years and they eventually stopped living together. Without Hernandez’s knowledge, Garcia Peña left San Antonio, Copán, with D.A.P.G. on May 20, 2014, and hired individuals to smuggle herself and D.A.P.G. into the United States. In New Orleans, Garcia Peña and D.A.P.G. lived with Garcia Peña’s boyfriend, also a Honduran citizen, and D.A.P.G.’s four-month-old half-sister, who was born in May 2015. D.A.P.G. is in kindergarten, and Garcia Peña works in the housekeeping department of a hotel. Garcia Peña and D.A.P.G. also attend church regularly. Aside from these connections, however, D.A.P.G. had no family in New Orleans, and both Garcia Peña and D.A.P.G. were involved in active removal proceedings before the New Orleans Immigration Court. After locating D.A.P.G., Hernandez filed a petition under the Convention in the United States District Court for the Eastern District of Louisiana on August 4, 2015, asserting that Garcia Peña wrongfully removed D.A.P.G. from Honduras and seeking D.A.P.G.’s prompt return.
  The district court concluded that the testimony at trial established by a preponderance of the evidence that D.A.P.G. was well-settled in the United States and denied Hernandez’s return petition. It concluded that D.A.P.G.’s immigration status did not outweigh his “age, stability of new residence, school attendance, friendships in the new area, participation in the community and respondent’s employment and financial stability.”  The district court categorized Garcia Peña’s and D.A.P.G.’s immigration status as generally “questionable,” instead of focusing more concretely on their involvement in active removal proceedings.
The Court observed that the underlying purpose of the “now settled” defense is to recognize that at some point a child may become so settled in a new environment that return is no longer in the child’s best interests. Lozano v. Alvarez, 697 F.3d 41, 53 (2d Cir.2012), aff’d sub nom. Lozano v. Montoya Alvarez, ––– U.S. ––––, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014). The Court joined the circuits that addressed the issue and held that the following factors should be considered: (1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) the respondent’s employment and financial stability; and (7) the immigration status of the respondent and child. It observed that Courts diverge, however, with regard to the significance of immigration status, which forms the crux of the parties’ arguments here. The Court observed that in  Lozano, the Second Circuit concluded that “immigration status should only be one of many factors courts take into account .... [and] that, in any given case, the weight to be ascribed to a child’s immigration status will necessarily vary.” 697 F.3d at 56. The Second Circuit also explained that the proper inquiry is not abstract but fact-specific, and is broader than just the threat of deportation. For example, the importance of immigration status “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.” Id. at 57. The Ninth Circuit also declined to announce a categorical rule for the weight to be given to immigration status. See In re B. Del C.S.B., 559 F.3d at 1010, 1009–10. Unlike the Second Circuit, however, the Ninth Circuit’s focus was not fact-specific but generally emphasized the insignificance of immigration status when there is no concrete threat of removal, devoting extensive commentary to the low-risk of deportation for most undocumented aliens. The Fifth Circuit joined the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test. Like the other factors, however, immigration status should not be considered in the abstract. In other words, proper application of the framework does not assign automatic treatment to any particular type of immigration status. Instead, it agreed with the Second Circuit that an individualized, fact-specific inquiry is necessary in every case.
  The Court found that the district court did not clearly err in its factual findings but erred in its legal interpretation and application of the well-settled defense. Although the district court purported to adopt the Second Circuit’s balancing test, it erred in its application by treating immigration status as a factor in the abstract. That is, the district court failed to adequately examine Garcia Peña’s and D.A.P.G.’s actual immigration status. Instead, the district court discredited the impact of immigration status generally by relying on the Ninth Circuit’s reasoning that “the likelihood of deportation of law-abiding aliens ... is small, both because of the sheer number of undocumented immigrants and because the government has set a priority to deport those with criminal records re B. Del C.S.B., 559 F.3d at 1012. This type of broad statement failed to take into account relevant, case-specific distinctions that may exist among and between different immigration statuses. Hence, the district court’s method of analysis and conclusion that D.A.P.G. was well-settled, without a proper analysis of Garcia Peña’s and D.A.P.G.’s specific immigration status, was incorrect.
  The Court held that on de novo review, D.A.P.G. and Garcia Peña’s involvement in active removal proceedings had to be considered when balancing the factors. Garcia Peña admitted she and D.A.P.G. received notice of, but did not attend, scheduled final removal hearings in July 2015. These hearings alone distinguished Garcia Peña and D.A.P.G. from the putative individuals described by the Ninth Circuit who will never have contact with immigration authorities. Moreover, D.A.P.G. and Garcia Peña were both within current DHS civil enforcement priorities as new immigration violators. Giving due consideration to immigration status and considering the other relevant factors listed above, the thin evidence in the record did not demonstrate that D.A.P.G. had formed significant connections to his new environment. D.A.P.G. turned six years old the day before the bench trial. He was a very young child not able to form the same level of attachments and connections to a new environment as an older child. See Lozano, 697 F.3d at 48 (noting that the district court found the five-year-old child “too young to form certain types of connections”). Although D.A.P.G.’s residence was stable, he had lived in New Orleans less than a year. At the time of the bench trial, D.A.P.G. had regularly attended kindergarten for three weeks. D.A.P.G.’s acquaintances in the community were dependent on his mother. He had an infant half-sister who is one of two relatives in New Orleans. In comparison, he had a large extended family through both his mother and father in Honduras. D.A.P.G. attended church regularly with his mother. Garcia Peña was employed in a hotel housekeeping department and was able to provide for D.A.P.G.’s needs. As to the seventh factor,  immigration status. D.A.P.G. and Garcia Peña are both illegally present in the United States and involved in active removal proceedings. This involvement in active removal proceedings and categorization as new immigration violators seriously threatened their ability to remain in the United States. Balancing the above factors on de novo review,  the Court was not persuaded that D.A.P.G. has formed significant connections to his new environment and thus concluded D.A.P.G. was not well-settled under the Convention. 

Rodriguez v Yanez, 2016 WL 1212412 (5th Cir., 2016)[Mexico] [Exercise of Rights of Custody] [age and maturity defense] [Further development of the record required to determine whether child objected to return to Mexico]

In Rodriguez v Yanez, 2016 WL 1212412 (5th Cir., 2016) Appellant Pedro Antonio Flores Rodriguez (“Flores”) and Appellee Yolanda Ivonne Salgado Yanez (“Salgado”) were the parents of A.S.F.S., an eleven-year-old girl. A.S.F.S. was born in Chihuahua, Mexico on January 6, 2005. A.S.F.S. lived in Mexico until October 2013, when Salgado took her to the United States without Flores’s permission. On July 17, 2014, Flores filed a petition in the Eastern District of Texas seeking the return of A.S.F.S. to Mexico.

The district court appointed a guardian ad litem for A.S.F.S. and held a show cause hearing. After Flores and Salgado completed their testimony, the district court briefly questioned A.S.F.S. in chambers. A.S.F.S. testified that her relationship with her father was poor. She indicated that Flores never spent time with her and did not even speak to her except to ask questions about Salgado’s love life. A.S.F.S. explained that she “would just go to [her] room” when Flores visited Chihuahua because “he was always drunk” and would say “ugly things ... [l]ike dirty words.” She characterized the relationship between her parents as “[f]ighting” and reported that she had seen Flores “push[ ]” Salgado. At two different points, the district court asked A.S.F.S. whether she was happier living in Mexico or the United States. A.S.F.S. testified that she was happier in Texas, although she was happy living in Mexico too.

In December 2014, the district court issued a decision in Salgado’s favor. The district court denied Flores’s petition because he “was not exercising his custody rights at the time of A.S.F.S.’s removal to the United States.” The district court also denied Flores’s petition for the independent reason that A.S.F.S. “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [her] views.”

Upon de novo review, the Fifth Circuit concluded that Flores was exercising his custody rights at the time of removal. Salgado testified  that Flores visited A.S.F.S. at least once every six weeks, or around 8 times a year. Salgado also conceded in her brief that Flores “paid the fees” for A.S.F.S.’s public school in Chihuahua.19 “By visiting [A.S.F.S.] and contributing to [her] financial support,” Flores was exercising his custody rights. Despite these clear parallels, Salgado urges that her “mistress relationship” with Flores distinguished this case. That is, like the district court, she contended that any contact that Flores had with A.S.F.S. was merely incidental to seeing her. The Fifth Circuit held that such arguments, however, go to whether Flores was exercising his “custody rights well or badly.” Regardless of whether Flores was interested in seeing A.S.F.S. when he traveled to Chihuahua, the record was undisputed that he did maintain some sort of relationship with her, which is enough to demonstrate exercise. 
Accordingly, the district court erred in concluding that Flores was not exercising his custody rights at the time of removal.


The Fifth Circuit observed that in order to establish the age and maturity defense Salgado had to  establish two distinct facts: (a) A.S.F.S. “has attained an age and degree of maturity at which it is appropriate to take account of [her] views”; and (b) A.S.F.S. “objects to being returned.” The main thrust of Flores’s briefing was that Salgado has not established that A.S.F.S. “objects to being returned.” The Court noted that is has “declined to hold, as a matter of law, that any particular age is sufficient or insufficient to meet the defense.” Whether A.S.F.S. “objects to being returned” was more difficult. Salgado and A.S.F.S.’s guardian ad litem both assert that “A.S.F.S. listed [the following] reasons for her objection to returning to Mexico:” • Her father’s psychological harassment of her mother;• Her father’s physical abuse of her mother; • Her father’s use of foul language; • His interrogation of her for information on her mother; • Her fear of her father.

Flores argued that these reasons cannot form the basis of an objection under the Convention. He contended that a wrongfully removed child may not object to returning to her country of habitual residence because she does not want to live with the petitioning parent. The Fifth Circuit held that whether the child wants to live with the abducting parent is very relevant to her interpretation of her immediate “interests.” Indeed, it is likely the most important consideration. A rule formally prohibiting objections based upon this consideration would result in hearings full of winks and nods. An objection by the child to being returned, if found to be a considered and mature decision, will be honored whether or not it rests in part on her objection to living with the abducting parent.  In its order, the district court found that it was “appropriate to take into account A.S.F.S.’s views” because she “exhibited strong cognitive and social abilities, and clearly expressed a desire to remain with [Salgado] in the United States.” The court also noted that A.S.F.S.’s testimony “that she would be happier remaining in the United States because she would have greater educational opportunities, and the ability to learn more languages” “[f]urther confirm[ed] her maturity.” Although these findings adequately explained why A.S.F.S. was mature enough to object, they only hinted at whether she did object and, if so, for what reasons. Rather than speculate, the Fifth Circuit vacated this portion of the district court’s order and remanded to allow the court to reassess whether Salgado had met her burden in light of the legal principles established by the decision. On remand, the district court was ordered to engage in a new colloquy with A.S.F.S. and enter more detailed findings regarding its eventual conclusion.

Gomez v Fuenmayor 2016 WL 454037(11th Cir, 2016)[Venezuela] [Petition denied][Grave Risk of Harm established where violence directed at mother]

In Gomez v Fuenmayor 2016 WL 454037(11th Cir, 2016) the Eleventh Circuit held that sufficiently serious threats and violence directed against a parent can nonetheless pose a grave risk of harm to a child as well.  

This lawsuit ariose from a battle between Salvi and Naser over custody of their four-year-old daughter, M.N. All three individuals were citizens of Venezuela. Salvi and Naser were never married and Naser was now married to Anibangel Molina Anais (“Molina”). Beginning in 2012, Naser and Molina made repeated threats against Salvi and his family. Molina called Salvi’s mother and told her that if Salvi ever returned to Molina’s home seeking to visit his daughter, it would be the last thing Salvi did in his life. Then, in July 2012, Naser and Molina left Venezuela with M.N. and took her to Miami. Salvi filed a petition under the Convention in the United States District Court for the Southern District of Florida and successfully obtained an order requiring that M.N. be returned to Venezuela in his custody. During the course of the court proceedings in Miami, the district judge awarded Salvi primary custody of M.N. while granting Naser visitation rights to be exercised in the presence of a court-appointed supervisor, Karina Lapa. At these visits, which occurred in the United States, Lapa noted Naser’s hostility toward Salvi, including hearing threats made over the course of the ten visits she supervised. Lapa specifically testified that Naser repeated that she was going to make Salvi “pay” for what he had done and said that “something is going to happen” to him when Naser regained custody over M.N. Lapa relayed these threats to Salvi. On one occasion, Lapa found Naser’s mother standing outside the visitation site, reportedly trying to determine where Salvi was coming from with M.N. Lapa said that she was “very concerned” about M.N.’s safety. Upon returning to Maracaibo in Venezuela, Salvi and M.N. went into hiding, preventing Naser from visiting her. At a Venezuelan court hearing attended by both Salvi and Naser shortly after their return to Maracaibo, Naser was accompanied by armed guards, who also accompanied her to every subsequent court date. In October 2013, a Venezuelan court ordered a continuation of the United States federal district court’s custody arrangement, granting Salvi primary custody. Upon hearing this ruling, Naser had an outburst in court, threatening to kill Salvi. Subsequently, Salvi’s girlfriend, Claudia Poblete, picked him up from the courthouse; they were followed for several blocks by individuals on motorcycles. Three days later, Poblete dropped off Salvi, Salvi’s sister, and M.N. at Salvi’s parents’ home after attending a birthday party. The windows of Poblete’s car were tinted black, making it impossible to see inside the vehicle. While driving home, Poblete was shot at and struck three times. Additional bullet holes were found in the side of the car, the headrest of the passenger seat, and above the child seat. Salvi testified that he did not know who shot Poblete because he was not present when it happened. Approximately a week later, Salvi saw Naser at a courthouse in Venezuela and heard Naser telling public defenders there that she was concerned about M.N.’s safety because the earlier shooting had been intended for Salvi. Salvi had told no one about the incident except the attorney he had met with that day. The violence continued on November 2, 2013, as several people broke into Salvi’s parents’ building in Venezuela. The individuals shattered one of the windows of Salvi’s mother’s car and spray-painted on the side of the car in Spanish, “You are going to die.” Moreover, Salvi’s sister and mother testified that they had seen several men enter the garage that housed the car carrying a package and then leave without the package. Later, they discovered that a package containing twenty-five glassine envelopes of cocaine had been placed in the mother’s car. Salvi does not know who broke into and defaced his mother’s car. Throughout this time frame, on approximately five occasions, Naser’s brother and several armed men went to schools in Venezuela where Salvi’s sister worked, seeking information about when she arrived, whom she traveled with, and whether her brother came to the school. They offered money to employees at the schools to obtain this information. On December 20, 2013, a Venezuelan court affirmed the decision granting Salvi primary custody of the child and awarding Naser supervised visits. Just over a week later, Salvi’s mother was arrested after a search of her car by the Venezuelan National Guard discovered drugs. She testified that, as with the first time drugs were planted in her car, she did not know who placed the drugs there. The investigation was reportedly unusual and the charges against her were later dropped. Based on these facts, Salvi testified in federal district court that he feared for his daughter’s safety because of the violence directed against him and his family and the possibility that M.N. would live with Molina, who, Salvi claimed, is involved in trafficking drugs. Salvi added that he made several unsuccessful attempts to obtain from the Venezuelan government protection for himself and his family. Eventually, he said that he was advised by government officials to leave the country because he could not be protected in Venezuela.  On May 7, 2014, the Venezuelan Family Court issued an order revoking Salvi’s custody rights. Salvi, his sister, his mother, and M.N. all have pending asylum applications in the United States.
The district court concluded that, under the Convention, Naser,  the mother, had established a prima facie case requiring the return of her daughter because the father, Salvi, had “wrongfully removed the child from her habitual residence in Venezuela.” However, the district court concluded that the Convention did not require M.N. to be returned to Venezuela because doing so would cause her to face “a grave risk of harm or to be placed in an intolerable situation.” The court highlighted the repeated threats made by Naser and her husband, Molina against Salvi and his family, that Molina was a fugitive “who has repeatedly demonstrated a disregard for the law,” the repeated presence of armed guards at court hearings, reports that Salvi and his family were followed on multiple occasions, the vandalism and destruction of Salvi’s mother’s car, the planting of drugs in that car, and the shooting of Salvi’s girlfriend. The district court squarely laid the blame for these repeated acts on Naser and Molina: The Eleventh Circuit found that the evidence had established that [Naser] and Molina directly made threats, and the evidence also supported the finding that it was highly probable that [Naser] and Molina were involved in the acts of violence against [Salvi] and his family. These acts of violence, although not specifically directed at the child, placed her in a perilous position with a high risk of danger. Even setting aside the risk of physical harm, the Convention’s exception also applies to the grave risk of psychological harm. It seemed almost self-evident that a child raised in an environment where one parent is engaged in a sustained campaign of violence (including the use of deadly force) against the other parent faces just such a grave risk.
To the extent that Naser argued that none of these incidents directly affected M.N. and that no physical harm had yet come to M.N., she was correct. But, the Court previously held  the inquiry under the Convention is not whether the child had previously been harmed. Rather, the question is whether returning the child to Venezuela would expose her to a grave risk of harm going forward. The uncontroverted evidence of intended and actual violence—including the shooting—directed at Salvi and his family yielded every indication of posing a grave risk to those around him, including his daughter. The district judge correctly found that clear and convincing evidence supported a determination that M.N. would face a grave risk of harm if she were to be returned to Venezuela, and that Naser’s petition should be denied. The judgment of the district court was affirmed.

Stovall v Gallegos, 2016 WL 1644897(D.Oregon, 2016) [Mexico] [Fees and Costs]

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.

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.