Martinez v Cahue, 2016 WL 3457617 (7th Cir, 2016) [Mexico] [Habitual Residence] [Rights of Custody] [Petition denied]

In Martinez v Cahue, 2016 WL 3457617 (7th Cir, 2016) the first seven years of A.M.'s life, he lived in Illinois with his mother, Jaded Mahelet Ruvalcaba Martinez. He was born in Chicago in 2006. A.M.'s father, Peter Valdez Cahue, lived nearby, although he and Martinez never married. They entered into a private arrangement, never formalized through a court order, for custody and visitation rights. In 2013, Martinez moved to Mexico and took A.M. with her. About a year later, Cahue persuaded Martinez to send A.M. to Illinois for a visit; he then refused to return A.M. to Mexico.

            The district court held an evidentiary hearing, after which it determined that there was sufficient evidence that A.M. had acclimatized to Mexico during the year he lived there with his mother. It also found, however, that Cahue and Martinez did not jointly intend that A.M. should move to Mexico in the first place. It said, Martinez took A.M. to Mexico without Cahue's permission or knowledge (presumably about the permanence of the move—Cahue admitted that he knew about the trip). Emphasizing the absence of shared parental intent, the district court held that Illinois had remained A.M.'s habitual residence during the year he spent in Mexico, and thus Martinez's petition had to be dismissed.

            The Seventh Circuit reversed. It concluded that the district court asked the wrong question, and thus came to the wrong answer. It found that at all relevant times, Martinez had sole custody of A.M. under Illinois law, while Cahue had no right of custody either under Illinois law or the Convention. That meant that only Martinez's intent mattered, and it was plain that Martinez wanted A.M.'s habitual residence transferred to Mexico. Cahue's retention of A.M. in Illinois was therefore wrongful and he had to be returned to Mexico.

            The Court found that Martinez's initial removal of A.M. to Mexico in July 2013 was not subject to any legal restrictions that might allow Cahue's intent to affect the analysis. Cahue never obtained rights of custody for Convention purposes under these statutes, nor was Martinez's right to relocate A.M. constrained by them. In the absence of a court order, Illinois law presumes that the mother of a child born out of wedlock has sole custody. See 720 ILCS 5/10–5(a)(3) (2013) Cahue did not obtain a custody order during the time that mattered. When Martinez moved to Mexico with A.M., she may have violated the terms of the couple's private custody agreement. But the move did not violate a right of custody for Convention purposes. Martinez's removal of A.M. to Mexico was therefore not wrongful. Nor did it violate Illinois law. Because only Martinez has rights of custody under the Convention, and Illinois law did not in any way restrict her right to move away from the country with her son, only her intent was of legal significance.

            The second key consideration in determining habitual residence is the extent to which the child has acclimatized to one or the other place. The district court found that by August 2014, A.M. had acclimatized to Mexico. While A.M. had spent most of his life in Illinois, that fact is not dispositive. (That would create the kind of formulaic, ratio-based test that appears nowhere in the Convention.) The Seventh Circuit found that by the end of his first year in Mexico, he displayed all of the indicia of habitual residence, including friends, extended family, success in school, and participating in community and religious activities.

    

          Based on Martinez's intent that he change habitual residence, the lack of any right on Cahue's part to veto her preference, and A.M.'s own successful acclimatization, the Court conclued  that Mexico was A.M.'s habitual residence at the time Cahue acted to retain him in the United States.   Because the district court found that A.M.'s habitual residence was Illinois, it had no reason to evaluate the wrongfulness of Cahue's 2014 retention of A.M., or any possible defenses that Cahue might have raised.

            Cahue admitted  that he retained A.M. in Illinois without Martinez's consent. In doing so, he violated her rights of custody under Mexican law. See Civil Code for the State of Aguascalientes, arts. 434, 437, 440–41; Garcia, 808 F.3d at 1164 (noting that the right called patria potestas is “a ‘right of custody’ under the Convention” that is conferred to both parents, and whose “central values” are “fairness and reciprocity”).  

            Because Cahue's retention of A.M. in July 2014 was wrongful, A.M. had to be returned to Martinez unless Cahue can show that either of the two defenses he presented applies: that A.M. is now so “settled in [his] new environment” that he should not be returned, see Convention art. 12, T.I.A.S. No. 11670, or that Martinez “subsequently acquiesced in the ... retention,” see id. art. 13(a). The  record did not support the applicability of the “settled-child” defense, and did not not support a finding that Martinez ever acquiesced in Cahue's actions.

Alcala v Hernandez, 2016 WL 3343251 (4th Cir.,2016)[Mexico] [Petition dismissed] [Now Settled]

     In Alcala v Hernandez, 2016 WL 3343251 (4th Cir.,2016) in June 2013, Appellee Claudia Garcia Hernandez (Mother) removed her two minor children from their home in Mexico and arrived in South Carolina in August 2013. In October 2014, the children’s biological father, Appellant Fernando Contreras Alcala (Father), petitioned for return of the children to Mexico. The district court found that Mother’s removal of the children was wrongful, but that the children were now settled in their new environment and declined to order the children returned. The Fourth Circuit affirmed.  It noted that Article 12 states that where appropriate proceedings are not commenced within one year of a child being wrongfully removed, a court shall nevertheless order return “unless it is demonstrated that the child is now settled in its new environment.” In a case of first impression in this Circuit the Court found that the reasoning of the Second Circuit in Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), aff’d in part sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014) was consisted with its reasoning and agreed that for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment. Insofar as relevant facts to be considered, it held that courts should consider any relevant circumstance that demonstrates security, stability, or permanence—or the lack thereof—in a child’s new environment. Such a totality-of-the-circumstances analysis . It observed that  the district court here looked to the factors articulated by the Second Circuit in Lozano: (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. The district court correctly recognized that such factors are non-exhaustive, and in a particular case some of these considerations may not apply and additional considerations may be relevant. While it agreed that the use of such factors may be helpful in guiding factual development and analysis, their use should not obscure the ultimate purpose of the court’s inquiry, which is a holistic determination of whether a child has significant connections demonstrating a secure, stable, and permanent life in his or her new environment.

    The Fifth Circuit also observed that under the Convention Courts have discretion to order the return of the child at any time. However, the Convention provides no explicit guidance as to when a court should exercise such discretion. It noted that the discretion to order return is grounded in principles of equity and it was not persuaded that equitable considerations warranted ordering the Son’s return. 

Berezowsky v Rendon Ojeda, 2016 WL 3254054 (5th Cir.2016)[Mexico] [Re-return order]

  In Berezowsky v Rendon Ojeda, 2016 WL 3254054 (5th Cir.2016) Michelle Gomez Berezowsky filed a Hague Convention petition arguing that Rendon wrongfully removed PARB from his habitual residence (purportedly Mexico). The district court ruled in her favor and ordered PARB returned to Berezowsky. Rendon complied, and Berezowsky, with the district court’s permission, left for Mexico with PARB. Rendon appealed, asking that PARB be returned to him. In August 2014 the Fifth Circuit reversed the district court’s judgment (Ojeda 1). It concluded, in relevant part, that “[f]or the reasons stated in this opinion we VACATE the district court’s order and REMAND with instructions to dismiss.” The accompanying mandate stated that “[i]t is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.” On remand, the district court succinctly “ORDERED THAT the [District] Court’s Order for the return of the child [to Berezowsky] ... is VACATED and this action is DISMISSED.” Rendon timely filed a Rule 59(e) motion to amend the judgment, asking the court to order Berezowsky to return PARB to him in light of the dismissal. The district court denied the motion, and Rendon again appealed. 

       The Fifth Circuit affirmed. It found no binding precedent addressing how a mandate “vacat[ing] ... and remand [ing] with instructions to dismiss” should be parsed.  It concluded that  Ojeda  neither required nor forbade a re-return order. The Court did not  decide in that case whether or not a re-return order was warranted. Because a lower court “is free to decide matters which are left open by the mandate,” the decision to issue or deny a re-return order was therefore the district court’s. The district court decided not to issue a re-return order.  It subsequent refusal to amend the judgment (which provided the basis of the present appeal) is reviewed for abuse of discretion, and amendment is appropriate if the controlling law has changed, if new evidence is available, or if the initial decision was manifestly erroneous as a matter of law or fact.  Rendon did not allege new evidence or a change in controlling law, and the district court’s decision was not legally or factually erroneous. The law of the case did not compel a re-return order, and the court reasonably could have concluded on these facts that the equities did not favor a re-return order. Citing these concerns, the Ninth Circuit recently refused to issue a re-return order after overturning a district court’s Hague Convention decision, in what appears to be the only federal appellate case addressing the propriety of such an order. In re A.L.C., 607 F. App’x 658, 663 (9th Cir. 2015). The Fifth Circuit affirmed. It held that the district court did not abuse its discretion in refusing to issue a re-return order. 

Cefaliello v Serpico, 2016 WL 3256972 (N.D. Ohio, 2016)[Italy] [Federal & State Judicial Remedies] [Motion to dismiss denied]

In Cefaliello v Serpico, 2016 WL 3256972 (N.D. Ohio, 2016) the district court denied the Rule 12(b)(6) motion to dismiss. The parties had a child in Italy who was born on January 26, 2012. In November 2013, the parties moved to  Ohio. Plaintiff did not obtain a green card and  was required to leave the country in May 2014. Defendant and the minor child did not return to Italy.  On February 25, 2016, the state court granted Defendant an uncontested divorce which allowed Plaintiff visitation rights with the minor child. On April 15, 2016, Plaintiff filed this Hague Convention action. The district court observed that ICARA provides that federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention and ICARA: 42 U.S.C. § 11603(g); Holder v. Holder, 305 F.3d 854, 864-65 (9th Cir. 2002). No Hague Petition was adjudicated by the state court, nor was there any indication that the provisions of the Hague Convention were considered when Plaintiff’s custody rights were determined. As such, the state court divorce decree was not entitled to preclusive effect.

In re R.C.G.J., 2016 WL 3198285 (N.D. Florida, 2016) [Honduras] [Habitual Residence][Petition granted]

In re R.C.G.J., 2016 WL 3198285 (N.D. Florida, 2016) the Court found that the 5 year old child was born to parents who were living together in Hondouras and had the shared intent to remain there, which the mother changed. Two considerations made the case atypical. First, with the approval of both parents, the child lived most of his life in the United States and he was acclimated here. Second, both parents intended all along that the child will live with the mother, although the father has insisted on his right to control the child, but never wished to have separate physical custody. The actual expectation of the parents was that the child would  live with the mother in the United States at least until 2017 and probably through high-school graduation in 2029. The father acquiesced in the mother and child living in the United States.  The parents shared a settled mutual intent that the stay last indefinitely. Although the mother signed an agreement in 2013 designating the child’s habitual residence as Honduras and agreed in April 2015 to entry of an order confirming that provision, what the parties said about habitual residence was different from what they agreed to do about it. They agreed that the mother and child would move to the United States and remain until 2016—a date later extended to 2017—and the parties included a provision for extending the period of residence in the United States indefinitely. The parties contemplated that the child would remain in the mother’s physical custody and would stay in the United States for an extended period—probably through high school. There was no reason to believe the child would ever actually move back to Honduras. In sum, the child’s habitual residence, as of July 11, 2015, when he was retained in the United States, was the United States. 

Albani v Albani, 2016 WL 3074407 (S.D. Cal, 2016) [Singapore] [Fees and Expenses]

In Albani v Albani, 2016 WL 3074407 (S.D. Cal, 2016) after a 12 day bench trial, the Court granted the Petition for the return of the child  to Singapore, and then directed Respondent mother to pay $196,498.50 in attorney’s= fees.  It analyzed the award, utilizing the lodestar method, citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). It held it was not appropriate to award attorney’s= fees for petitioners five attorneys, and  only awarded fees for the work done by Amanda Harris, the person responsible for briefing and Richard Min, the lead attorney who argued the case. Ms. Harris billed 228.6 hours and Mr. Min billed 311.73 hours on matters pertaining to this case. The Court concluded that the hours were reasonable. Mr. Min billed his client at a rate of $300 per hour, and Ms. Harris billed at a rate of $450 per hour for the 2015 calendar year, and $455 per hour starting in 2016. The hourly rates were reasonable. Respondent argued that she had a good‑faith belief that the United States was I.A.=s habitual residence. The Court found that her testimony lacked credibility. It rejected her argument that any fee award should be reduced because of her financial condition. She was a trained physician and prior to these proceedings, she was employed in Singapore as a project manager, working part‑time and making $5,000 a month in Singapore dollars.

Hopkins v Webb, 2016 WL 2770553 (W.D. Wisconsin) [Northern Ireland] [Federal & State Judicial Remedies] [TRO] [Death of Respondent]

          In Hopkins v Webb, 2016 WL 2770553  (W.D. Wisconsin) Petitioner seeking  the return of C.H., the minor child of Mr. Hopkins and respondent, Jackie Lynn Webb initiated this case by filing an ex parte motion for entry of a temporary restraining order. After the court determined that an ex parte TRO was warranted. Ms. Webb and C.H. could not be located but counsel appeared for Ms. Webb. Counsel informed the court that Ms. Webb passed away very recently and that C.H. was  the subject of a temporary custody order of the Sumner County, Tennessee, court. Pursuant to the order, C.H. was in the temporary legal custody of the Tennessee Department of Children’s Services (TDCS). Counsel for Ms. Webb indicated that a member of Ms. Webb’s family intended to seek custody of C.H. and intended to resist Mr. Hopkins’ attempts to return C.H. to Northern Ireland.  To preserve Mr. Hopkin’s right to a decision on the merits of his petition, and to ensure that C.H. was  available for return to his father’s custody, should that be the ultimate result of these proceedings, the court  issued a TRO to C.H.’s current custodian, TDCS, and transferred the case to the United States District Court for the Middle District of Tennessee, where C.H. was currently located. See 22 U.S.C. § 9003(b) (“Any person seeking to initiate judicial proceedings under the [Hague] Convention for the return of a child ... may do so by commencing a civil action ... in the place where the child is located at the time the petition is filed.”).