Smith v Smith, 2016 WL 4154938 (W.D. North Carolina, 2016) [France] [Federal & State Judicial Remedies] [Temporary Restraining Order Granted ] [Winter Rule].

In Smith v Smith, 2016 WL 4154938 (W.D. North Carolina, 2016) Petitioner (Father) alleged that Respondent wrongfully retained the parties’ son “C.R.S.”, born in the United States in 2004, from his habitual residence in France, and that such wrongful retention occurred on or about June 30, 2016. The mother and son purchased round-trip tickets from France to North Carolina, departing June 28, 2016 and returning August 24, 2016; the child was attending sleepaway camp in the United States, where he had been since July 2nd, 2016 and he was scheduled to return  August 3rd, and would resume school in France. Petitioner  alleged that on July 19, 2016, he was unexpectedly served with Respondent’s North Carolina Complaint for Divorce and Custody, which Petitioner read as Respondent’s unequivocal intent to remain in North Carolina with the child. The Court observed that a TRO which is procedurally governed by Rule 65(b), Federal Rules of Civil Procedure, which provides as follows: The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. In considering the issuance of TRO, the court also considered current case law governing the issuance of such relief, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)]. In keeping with Winter, the Fourth Circuit found that first, a plaintiff must now show that he will “likely succeed on the merits” regardless of whether the balance of hardships weighs in his favor.  Also, the likelihood of success on the merits requires more than simply showing that “grave or serious questions are presented.”  Second, the plaintiff must make a clear showing that he will likely be irreparably harmed absent preliminary relief. That the plaintiff’s harm might simply outweigh the defendant’s harm is no longer sufficient.  The showing of irreparable injury is mandatory even if the plaintiff has already demonstrated a strong showing on the probability of success on the merits. Third, the Court is admonished to give “particular regard” to the “public consequences” of any relief granted. Finally, there no longer exists any flexible interplay between the factors, because all four elements of the test must be satisfied.  White v. Miller, 2011 WL 1168045, 2 (D.S.C. Mar. 7, 2011).
The court concluded that a TRO would issue prohibiting Respondent or anyone acting on her behalf from leaving the district with the child pending disposition of the  Hague Petition.

Padilla v. Troxell, 2016 WL 4098588 (W.D. Virginia, 2016) [Mexico] [Consent Defense Established] [Petition Denied]

In Padilla v. Troxell, 2016 WL 4098588 (W.D. Virginia, 2016) on May 23, 2016, Petitioner Xochitl Jazmin Velasco Padilla (“Petitioner”) filed a Petition claiming that her son, J.V., was brought into this country without her consent and in contravention of her custody rights by the child’s legal father, Respondent Joe Richard Troxell. The district court found that J.V. was wrongfully removed (or retained) from his habitual residence in violation of her custody rights. However, Respondent established that Petitioner consented to J.V. being brought into this country. Because consent of the petitioning parent is a defense to the Petition, and because Respondent had adequately shown that Petitioner consented to J.V.’s removal from Mexico, the petition for return was denied. Although Respondent was not J.V.’s biological father, he was listed on J.V.’s birth certificate as his father and was listed with the full consent of both Petitioner and Respondent. Under Mexican law, as stipulated by the parties, Respondent enjoyed the same parental rights as Petitioner. In December of 2014, Petitioner and Respondent discussed Petitioner’s desire to live in the United States and whether J.V. would be better off with Respondent. According to Respondent, Petitioner said her other two sons were born in the United States, so they were U.S. citizens, but that she would have a problem moving with J.V. Respondent agreed to help Petitioner get papers for J.V. and bring him to the United States. After J.V.’s passport was secured in December 2014, J.V. returned with Respondent to his home in Acapulco. A few months later, Respondent acquired a “fiancee visa” for Blanca Leyva, which permitted Leyva to enter the United States for ninety days to marry Respondent. According to Respondent, it would have taken too long to get a visa for J.V., so he paid a smuggler to take the three-year-old J.V. across the U.S./Mexican border.  J.V. was picked up during a raid by Border Patrol near El Paso, Texas. After a review of his documents, J.V. was released into Respondent’s custody, and Respondent, J.V., and Leyva settled in Halifax County, Virginia. The Court rejected Petitioner’s story. She agreed that she wanted Respondent on J.V.’s birth certificate, and she agreed that she went with Respondent to acquire a passport for J.V. in December 2014; she contended, however, that Respondent took J.V. without her knowledge or consent. The district court found that the  evidence established that Petitioner consented to his removal and had no objections to J.V. remaining in Respondent’s care so long as Respondent supported her financially. The court pointed out, in a footnote that that “consent” would seem to obviate the “wrongful” element of Petitioner’s prima facie case, but the Convention nevertheless presupposes that one parent may consent to wrongful removal.

Tokic v. Tokic, 2016 WL 4046801 (S.D. Texas, 2016) [France] [Petition granted] [Grave Risk of Harm and Article 20 Defenses Not Proven]

In Tokic v. Tokic, 2016 WL 4046801 (S.D. Texas) the petitioner sought the return of his twelve year old and ten year old sons, asserting that on or about April 1, 2016, Jessica Tokic, their mother, abducted them from France and brought them to Texas where they remained. The parties stipulated or conceded that France was the children’s country of habitual residence.  The Court  determined that the respondent’s removal of the children to the United States was a breach of the petitioner’s “rights of custody” under the laws of France. Article 371-1 of the French Civil Code, parental authority is defined as “a set of rights and duties whose finality is the welfare of the child.” “It is vested in the father and mother until the majority or emancipation of the child in order to protect him in his security, health and morality, to ensure his education and allow his development, showing regard to his person.”  Article 371-3 further provides that “[a] child may not, without the permission of the father and mother, leave the family home and he may be removed from it only in cases of necessity as determined by statute.” The court found that petitioner established a prima facie case for return. It rejected, inter alia,  Respondents grave risk of harm” defense. The evidence failed to support the respondent’s claims concerning the petitioner’s abusive behavior. While the allegations made against the petitioner presented serious concerns, the respondent had not presented any actual evidence that the petitioner had a history of abusing the children or that he actually abused them. Although both parties engaged in arguments in the presence of their sons, the evidence did not support the view that one party was any more overbearing or aggressive than another, or that any physical altercation ever ensued. Respondent did not show by clear and convincing evidence that the children would face a grave risk of harm or be subjected to an intolerable situation if they were required to return to France.  It also rejected application of Article 20’s public policy exception, which  is to be invoked only on ‘the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.’ ” Souratgar v. Lee, 720 F.3d 96, 108 (2nd Cir. 2013) The extraordinary nature of the public policy defense is further exemplified by the fact that, to date, no federal court has denied a petition for repatriation based upon this defense.

Dias v. De Souza, 2016 WL 4083354 (D. Mass, 2016)[Brazil [Petition granted ] [Grave Risk of Harm Defense Not Established]

In Dias v. De Souza, 2016 WL 4083354 (D. Mass, 2016) Marina De Aguiar Dias (“Petitioner”) the mother sought the return of her thirteen-year-old daughter, H.D., to Brazil. Petitioner and Respondent,  an unmarried couple,  separated approximately three years after H.D.’s birth., Petitioner and H.D. lived together in a house located in the Water Box  neighborhood of Salvador, Bahia, Brazil, which they shared with Petitioner’s parents and grandmother. In May 2013 Respondent moved to Massachusetts.  On June 13, 2015, accompanied by Respondent’s mother and with Petitioner’s permission, H.D. left Brazil to temporarily visit Respondent in Worcester, Massachusetts. On June 18, 2016, Respondent and his mother called Petitioner and asked for her permission to keep H.D. in the United States. Petitioner declined to give her permission, but Respondent nevertheless kept H.D. in the United States over Petitioner’s objection. The district court found that Petitioner established a prima facie case and that Respondent failed to establish by clear and convincing evidence that H.D.’s return would subject her to a grave risk of harm or otherwise place her in an intolerable situation. Respondent testified that areas “around” the Red River neighborhood where H.D. would return were extremely dangerous and controlled by drug traffickers, but did not demonstrate that H.D. would face a grave risk of harm due to the violence in those areas. Respondent testified that he believed H.D., while not in school, would spend the majority of her time inside her house if she were to return to Brazil, and Petitioner likewise testified that when H.D. previously lived in Brazil, she was not allowed to walk outside without adult supervision.  Petitioner’s husband testified that the house to which H.D. would return was located in a calm, middle-class neighborhood, and this testimony was uncontroverted by Respondent’s testimony, which focused on slum neighborhoods “around” the Red River area. Respondent also failed to show that H.D.’s living conditions in Salvador would constitute a grave risk of physical or psychological harm or lead to an otherwise intolerable situation. Respondent’s claim that H.D.’s return to Brazil would result in a grave risk of harm or an otherwise intolerable situation due to isolation also failed. It was  undisputed that H.D. would attend school outside of her house, and Petitioner testified that the school which H.D. would attend offered extracurricular activities, including athletics. Living in Salvador with Petitioner may reduce or even eliminate H.D.’s freedom to walk in the street unaccompanied by an adult, but an “intolerable situation was not meant to encompass return to a home where living conditions are less palatable,” and the situation envisioned by Respondent—where H.D. would spend most of her free time at home watching television and playing video games—does not approach a showing of “clear abuse.”

Pennacchia v Hayes, 2016 WL 4059246 (D. Idaho,2016) [Italy] [Habitual residence] [Petition denied]

In Pennacchia v Hayes, 2016 WL 4059246 (D. Idaho,2016) SAPH was born in Seattle, Washington on August 24, 2010. In October of 2010, after SAPH’s birth, the parties decided that Ms. Hayes and SAPH would travel with Mr. Pennacchia to his home in Anagni, Italy to try and live as a family. Petitioner argued the parties’ intention was to move to and live in Italy as a family and, therefore, SAPH’s habitual residence was Italy because that is where she had lived from the time she was two months old, attended preschool, and is where the locus of her family and social environment had developed for the majority of her life. Respondent argued that she agreed to live with the Petitioner in Italy during her year of maternity leave but that it was a “trial basis” and a “conditional stay” that could be terminated if the parties’ relationship did not work out. The District Court denied the petition finding that Seattle was the childs habitual residence. In Mozes, 239 F.3d at 1074 the Ninth Circuit instructs that where, as here, the child at issue has “not yet reached a stage in their development where they are deemed capable of autonomous decisions as to their residence,” the appropriate inquiry is the subjective intent of the parents. Thus, the Court will “look for the last shared, settled intent of the parents.” After taking into account the shared, settled intent of the parents, the Court then asks whether there has been sufficient acclimatization of the child in the new country to trump that intent. Mozes, 239 F.3d at 1074.  Before traveling to Italy in October of 2010, Ms. Hayes made several arrangements and executed many documents evidencing her intention was that SAPH’s habitual residence was the United States. Following SAPH’s birth, Ms. Hayes executed a will and opened a college savings plan for SAPH under Section 529 of the Internal Revenue Code. Ms. Hayes prepared paperwork to appoint guardians for SAPH in the United States. Ms. Hayes presented the document to Mr. Pennacchia who agreed to and signed the paperwork appointing the United States guardians. Ms. Hayes also obtained a United States passport for SAPH, private United States medical insurance, a Social Security account, and listed SAPH as her dependent on her United States taxes. The Respondent took other actions that demonstrate her own intention was to remain a resident of the United States. She consistently maintained a home, vehicle, bank accounts, credit cards, driver’s license, and health care all in the United States. In addition, the Respondent paid taxes and voted in the United States and traveled on a United States passport. These actions only established the Respondent’s residence, not SAPH’s. However, they were indicative of the Respondent’s intentions concerning her own permanent residence and, naturally, her intentions as to SAPH’s place of habitual residence. It is reasonable to infer the Respondent’s intention was for her infant child to be a habitual resident of the same country that she too called home. The Court found Petitioner failed to prove, that the parties’ intention was for SAPH’s habitual residence to be Italy. Instead, the Court finds the evidence proves that SAPH’s habitual residence was and is the United States. cases where there is no shared, “settled intention,” a country may be deemed a child’s habitual residence if unequivocal and objective facts prove the child has acclimatized to the new country to a degree that the Court could “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child ‘out of the family and social environment in which its life has developed.’ The Court found the evidence did  not show that SAPH has acclimated to Italy such that her habitual residence has changed from the United States. Petitioner offered only very limited evidence of SAPH’s Italian influences or her acclimatization. The Respondent came forward with compelling, credible evidence that SAPH’s habitual residence was, and remained, the United States during their time in Italy. While in Italy, SAPH attended a trilingual school where she was known as the “American Girl,” celebrated the Fourth of July and, for nine months, had an American-English speaking nanny. SAPH traveled to the United States frequently and for extended stays with her American family and friends. These strong cultural ties to the United States demonstrated that despite her residing in Italy for large portions of the year, she retained her original habitual residence in the United States.

Toufighjou v Tritschler, 2016 WL 3883193 (M.D. Florida, 2016) [Canada] [Defense of Consent Not Established] [Petition granted]

In Toufighjou v Tritschler, 2016 WL 3883193 (M.D. Florida, 2016) Toufighjou (father) and Tritschler (mother) were residents of Canada and had a three year old child, A.R.T. In July of 2015, both Toufighjou and Tritschler signed paperwork for A.R.T. to attend a daycare program in Florida. On August 2, 2015, Toufighjou went on a short vacation to the Canadian side of Niagara Falls, which was to end on August 6, 2015. On August 5, 2015, Tritschler informed Toufighjou that she would be going to a friend's home for a few days. Toufighjou soon discovered that Tritschler had crossed the border into the United States and traveled to Florida with the child. Tritschler removed the child from Canada with no warning to Toufighjou, and Toufighjou testified that Tritschler did not take her personal belongings to Florida. Immediately thereafter, Toufighjou contacted the police and hired an attorney. Toufighjou filed a request for return of the child with the Canadian government and took other formal and informal steps to secure his child's return to Canada. Days after arriving in Florida with the child. On June 23, 2016, Toufighjou commenced the proceeding for return. Tritschler did not dispute and the Court found that Toufighjou established a prima facie case. It rejected Tritschler’s defense of consent to or subsequent acquiescence in the removal or retention” of the child. Convention Art. 13(a); 22 U.S.C. § 9003(e)(2)(B). The facts did not establish that Toufighjou consented to his child's removal from Canada to Florida. A.R.T.'s removal was made without warning and while Toufighjou was on a short vacation. Tritschler did not tell Toufighjou that she was going to remove his child, and Toufighjou therefore had no opportunity to consent to his child's removal to Florida. Although Tritschler has come forward with daycare paperwork that Toufighjou signed in April of 2015, that does not carry Tritschler's burden of demonstrating that Toufighjou consented to the August 2015 removal of his child. In addition, the record did not show that Toufighjou acquiesced to his child's removal after that removal was made known to him.

Perla v Vasquez, 2016 WL 3878495 (D. Maryland, 2016) [El Salvador] [Venue]

In Perla v Vasquez, 2016 WL 3878495 (D. Maryland, 2016) Petitioner Jose Omar Flores Perla (Father) filed a verified petition against Respondent Jacqueline Ivonneth Perla Velasquez (Mother), his former wife, alleging that the child was in Maryland, seeking the return of the parties’ minor child, to El Salvador, from the United States where the Mother allegedly wrongfully removed and retained him on or after April 27, 2014. The Mother filed a Motion to Dismiss or, in the Alternative, to Transfer Venue. The district court granted the motion, transferring the case to the United States District Court for the Southern District of Texas in Houston. The court found that the Mother and the Child lived in Houston since moving to the United States, except for a period of time from Spring 2015 until early January, 2016 that they spent in Maryland for Respondent to care for her mother, Sandra Velasquez, who lived in Maryland.  The district court observed that 22 U.S.C. § 9003(a) provides that a person seeking a child’s return “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.” The district court pointed out that section 9003(a) clearly confers jurisdiction; whether § 9003(b) pertains to jurisdiction or venue is less clear. It found after a hearing that the Child was in Texas on January 11, 2016, when Petitioner filed suit; and the parties agreed that “located” refers to where the Child was on January 11, 2016. Located” under ICARA does not require a showing of residency but contemplates the place where the abducted children are discovered. Regardless whether 22 U.S.C. § 9003(b) pertains to jurisdiction or venue, the proper place for this proceeding to have been filed was Texas, not Maryland. See 22 U.S.C. § 9003(b). The district court exercised its jurisdiction to transfer a civil action to another district or division pursuant to 28 U.S.C. § 1404(a), for the convenience of parties and witnesses, in the interest of justice.

O.A. v D.B., Slip Copy, 2016 WL 3748779 (Table), 2016 N.Y. Slip Op. 51089(U) (Fam. Ct.,2016) [Norway] [New York Family Court][Petition Denied]

In O.A. v D.B., Slip Copy, 2016 WL 3748779 (Table), 2016 N.Y. Slip Op. 51089(U) (Fam. Ct.,2016) Petitioner Father, O.A., a Norwegian citizen, filed a petition in Family  Court for the return of his daughters, D.A.P. and D.P. to Norway. The petition was brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (1343 UNTS 89, TIAS No. 11, 670, 1343 [1980]), and its domestic implementing legislation, the International Child Abduction Remedies Act, 42 USC §§ 11601. Respondent mother, D.B., an American citizen, opposed the petition and argued that a return of the family to Norway will subject the subject children to a grave risk of harm because of the repeated domestic violence petitioner inflicted upon respondent. Respondent also alleged that some of the said domestic violence incidents occurred in the presence of the eldest subject child. The Court held a hearing and found that the petitioner had established, by a preponderance of the evidence, each required element under the Hague Convention. It also found that  respondent failed to establish that the subject children would be subjected to a grave risk of harm, psychologically or physically, if they return to Norway and granted the petition.

Comment: 

        It appears to us that the Family Court, a court of limited jurisdiction, lacked subject matter jurisdiction to hear the petition. 

A petition for the return of a child commencing a civil action for the return of a child must be filed "in any court which has jurisdiction of such action." 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). The New York State Supreme Court has jurisdiction to hear these proceedings. N.Y. Const, art VI, § 7[a].  On the other hand, the Family Court is a court of limited jurisdiction, whose jurisdiction is proscribed by Article VI, § 13 of the New York State Constitution. It has not been conferred with jurisdiction under  Article VI, § 13 of the New York state constitution to determine such cases. 

A court hearing a Hague Convention proceeding must have jurisdiction of the action and must be authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). Family Court is not authorized to exercise such jurisdiction. While 22 U.S.C. § 9003, formerly cited as 42 USC § 11603, grants original  jurisdiction of these proceedings to State and federal district courts, it does not grant jurisdiction to state courts of limited jurisdiction, such as the family court and surrogates court, nor does it purport to do so. Domestic Relations Law §77-a, the Uniform Child Custody Jurisdiction and Enforcement Act, which provides that a “court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination”, does not authorize the commencement of a civil action for the return of a child.


It appears that the Family Court lacks subject matter jurisdiction to hear Hague Convention cases. This has been confirmed by the U.S. Court of Appeals for the Second Circuit, which has held that " [t]he phrase “in any court which has jurisdiction of such action,” 42 U.S.C. § 11603(b), underscores that while § 11603(a) confers jurisdiction in a particular federal forum (i.e., in United States district courts), it does not confer jurisdiction in particular state courts (e.g., a family-law court; a juvenile court; or a court of general jurisdiction); the appropriate state forum for an action under the Hague Convention is an issue of state law. The court in which the petition is filed must also be “authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”  Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). See footnote 25 

Neumann v Neumann, 2015 WL 3661907 (E.D. Michigan, 2016) [Mexico] [Federal & State Judicial Remedies] [Stay Pending Appeal Denied]

In Neumann v Neumann, 2015 WL 3661907 (E.D. Michigan, 2016) on May 17, 2016, the district court granted the petition for return in part and ordered Respondent Julie Neumann to return two of the three minor children, JSN and MKN, to Mexico by June 30, 2016.  Julie filed a motion to stay the Court’s return order pending appeal. The Court applied the four traditional stay factors which guide the Court’s analysis: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013). The Court denied Julie’s motion, concluding that none of the four factors relevant to the appropriateness of a stay weighed in favor of issuing one here.

Hernandez v Cardoso, 2016 WL 3742858 (N.D. Ill, 2016) [Mexico] [Grave Risk of Harm] [Petition denied]

In Hernandez v Cardoso, 2016 WL 3742858 (N.D. Ill, 2016) Petitioner John Hernandez petitioned for the return of his son, AE, to Mexico. It was undisputed that Petitioner established a prima facie case. The petition was denied because there was a grave risk that return of AE to Mexico would expose him to physical or psychological harm. During the hearing, both Hernandez and Cardoso testified that they both used physical discipline on the children, but the parties dispute whose discipline was more forceful. Cardoso testified that Hernandez would hit her in front of the children “a lot” and that he wanted the children to watch him hit her. She would ask him to let the children leave the room when he was hitting her, and he would say “I want the children here. I don’t want them to go.” Cardoso testified to an incident where Hernandez slapped, kicked, and hit her with a wooden board in front of their daughter. When she tried to get away, Hernandez broke through a window, dragged her by her hair, and then raped her.  She testified that he would “always do that [rape her] when he would hit” her because “[t]o him it was like to make me happy.” The Court observed that under the law of this circuit, credible testimony of spousal abuse, carried out in the presence of the child at issue, supports a finding that return of the child to the abuser poses a grave risk of at least psychological harm. Khan v. Fatima, 680 F.3d 781, 786 (7th Cir. 2012). Although AE’s verbal expression about the effect of witnessing Hernandez hit Cardoso was limited (he felt “sad”), the Court observed a significant change in demeanor when AE discussed Hernandez, the domestic violence, and the possibility of returning to Hernandez’s custody. The Seventh Circuit has rejected the notion that courts should consider whether the petitioner’s country of residence can adequately protect the child. Khan, 680 F.3d at 788. “If handing over custody of a child to an abusive parent creates a grave risk of harm to the child, in the sense that the parent may with some nonnegligible probability injure the child, the child should not be handed over, however severely the law of the parent’s country might punish such behavior.” Van De Sande v. Van De Sande, 431 F.3d 567, 571 (7th Cir. 2005). Even where the petitioning parent has not seriously physically injured the child in the past, a “propensity for violence,” coupled with “the grotesque disregard” for child welfare demonstrated by committing spousal battery in the presence of children, indicates a risk that the petitioning parent will one day “lose control and inflict actual physical injury” upon the child. Van De Sande, 431 F.3d at 570.

Gonzalez v Pena, 2016 WL 3654283 (D. Az, 2016) [Mexico] [Grave Risk of Harm] [Petition Denied]

In Gonzalez v Pena, 2016 WL 3654283 (D. Az, 2016) Gonzalez was a Mexican citizen residing in Mexico. Pena was a Mexican citizen residing in Scottsdale, Arizona. The parties were the parents of two Children: J.P., born in 2007, and A.P., born in 2005 in Scottsdale. In 2012 Gonzalez moved to Nayarit, Mexico with the Children. Pena continued to reside in Scottsdale and visited the Children in Mexico. There were no court orders dictating the parties' parenting time. On June 7, 2015, Gonzalez agreed that the Children could visit Pena in Scottsdale. The parties agreed that Pena would return the Children to Mexico by August 6, 2015.. Approximately one week before the Children were to be returned to Mexico, A.P. informed Pena that she had been sexually abused by Gonzalez's live-in boyfriend. As a result, Pena decided to not allow the Children to return to Mexico.  The district court found that Gonzalez established a prima facie case for return. Although Pena's retention was wrongful, the Court found he had met his burden of showing that returning the Children to Mexico presents a “grave risk” or would be an “intolerable situation” and denied the petition.  Sexual abuse most  constitutes a ‘grave risk’ of physical or psychological harm.” Ortiz v. Martinez, 789 F.3d 722, 728 (7th Cir. 2015). The evidence clearly and convincingly established that Gonzalez's live in boyfriend sexually abused A.P. at least once. Moreover, Gonzalez's stated that she did not believe any abuse could have occurred because she had the only key to the bedroom. At one point, Gonzalez stated that she believed only “touching” had occurred, “not sexual abuse.” And she stated that she kicked her boyfriend out of the house not because she believed any abuse had occurred, but because she wanted the “situation to clarify.” Notably, not once during her testimony did Gonzalez state that she would take any steps to protect the Children from abuse if they returned to Mexico. The evidence also demonstrated that the Children had already suffered psychologically from the abuse. A.P. has been diagnosed with post-traumatic stress disorder, and J.P. had been experiencing anger issues with the incident. A.P. had experienced some depression, and experiences trouble sleeping and nightmares. The Court found separating the Children would significantly aggravate their emotional state. 

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.”). 

Tann v Bennett, --- Fed. Appx. ----, 2016 WL 2753994 (2d Cir .,2016)[United Kingdom][Petition denied] [Age & Maturity]

In Tann v Bennett, --- Fed. Appx. ----, 2016 WL 2753994 (2d Cir .,2016) the Second Circuit, in a summary order, affirmed a judgment which denied the petition of Lisa Tann, a citizen of the United Kingdom who resided in Northern Ireland and was the mother of now 14–year–old J.D., dismissing her petition for J.D.’s repatriation and allowing J.D. to remain in the United States with respondents George Alan Bennett and Miranda Bennett, J.D.’s father and stepmother, pending a custody determination by New York State. It rejected Tann argument that the district court erred in relying on J.D.’s objection to returning to Northern Ireland in denying her petition. It observed that Article 13 of the Hague Convention “permits a court to refuse to order the return of [a wrongfully retained] child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Blondin v. Dubois, 238 F.3d at 166. Whether a child is “old enough and mature enough” for his “views to be considered” is a question of fact, as is the determination that a child actually objects to returning to his country of habitual residece. It pointed out that it reviews de novo the district courts interpretation of the Hague Convention and its application to the facts it has found, and the courts underlying factual determination only for clear error. 
The Court found no clear error in the district court’s conclusion that J.D. had “attained an age and degree of maturity at which it [wa]s appropriate to take account of [his] views.” Hague Convention, art. 13. After observing then nearly thirteen-year old J.D.’s responses and demeanor during an in camera interview, the district court found the child “to be a very intelligent and decent young man,” and concluded that “J.D.’s desire to remain in New York should be respected” pending resolution of the state custody proceedings. In so ruling, the court implicitly found J.D. sufficiently mature for the exception to apply. “This finding, relying as it (in part) did on the Court’s personal observations of [J.D.], is of the sort peculiarly within the province of the trier of fact and is entitled to considerable deference.” Nothing in the transcript of J.D.’s in camera interview suggested that the court’s maturity finding was clearly erroneous. Because the Magistrate Judge was in the best position to gauge J.D.’s maturity level, it did not disturb his finding.
The Second Circuit rejected the argument that J.D. expressed only a “preference” to stay in the United States, as opposed to a specific objection to returning to Northern Ireland, the record shows otherwise. J.D. testified that (1) he did not always feel safe in Northern Ireland, (2) he “would really feel bad” if he were returned, and (3) he might hurt himself or others if he was forced to return. Nor did it find error in the district court’s refusal to consider that respondents’ wrongful retention of J.D. contributed to J.D.’s preference for living in the United States. Nothing in its precedent required such consideration. Rather, its precedent instructs, without qualification, that “a court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.” Blondin v. Dubois, 238 F.3d at 166.

Souratgar v Fair, 2016 WL 1168733 (2d Cir., 2016) [Costs & Expenses] [Clearly inappropriate]

In Souratgar v Fair, 2016 WL 1168733 (2d Cir., 2016) the Second Circuit reversed a judgment ordering Respondent Lee Jen Fair to pay to the prevailing petitioner-appellee, Abdollah Naghash Souratgar, $283,066.62 in expenses under the International Child Abduction Remedies Act, which directs district courts to issue such an order “unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3).  It held that the determination requires district courts to weigh relevant equitable factors, including intimate partner violence. Having reviewed all relevant equitable factors, it concluded that, because the respondent showed that the petitioner engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence, and because there were no countervailing factors in the record in favor of the petitioner, such an award would be “clearly inappropriate.” 
After Lee departed Singapore, Souratgar filed a petition in the Southern District of New York seeking the return of Shayan to Singapore as provided by the Hague Convention and ICARA. After a hearing the district court granted the petition after concluding that Souratgar had established a prima facie case under the Hague Convention and that Lee had failed to prove either of her two asserted affirmative defenses. See Souratgar I, 2012 WL 6700214, at *4–17. Lee appealed, and a the Court affirmed the judgment. Souratgar II, 720 F.3d at 100. Souratgar then moved in the district court for an order directing Lee to pay his expenses related to Shayan’s return to Singapore. Lee argued that an order directing her to pay Souratgar’s expenses would be clearly inappropriate for two reasons: (1) “Souratgar’s past abusive behavior” against Lee and (2) Lee’s “inability to pay.”  The district court determined that neither argument was persuasive. 

Lee had argued that Article 13(b) should apply as a defense to return because, if returned to Singapore, Shayan would face a grave risk of physical and psychological harm due to Souratgar’s violence. The district court ultimately disagreed, finding no risk of physical or psychological harm to Shayan.  In coming to this conclusion, the district court considered and made numerous factual findings about each party’s allegations of abuse at the hands of the other. 

The district court considered Lee’s allegations that Souratgar: (1) on May 31, 2008, when Lee was pregnant, “hit and kicked her on her head and body,” ; (2) in March 2009, “struck her multiple times on her right shoulder while the child was breastfeeding in her arms,” ; (3) during an argument in late 2009 or early 2010, “took the child out of her arms and started to beat her on the head and back,” ; (4) on January 5, 2010, followed Lee to a neighbor’s house and pulled her back into the marital home, where Souratgar “continued to beat her” causing “scratches and redness on her arms where he had grabbed her,” ; (5) on August 15, 2011, when Lee met Souratgar at his office to pick up packages that belonged to her, “pulled [Lee’s] hands and also pushed” her, from which she “suffered some bruises and scratches on” her chest and hands,; (6) on November 22, 2011, chased Lee by car, attempting to overtake her vehicle “in a reckless and dangerous manner,” and (7) “forced [Lee] to engage in certain sexual acts,”  The district court discredited some of these allegations, including the allegation of sexual assault, but found most of them to be credible. The district court made a factual finding that Souratgar perpetrated repeated acts of intimate partner violence against Lee.

  By contrast, the district court considered Souratgar’s allegation that Lee “had tried to attack him with a knife and chopper a few times,” but found Souratgar’s “account to be exaggerated and not credible. Nowhere in the district court’s decision is there any other suggestion that Lee had committed any violence, nor have we found any in our independent review of the record.

The Second Circuit observed that   ICARA’s presumption of an award of expenses to a prevailing petitioner is subject to a broad caveat denoted by the words, ‘clearly inappropriate.’ “ Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.2004). This caveat retains “the equitable nature of cost awards,” so that a prevailing petitioner’s presumptive entitlement to an award of expenses is “subject to the application of equitable principles by the district court.”  Generally, in determining whether expenses are “clearly inappropriate,” courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition. Where, as here, the respondent’s removal of the child from the habitual country is related to intimate partner violence perpetrated by the petitioner against the respondent, the petitioner bears some responsibility for the circumstances giving rise to the petition. In line with this reasoning, district courts in other circuits have concluded that “family violence perpetrated by a parent is an appropriate consideration in assessing fees in a Hague case.” 

The Second Circuit held that the district court was therefore correct to consider Souratgar’s unilateral violence in its determination of whether to order Lee to pay expenses under ICARA. See Souratgar III, 2014 WL 704037, at *9. However, it  concluded that the district court exceeded its discretion in awarding expenses to Souratgar in light of its fact-finding and its related analysis of the relevant equitable factors. In the course of reviewing the petition, the district court made explicit factual findings that Lee had not committed the violent acts alleged by Souratgar but that Souratgar had repeatedly perpetrated violence against her. Souratgar I, 2012 WL 6700214, at *11. But because Lee had fled the marital home to her sister’s home within Singapore before fleeing the country, the district court found that she “ha[d] not established that the past abuse of her was causally related to her decision to leave Singapore.” Souratgar III, 2014 WL 704037, at *9. The Second Circuit differed with the district court’s conclusion on this point. First, this finding was belied by the record: The district court found that Souratgar’s violence toward Lee did not stop when she left their home. See Souratgar I, 2012 WL 6700214, at *9, *11 (discussing violent incidents in August 2011 and November 2011, after her May 2011 departure from the marital home). Second, it found that Lee’s testimony showed, and Souratgar did not genuinely dispute, that her departure was related to Souratgar’s history of intimate partner violence. Therefore, it found that Souratgar bears some responsibility for the circumstances giving rise to the petition.

Having reviewed all relevant equitable factors, because the respondent had shown that the petitioner engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence, and because there were  no countervailing factors in the record in favor of the petitioner, the Second Circuit held that an award of expenses would be “clearly inappropriate.”

In so holding, the Court expressed no opinion about circumstances beyond the facts of this appeal, particularly where countervailing equitable factors are present. It specified that it did not attempt to catalog the possible countervailing equitable factors that a district court may properly weigh. This task is better left to the district courts to develop on a case-by-case basis so that they retain “broad discretion” in applying equitable principles to implement “the Hague Convention consistently with our own laws and standards.”  As a matter of clarification, it agreed with the district court that a respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA. It noted that intimate partner violence in any form is deplorable, but found that it need not determine in this matter what quantum of violence must have occurred to warrant a finding that fees are “clearly inappropriate,” given the repeated violence established in the record here. Those determinations it left to be resolved as they arise in future cases.

  Given the record in this case, rather than remand, it could not envision any scenario where an award of expenses would not be clearly inappropriate, and therefore reversed the order and vacated the judgment. 

Sanguineti v Boqvist, 2016 WL 1466552 (SDNY, 2016) [Canada] [Costs & Expenses]

In Sanguineti v Boqvist, 2016 WL 1466552 (SDNY, 2016) after the Petition of  Katherine Sanguineti  seeking the return of her son, BAB, to Canada  was  granted, she moved for attorney’s fees and other expenses, seeking a total amount of $195,291.80. The Court awarded fees of $106,642.00, attorney’s costs of $1164.00 and Out of Pocket expenses of $2851.00. The district court observed that ICARA provides that a court “shall” award such expenses, unless the respondent establishes that an award “would be clearly inappropriate.” 22 U.S.C. § 9007. There is a presumption in favor of awarding necessary costs to a prevailing petitioner in a return action. The court has the obligation to determine whether the requested fees and costs were ‘necessary’ to secure the child’s return. The burden of proving that costs are “necessary” falls upon the petitioner.

          Petitioner’s counsel, a solo practitioner, sought attorney’s fees of $186,152.10, which she divided into two categories: 450.4 hours at $400 per hour for attorney services, and 44.9 hours at $129 per hour for what she described as “Secretarial and Paralegal Services.” The Court noted that in return cases under the Hague Convention, the “ ‘lodestar’ approach is the proper method for determining the amount of reasonable attorney’s fees.” Knigge v. Corvese, No. 01 cv 5743 (DLC), 2001 WL 883644, at *1 (S.D.N.Y. Aug. 6, 2001). In calculating the lodestar, or “presumptively reasonable fee,” the district court must first determine the reasonable hourly rate for the attorney’s work, which is the “rate a paying client would be willing to pay.” Arbor Hill, 522 F.3d at 190. As a starting point in determining the reasonable hourly rate, the court should consider the “fees that would be charged for similar work by attorneys of like skill in the area.”  

 Under petitioner’s fee agreement with her attorney the hourly billing rate was $250.00 per hour. However, the attorney contended that her reasonable hourly rate was actually $400.00 per hour, and that she charged petitioner a reduced rate due to petitioner’s exigent circumstances.  The both stated that they had agreed that if petitioner were to prevail in the present action, her attorney would seek fees and costs at her regular hourly rate of $400.00 per hour. The Court held that even when a specific hourly rate is included in a fee agreement, a prevailing party’s attorney may seek fees at the market rate for similar services by lawyers of reasonably comparable skill, experience, and reputation. Awarding attorney’s fees at a higher rate than what was provided for in a fee agreement does not confer a benefit onto a prevailing party.

          The Court held that the attorney’s reasonable hourly rate would be set in the same way that attorneys’ rates are typically set in such cases: by determining the rate a paying client would be willing to pay, and taking account all relevant factors, including “the current market rate in the Southern District of New York ... for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter, 457 F.3d at 233. The Court concluded that a rate of $335.00 per hour was reasonable. The Court also found reasonable $129 per hour for work completed by her that constituted secretarial and paralegal work. The Court found that petitioner was entitled to $142,189.60 in attorney’s fees ($136,713.50 for attorney time, $5,276.10 for non-attorney time, and $200 for her initial one-hour consultation).

          The court awarded counsel sums for copies and filing fees, and awarded petitioner sums for translation costs, trial transcripts which the Court required the parties to obtain in order to reference them in post-trial briefing, travel, food and lodging, but denied the request for fees for mediation services, expenses for the care of CFPC, petitioner’s child not the subject of the current action, and medical care for BAB,.

          The court pointed out that the “clearly inappropriate” standard permits an award of expenses “subject to the application of equitable principles by the district court.” Ozaltin, 708 F.3d at 375. Courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition. Souratgar, __ F.3d __, 2016 WL 1168733, at *6. A respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.. The Court determined that respondent bore the bulk of responsibility for the circumstances giving rise to the fees and costs associated with the petition. Weighing against an award of necessary expenses was respondent’s alleged financial constraints. He contended that he had a net worth of $603, excluding legal bills. The Court concluded that only a modest reduction in petitioner’s award was appropriate. The Court was mindful that “an expenses award that is greater than a respondent’s total assets” requires, at the very least “a reasoned explanation.” Souratgar, __ F.3d __, 2016 WL 1168733, at *8 n.3. It concluded that an award greater than respondent’s total assets was  justified because respondent had no limitations on his earning ability.  His background, education, and work experience all indicated that he had significant earning potential in the future. Respondent’s spending patterns weighed against a determination that an award of necessary expenses would be “clearly inappropriate.” He spent at the very least, $7,977 every month on expenses, which far exceeded his monthly income and far exceeded what was necessary for respondent’s day-to-day living expenses. Respondent’s inability to pay was predominantly caused by his own spending far above bare necessities. The Court concluded that respondent’s own excessive spending should not serve as a complete bar to petitioner’s recovery. Taking into account respondent’s financial circumstances—including his remaining assets, his liabilities, and his ability to earn a substantial income—as well as all the other equitable factors previously discussed, the Court concluded that a reduction in the total fee award  by 25% was appropriate. The Court was  also satisfied that such a reduction would ensure that the award of necessary expenses does not impede respondent from visiting and caring for BAB in the future. Norinder v. Fuentes, 657 F.3d 526, 536 (7th Cir. 2011) 

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.