Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) [israel] [Habitual Residence] [Petition denied]

In Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) the Petitioner  Father was an Israeli citizen and resided in Israel. The Mother was a citizen of both the United States and Israel. The parties were married in Israel and were the parents of a son, O.N.C., born December 6, 2009 in Israel. The father  had substantial debt and an extensive criminal record in Israel which resulted in a Stay of Exit Order placed on his visa which prohibited him from leaving Israel. Both parties testified that their plan was for Mother to move to the U.S. with O.N.C., find a place to live, enroll O.N.C. in school, and work to help Father pay off the debts which were preventing him from leaving Israel. Father would join them once his debts were paid off and they would live together in St. Louis. According to Mother, they decided to move because their financial situation was difficult and they did not see a future for themselves and their son in Israel. It was Father’s testimony that their intention was to live in the United States for three to five years to save enough money to buy a house in Israel. With the agreement of Father, Mother and O.N.C. traveled to St. Louis, Missouri on December 3, 2012.  Over the next two years, Mother and O.N.C. returned to Israel twice, each time on round-trip tickets.  Mother filed for divorce in St. Louis in July 2014 and on March 13, 2015, she was granted a divorce and sole custody. The father filed his district court complaint on November 25, 2015. The district Court observed that this case turned on whether O.N.C. s habitual residence changed to the United States. It noted that in the Eighth Circuit, factors relevant to the determination of habitual residence include the settled purpose of the move to the new country from the child’s perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.” Stern v. Stern, 639 F.3d 449, 452 (8th Cir. 2011).  Habitual residence is determined by examining “past experience, not future intentions.” Sorenson v. Sorenson, 559 F.3d 871, 873 (8th Cir. 2009) “The ‘settled purpose’ of a family’s move to a new country is a central element of the habitual residence inquiry.” Barzilay, 600 F.3d at 918. However, “settled purpose “need not be to stay in a ... location forever. What is crucial is that the purpose “have a ‘sufficient degree of continuity to be properly described as settled.’ ”  Settled purpose must be from the child’s perspective, although parental intent is also considered. 

The district court found that O.N.C.’s habitual residence had changed to the United States and denied the petition. It found that he had experienced a clear change in geography and a substantial amount of time, over three years, had passed since the move to the United States. The evidence demonstrated that both Mother and Father decided to have O.N.C. reside in the U.S. Settled purpose need not be to stay forever so long as there is a “sufficient degree of continuity to be properly described as settled.”  The last three years and eight months—more than half his life—had been spent in St. Louis, Missouri.. There was ittle evidence in the record concerning O.N.C.’s connections with Israel, while it appeared that O.N.C. had considerable connections with his current environment. He enjoyed a close relationship with his three maternal uncles, and he and Mother found a community with whom they socialized. The Court concluded that as of October 2014, O.N.C. had been in Missouri long enough to have a “sufficient degree of continuity to be properly described as settled” from his perspective, and that the parties intended to relocate to the United States and establish O.N.C.’s residence here. Prior to the move, the parties applied together for approval of O.N.C.’s naturalization application for United States citizenship. It was understood by the parties that Father would not be able to leave Israel until his debts were paid off and the stay order on his visa was lifted. Until then, their intent was always for Mother and O.N.C. to go ahead of Father and settle in the United States. The best evidence of this intent was the actions taken by the parties. Mother and O.N.C. traveled to the U.S. despite the known issues surrounding Father’s visa. Mother secured full-time employment, enrolled O.N.C. in school, bought and registered a car, applied for a Missouri driver’s license, and paid taxes. She eventually rented an apartment for them. The facts demonstrated that Mother was establishing a life here for the family, and for the next two years, the parties continued to act in furtherance of their plan. Not until April of 2014, when the marriage deteriorated, did Father claim the relocation had been intended to be temporary.  The change in geography, passage of time since the move to the United States, O.N.C.’s acclimatization to his current environment, the degree of settled purpose in his environment from his perspective, and the shared intent of the parties all pointed to the U.S. as O.N.C.’s habitual residence.

Adamis v Lampropoulou, --- Fed.Appx. ----, 2016 WL 4470959 (Mem) (2d Cir.,2016)[Greece] [Consent][Petition denied]

In Adamis v Lampropoulou, --- Fed.Appx. ----, 2016 WL 4470959 (Mem) (2d Cir.,2016) the Second Circuit affirmed a judgment which denied Nikolaos Adamis petition for return of his son, D.A., to Greece following his removal to the United States by D.A.’s mother, appellee Fotini Lampropoulou. The district court found that Adamis had consented to the removal of D.A. from Greece, which meant that the move was not “wrongful” under the Hague Convention. The Second Circuit observed that “In cases arising under the [Hague] Convention, a district court’s factual determinations are reviewed for clear error. However, the district court’s application of the Convention to the facts it has found, like the interpretation of the Convention, is subject to de novo review.” See Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005) When a finding is based on a credibility determination, “particularly strong deference should be granted to the finding in light of the factfinder’s unique ability to assess the witness.” Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003). It held that the district court’s finding that Adamis consented to D.A.’s removal was not clearly erroneous. The district court relied on the testimony of Lampropoulou, D.A., and D.A.’s stepsister, Toula. Their statements were corroborated by a recorded conversation that occurred approximately ten days before Lampropoulou moved with D.A. to the United States. The conversation confirmed that Lampropoulou could live in the United States with D.A., and could “come and go” to Greece with D.A. Crediting Lampropoulou’s testimony, the district court found that there were no further conversations between the couple about the move until after Lampropoulou had already arrived in the United States, and that Adamis’s explanation for the recording – that he had consented only to a short trip to New York – was not credible. The Court deferred to those credibility findings which, particularly in conjunction with the recorded conversations, were not clearly erroneous.

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.