In Custodio v Samillan, 2016 WL 7030356 (8th Cir., 2016) Custodio and Torres, were Peruvian citizens, who had two children, 16-year-old M. and 15-year-old G. When they divorced the Peruvian court issued a custody order pursuant to which the children lived with their mother for the majority of the year. In November 2013, the Peruvian court authorized M. and G.’s travel to St. Louis with Torres, requiring that they return by March 24, 2014. Torres married an American citizen, and the couple had since had a son. After Torres failed to return the children to Peru by the deadline the Peruvian court issued four orders compelling Torres to return M. and G. to Peru. The district court held a three-day evidentiary hearing. The district court denied the petition. It refused to order return because Torres established the mature child affirmative defense.
The Eighth Circuit affirmed. It agreed with Torres that the appeal was moot as to M. because he had reached 16 years old and the Hague Convention no longer applied to him. Hague Convention art. 4. It noted that the State Department’s interpretation of the Convention’s age limitation provision was in accord with Torres view which was supported by the official Hague Conference Explanatory Report. Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 77 (1981), https://assets.hcch.net/upload/expl28.pdf.
Torres raised the mature child defense under Article 13 of the Convention. The Eighth Circuit noted that in order to carry her burden on this defense, Torres had to must establish by a preponderance of the evidence (1) that the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “that the child objects to being returned.” Hague Convention art. 13. The child’s objections can be the sole reason that a court refuses to order return, but when they are, the “court must apply a stricter standard in considering a child’s wishes.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007). The sole issue on appeal was whether the district court properly considered G.’s objections. The Court concluded that the question of whether a child objected to return is subject to clear error review. Such deference was appropriate here where the district court observed G. testify twice: first, in chambers outside the presence of the parties and lawyers and later, in open court and subject to cross examination. The district court found that G. wished to remain in St. Louis because he did not want to separate from his mother, stepfather, and two brothers. He did not want to return to Peru because he “does not feel safe with his father.” In chambers, G. said he was afraid of his father, who was “very aggressive” and had previously struck him and his brother. The district court also observed that G. liked his school in the United States and had many friends, whereas he disliked his Peruvian school and had no real friends there. The court found G. to be a “very thoughtful and intelligent” young man whose testimony represented his “genuine thoughts and feelings.”
The Eighth Circuit rejected Custodios argument that the district court improperly considered objections relevant only to a custody determination. He contended that a wrongfully removed child may not object based on a wish to live with a particular parent or on circumstances that are the product of the wrongful retention, as decisions based on these objections would embroil the court in the underlying custody dispute. The Court pointed out that with regard to the mature child defense, the Explanatory Report makes clear that a mature child’s views on return can be “conclusive.” The Explanatory Report “does not suggest the child’s interpretation of [his] ‘own interests’ is invalid if it is based” on custody considerations. The drafters of the Convention simply deemed it inappropriate to return a mature child ‘against its will—whatever the reason for the child’s objection. It held that the district court did not err in considering objections that may also be relevant to a custody proceeding. G.’s testimony included particularized objections to returning to Peru. Based on these facts, the Court held that district court did not clearly err in finding that G.’s statements constituted an objection within the meaning of the mature child defense.
The Eighth Circuit rejected Custodio’s argument that the district court abused its discretion in refusing to order return. He argued that allowing G. to remain in the United States improperly ignored the Peruvian court’s custody orders, which were entitled to deference and comity in this court. The Eight Circuit observed that even though Torres met her burden of proving the mature child affirmative defense applies, the district court has the discretion to refuse to apply the defense and order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child. District courts may decline to apply a defense where doing so would reward a parent for wrongfully removing or retaining the children in violation of a Contracting State’s custody orders. It held that while Torres’ actions were concerning, they did not compel a finding that the district court abused its discretion in refusing to order return. The district court’s decision to respect 15-year-old G.’s opposition to returning to Peru and desire to remain in the United States was not an abuse of discretion. The court acted within its discretion in deferring to the objections of an undisputedly mature child. The district court’s consideration of a mature child’s views may but need not be affected by the wrongful actions of his or her parent.
In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking return of her two minor children, MV and GV, to Mexico, their habitual residence. After the Court adopted the Magistrate Judge’s partial Report and Recommendation, which concluded that Petitioner met her burden of establishing a prima facie case for return of MV and GV under the Convention the issues remaining for decision were whether the grave risk and age and maturity exceptions or defenses under Article 13 of the Convention applied.
On August 2, 2016, after a hearing, a Magistrate Judge issued a report in which she concluded that Respondent failed to establish the grave risk exception by clear and convincing evidence. However, the magistrate judge concluded that MV and GV were of sufficient age and maturity for their wishes to be taken into account. Petitioner filed an Objection to the Report and recommendation, arguing that the Court should reject the magistrate judge’s recommendation that the Court deny the Petition on the basis that the age and maturity exception applies. The Court observed that pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the report and recommendation, Petitioner’s Objection, and the pertinent portions of the record, the Court concluded that it should be adopted and denied the petition for return.
In Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014) the District Court granted the petition of the mother, Daniela Smedley (“Daniela”) for the return of her two children, who had been retained in the United States by their father, Mark Smedley. On July 13, 2011, Daniela, A.H.S. and G.A.S. returned to Bamberg Germany where the children were born and remained there with them. Mark filed a petition under the Hague Convention in Germany for the return of the children to the United States which was denied, ostensibly on the basis that returning them to the United States would expose them to a serious risk of physical or psychological harm. The District Court of Bamberg found that one of the exceptions in Article 13 precluded the children’s return to the United States. It also appeared that the District Court of Bamberg found that neither child wanted to return to the United States. Mark appealed the decision. The Bamberg Higher Regional Court rejected Mark’s appeal. This proceeding was commenced after Mark refused to return the children to Germany after visitation in the United States. The district court rejected Marks argument that it should disregard the Bamberg Higher Regional Court’s findings and conclusions, find that Daniela’s retention of the children in Germany in August 2011 was wrongful, and therefore conclude that the United States was the children’s habitual residence. The district court observed that the Fourth Circuit has recognized that in determining the amount of deference due to a foreign court’s decision, “ ‘judgments rendered in a foreign nation are not entitled to the protection of full faith and credit.’ ” Miller, 240 F.3d at 400 (quoting Diorinou, 237 F.3d at 142-43). Nevertheless, “ ‘American courts will normally accord considerable deference to foreign adjudications as a matter of comity,’ ” and “ ‘comity is at the heart of the Hague Convention.’ ” Despite American courts’ usual practice of according considerable deference to foreign adjudications, the Ninth Circuit Court of Appeals determined that a court may properly decline to extend comity to a foreign court’s Hague petition determination “if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. In Asvestas, the Ninth Circuit found that a Greek court’s analysis of a prior Hague petition “misapplie[d] the provisions of the Convention, relie[d] on unreasonable factual findings, and contradict[ed] the principles and objectives of the Hague Convention.” After reviewing the translation of the opinion of the Bamberg Higher Regional Court, the court did not find that “ it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. The court, therefore, accorded comity to the opinion.
In Dias v DeSouza, 2016 WL 6821067 (D. Mass) the Court granted the Petition of Marina De Aguiar for the return her thirteen-year-old daughter, to Brazil and found that Petitioner had established the prerequisite for an award of necessary expenses under the fee-shifting provision of the ICARA, 22 U.S.C. § 9007(b)(3). Petitioner filed a motion in which Petitioner requested an award of attorneys’ fees in the amount of $28,697.50 and costs in the amount of $1,004.20, for a total award of $29,701.70. The motion was granted for an amount less than requested by Petitioner. The District Court observed that the primary issues which the Court must resolve in determining whether such an award is appropriate is “first, whether the claimed expenses are ‘necessary,’ and second, whether an order against respondent would be ‘clearly inappropriate.’ ” De Souza v. Negri, No. 14-13788-DJC; 2015 WL 727934, at *2 (D.Mass. February 19, 2015) The burden of proof to establish necessity is upon the Petitioner. The burden to establish that a fee award would be “clearly inappropriate” is upon the Respondent. The Court found that Petitioner had limited financial means. Petitioner’s legal team consisted of a paralegal billed at the rate of $150.00 per hour and two partner level attorneys, one of whom billed at the hourly rate of $400.00 and one of whom was billed at the hourly rate of 375.00. The Court found that the rates charged by these attorneys were reasonable considering the usual price charged for similar services in Boston, but were slightly on the high end for similar services in this area. For that reason, it reduced each of the attorney’s hourly rates by $25.00. It reduced the rate charged for the paralegal to $90.00 per hour, which is in line with the rate charged by a moderately experienced paralegal in Central Massachusetts. The Court agreed with Respondent that there was some overlap between the two attorneys and that the sparsity of detail with regard to services rendered warrantsed a reduction in the amount of the fees. Thus, it reduced each attorneys’ hours by approximately one third. It found all costs ($1,004.20) to have been necessary. Therefore, the total recovery of necessary attorneys’ fees and costs was $18,704.20. The Court found that Respondent failed to establish that an award of attorneys’ fees and costs to Petitioner would be clearly inappropriate.
In Toufighjou v Tritschler, 2016 WL 6122465 (M.D. Florida, 2016) the Magistrate Judge recommended that Plaintiffs motion for attorneys’ fees, costs, and expenses under 22 U.S.C. § 9007(b)(3) be granted in part. Plaintiff incurred $16,675 in legal fees for 44.33 hours expended by Mr. Arenstein, at $600 per hour, and Mr. Min, at $300 per hour. This included costs of $2,155.07, which included expenses for airline, transportation, and lodging incurred by counsel, to attend the hearing ($1,343.83); costs for the filing fee ($400); the special admission fee for Mr. Min to appear pro hac vice ($150); the attorney admission fee for Mr. Arenstein to practice in the Middle District of Florida ($191); the fee for a certificate of good standing for Mr. Arenstein ($18). The Magistrate found that the documented hours were necessarily expended and related to the return of A.R.T. Additionally the costs incurred for travel and lodging constituted necessary expenses. The Magistrate also found that $4,564 in legal fees for 12.40 hours expended by Ms. Kay, at $350 per hour, and 1.60 hours expended by a paralegal at $140 per hour, as well as $1,225 in costs, which included the filing fee ($400) and the fee for a transcript of the evidentiary hearing ($825) were necessarily expended during the action and related to the return of A.R.T. Plaintiff was also entitled to recover $400 for the filing fee and costs are recoverable as fees of the clerk under 28 U.S.C. § 1920(1) Additionally, Plaintiff was entitled to recover the costs incurred for airfare, car rental, and parking related to traveling to Florida to attend the evidentiary hearing and returning A.R.T. to Canada. However, the costs incurred for meals while in Florida were not recoverable, as those costs were not related to the return of A.R.T. Plaintiff’s total allowable expenses amounted to $4,732.02.
The Magistrate rejected defendants argument that she was justified in removing her daughter to Florida, as having no bearing on the propriety of Plaintiff’s claimed expenses. The Court rejected defendants argument that plaintiff’s representation was excessive in light of the straightforward nature of the claims at issue. Defendant did not argue the reasonableness of the rates or hours for Plaintiff’s counsel, only that Plaintiff had too many lawyers because “[o]ne attorney would have been sufficient.” The Magistrate Judge indicated that the cases hold that there is nothing inherently unreasonable about a client having multiple attorneys, and they may all be compensated if they are not unreasonably doing the same work and are being compensated for the distinct contribution of each lawyer. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation. The billing records indicated that the hours requested reflected the distinct contribution of each attorney.
However, the Court found merit to defendants argument that she had no financial means to pay the requested fees. In cases arising under ICARA, the court may reduce a fee award based on the respondent’s financial situation and resulting inability to pay. E.g., Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 (2d Cir. 2016). Defendant averred that she was a stay-at-home mother during her marriage and received no spousal or child support from Plaintiff, from whom she had recently divorced, leaving her without assets or income to pay the requested fees. In light of this the Court found that a reduction was warranted to account for Defendant’s straitened financial circumstances. Plaintiff’s attorneys’ fees were therefore reduced by 25%, for a total award of $15,554.25 in attorneys’ fees; $1,584 in costs; $4,732.02 in expenses for Plaintiff; and $1,343.83 in expenses for Plaintiff’s counsel, for a total award of $23,214.10.
In Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016) the District Court granted the Petition of Maria Alejandra Reyes Ovalle’s Petition for the return of E.L. to Guatemala with his mother. Petitioner was a successful Guatemalan entrepreneur who owned a home and auto mechanic shop in Mixco, Guatemala. Respondent was a divorced United States citizen originally from Guatemala, who owned businesses in the United States and a shop in Guatemala, which was managed by Petitioner’s mother’s half-sister. He was a resident of Hollywood, Florida. In March, 2015, Respondent traveled to Guatemala for eight days to accompany Petitioner to her friend’s wedding. Petitioner became pregnant during this trip. In June, 2015 Petitioner traveled to the United States to visit with Respondent and returned to Guatemala on July 9, 2015. In mid-September, Petitioner was seven months pregnant. Petitioner decided to return to Florida to attempt to make the relationship work. Petitioner agreed to give birth in Florida. Petitioner travelled back to Florida on October 4, 2015, and accepted an engagement ring but never wore the ring. Petitioner who was in the United States on her tourist visa remained in Florida until the end of February, 2016. Petitioner did not close any of her bank accounts in Guatemala, construction continued on her investment property, and she continued to earn income from her business there, with her mother’s assistance in running the daily operations. The parties’ son, E.L., was born on December 17, 2015. Respondent and Petitioner returned to Guatemala on February 26, 2016. On March 1, 2016, Petitioner obtained “Security Measures,” the equivalent of a restraining order, to prevent Respondent from removing E.L. from Guatemala but did not inform Respondent of the Security Measures, even though she told him, that she would not be returning to the United States because she was afraid of losing her son. Petitioner stayed in Guatemala with E.L. and Respondent returned to the United States on March 4, 2016. On March 6, 2016, before he learned of the existence of the Security Measures, Respondent initiated custody proceedings in Florida, and obtained an Order to Pick-Up Minor Child (the “Pick-Up Order”). Respondent, did not tell Petitioner that he had initiated proceedings, or that he had obtained the Pick-up Order. Respondent filed a response in opposition to the Security Measures on March 11, 2016. Between March and July, 2016, E.L. lived with the Petitioner and her parents. Respondent periodically sent money to Guatemala for the baby upon Petitioner’s request. Respondent traveled three times to Guatemala, from April 1-3, May 6-8, and May 29-June 1. During these visits, Respondent visited Petitioner and E.L. at Petitioner’s parents’ house. Respondent did not inform Petitioner about the Pick-Up Order or the scheduled hearing in Florida. Nor did the Respondent seek relief from the Guatemalan Court despite the filing of his response to the Security Measures. Respondent arrived in Guatemala on July 15, 2016 for the childs baptism. The following day, Respondent asked Petitioner to accompany him to drop off an invitation to the baptism. Petitioner, Respondent, and E.L. travelled together in her car to deliver the invitation. At the time, E.L. was asleep in Respondent’s arms. Rather than wake him, Respondent asked Petitioner to take the invitation to the front door. When she did, he got out of the car, placed E.L. in his car seat, and drove off, leaving Petitioner behind. He then traveled by bus with E.L. through Mexico. Five days later, when Respondent and E.L. arrived in the United States, Respondent advised Petitioner that E.L. was with him and that the baby was fine.
The district court observed that to determine habitual residence in the case of an infant,, the Court looks at the parents’ shared intent or settled purpose regarding their child’s residence. Where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem. Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). However, where there is no marital home and an unsettled relationship between the parents, as in this case, the determination of a settled intent becomes more problematic. Furthermore, where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence. The Court noted that the facts were similar to those in Delvoye, supra, and after examining the facts decided that there was no shared intent to reside in either Florida or Guatemala.
The district court concluded that E.L. became habitually resident in Guatemala prior to the time of his removal by Respondent to the United States finding Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) to be instructive. It observed that upon Petitioner’s informing Respondent that she and E.L. would remain in Guatemala, Respondent voluntarily returned to the United States on his planned departure date. Even though Respondent immediately filed a custody proceeding upon his return to the United States, the Court, like the Seventh Circuit in Kijowska, found his efforts were of little relevance. If Respondent believed that Petitioner’s decision to keep E.L. in Guatemala was wrongful, the proper legal remedy was to file his own petition under the Convention, which he did not do. Instead, he returned to the United States and engaged in exactly the type of behavior the Convention is designed to prevent, by filing a custody proceeding in a jurisdiction where he admittedly knew the law would be more favorable to him. The court indicated that the failure to file a Convention petition in and of itself may have been sufficient to have enabled E.L. to establish habitual residence in Guatemala. Further factors weigh in favor of the Court’s determination. Petitioner and Respondent continued to communicate between March and July of 2016, and upon Petitioner’s request, Respondent continued to send money to Guatemala for the baby multiple times. During these communications, Respondent expressed that he missed his son and Petitioner, how much he loved them both and his belief that their relationship could work, and entreated her to return; at the same time that Petitioner made it clear that she did not share the same feelings. Even so, Respondent returned to Guatemala three times between March and July, visiting with E.L. and Petitioner each time. At no time, during any of these visits did Respondent inform Petitioner that he had sought relief from the Florida court regarding custody or that he was attempting to enforce any rights Respondent believed he had been granted by a Florida court. During this period, Respondent was aware that E.L. was living in the same house with Petitioner, his grandparents and uncle, with whom he was bonding. Petitioner was still breastfeeding the child, the child was regularly seen by a pediatrician and attended church with Petitioner and her family. Respondent also did not resist or oppose Petitioner’s plans to baptize E.L. in Guatemala. By the time Respondent abducted E.L. in July, the baby had been living for four months in Guatemala with Petitioner and her family. The Court found hat E.L. did not have a habitual residence until one was established with Petitioner in Guatemala.
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In Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016) on April 15, 2016, the Chief District Judge granted the Plaintiff’s Petition for Return of his Child to Mexico. In the Memorandum the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the child’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the child’s return to Mexico, and the issue was referred a Magistrate who, after a telephonic hearing, orally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. The Petitioner filed an emergency Petition alleging the Respondent did not comply with the order. He requested, inter alia, that a Warrant of Arrest issue to bring the child and the Respondent into Court and that the Court order the child to be delivered immediately to the Petitioner in the United States so that the child may be transported to La Luz, Michoacan, Mexico. After a hearing the Court certified the following factual findings: On April 15, 2016, the Chief District Judge ordered the Respondent to return the child to Mexico, the country of the child’s habitual residence. Subsequently, on May 2, 2016, the undersigned verbally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. Since the trial in this matter, the Petitioner maintained regular contact with the child using the Respondent’s cellular telephone. However, on May 2, 2016, when the Respondent attempted to contact the child, the cellular telephone would not ring. On May 16, 2016, the date the child was to be returned to La Luz, Mexico, the Petitioner visited Respondent’s grandparents, where Respondent previously lived, but the child and the Respondent were not there. The Petitioner made approximately four or five trips to La Luz, Mexico but has been able to locate the child.
The Court found that the Respondent failed to comply with the Order, which ordered the Respondent to return the child to La Luz, Mexico, by May 16, 2016. The Court found no reason to reopen the case for the issuance of provisional remedies requested in the Emergency Petition because federal procedural and state substantive laws supported Petitioner’s requested relief. Instead it found that the Respondent had violated the Chief District Judge’s Order and its Order and Recommended that the Chief District Judge issue a show cause order to Respondent to appear at a date certain before the District Judge to show cause why she should not be held in contempt for failing to obey the Court’s Orders. It also recommended pursuant to Federal Rules of Civil Procedure 70 that “the Clerk of Court issue a writ of attachment to direct the United States Marshals Service to attach the child and deliver the child to the Tennessee Department of Human Services for temporary placement. The Tennessee Department of Human Services shall make the appropriate arrangements with the U.S. Central Authority for the child’s return to Mexico or to Petitioner. The Tennessee Department of Human Services shall coordinate with Petitioner’s counsel and the U.S. Central Authority to effectuate a smooth transfer of the child to Petitioner or to Mexico at an appropriate border station.” It also recommended that the child’s name be placed in the Children’s Passport Issuance Alert Program so that the Petitioner may be alerted if someone applies for the child’s passport.
In Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016) Petitioner Joseph E. Best, Jr. sought attorney’s fees and costs pursuant to 22 U.S.C. § 9001 (formerly 42 U.S.C. § 11601) and 22 U.S.C. § 9007(b)(3) (formerly 42 U.S.C. § 11607(b)(3)) after his petition for an order compelling the return of his minor children to Bermuda was granted. Respondent challenged the motion on the grounds that the custody arrangement governing the children and her removal of them to Erie was still under review by the Supreme Court of Bermuda and therefore an order in favor of petitioner could prove to be prejudicial to her rights in that forum. Consequently, from her perspective awarding attorney’s fees and costs ‘would be clearly inappropriate‘ under 22 U.S.C. § 9007(b)(3). The district court held that this argument had no application to the motion and the court already granted petitioner relief under the Hague Convention. Therefore, respondent failed to show it ‘would be clearly inappropriate‘ to award necessary fees and expenses.
The district court held that Respondent’s violation of the statute virtually triggers an award of reasonable attorney’s fees and costs under 22 U.S.C. § 9007(b)(3), unless respondent establishes that they ‘would be clearly inappropriate.‘ The lodestar approach is the appropriate method for this court to use in determining the amount of reasonable attorney’s fees that should be awarded to the prevailing party. Distler v. Dislter, 26 F. Supp.2d 723, 727 (D.N.J. 1998). Petitioner’s attorney sought $199.72 per hour. The court found this hourly rate to be reasonable. She documented 102.5 hours, which when multiplied by the reasonable hourly rate of $199.72 produced a total of $20,471.30. Respondent failed to challenge petitioner’s request or provide specific reasons as to why an award of this amount would be unreasonable or ‘clearly inappropriate.‘ Accordingly, petitioner’s request for attorney’s fees was reasonable and was approved. Petitioner also sought reimbursement of $2,036.88 in airfare, hotel, and car rental costs. Under 22 U.S.C. § 9007(b)(3), petitioner is entitled to these costs as it was necessary for him (1) to fly to the United States, (2) stay 2 nights in order to attend the hearing, and (3) return with his children to Bermuda. Federal courts routinely have awarded transportation and lodging costs to attend court hearings. See, e.g., Paulus v. Cordero, 2013 U.S. Dist. LEXIS 20198 (M.D. Pa. 2013) (ordering reimbursement of $555.80 for airfare, $619.50 for bus fare, and $122.10 for lodging expenses); Distler, 26 F. Supp. 2d at 728 (awarding $2,422.00 for round trip flight and minor’s airfare for return to his habitual residence) (citing Freier v. Freier, 985 F. Supp. 710, 714 (E.D. Mich. 1997)). Petitioner provided sufficient documentation regarding these expenses and respondent failed to present a persuasive argument suggesting that an award of actual airfare, lodging, and transportation costs would be ‘clearly inappropriate.‘ Accordingly, she was ordered to pay $2,036.88 for his reasonable and necessary costs. Petitioner’s request for $1,407.26, which was charged to petitioner by counsel as actual out of pocket costs also was also approved as necessary costs. However, $250.00 requested for petitioner’s food and miscellaneous costs while in Erie on August 31, 2015, and September 1, 2015, was denied as he would have had to eat and incur similar sundry expenses even in the absence of the hearing.
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In Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) the district court denied Petitioner Roque Jacinto Fernandez’s Petition for Return of his Children to Panama. Petitioner, a Panamanian citizen, and Respondent an American citizen working in Panama, were involved in a romantic relationship. Respondent gave birth to the couple’s twin sons, C.R.F.B. and R.J.F.B., on August 18, 2008. Although Respondent and Petitioner never married, Petitioner’s name was on the children’s birth certificates. In May of 2009, Respondent left Panama with the children and moved to Missouri without Petitioner’s consent. On May 13, 2010, Petitioner filed his first petition under the Hague Convention, seeking the return of the children to Panama. The District Court ordered that Respondent return the children to Panama in September of 2010. 2010 WL 3522134, at *3 (E.D. Mo. Sept. 1, 2010), modified, 2010 WL 5399220 (E.D. Mo. Dec. 23, 2010). As a result of a prior felony conviction he received while living in the United States as a juvenile, Petitioner was unable to obtain a visa and attend the 2010 hearing in person. Pursuant to the Missouri court’s order, Respondent returned to Panama with the children. In Panama, Petitioner initiated custody proceedings and criminal charges against Respondent for the previous removal of the children. Pursuant to the ongoing custody proceedings, Petitioner had visitation rights to visit with the children every other weekend. Because of the contentious relationship between the parents, the Panamanian court designated a local children’s police station as the drop-off and pick-up location for these visits. On February 2, 2014, Respondent and the children flew from Panama to Tampa, Florida. Petitioner was unaware that Respondent and the children had moved to Florida. Before learning that the children were in the United States, and in late January of 2015, the Panamanian immigration authorities informed Petitioner that the children had left Panama nearly a year earlier on February 2, 2014. Petitioner then filed a Hague Convention application in late February of 2015. The United States Department of State provided information regarding the location of the children to Petitioner, eventually disclosing the children’s current location in Tampa, Florida. On August 24, 2016, Petitioner filed his Verified Petition for Return of Children to Panama
The district court found that the petitioner established a prima facie case for return, and found that respondent did not establish the grave risk of harm defense nor the wishes of the child defense. However, it found that the children were wrongfully removed more than one year before the petition and that the children we is now settled in their new home. Hague Convention, art. 12. To fall under this exception, “the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016) It found that during their time in Florida, the children resided in two locations, both in the Tampa Bay area. Both residences were in the same general area. The children built relationships with Respondent’s family members since their arrival in the United States. Although the distance between the children and these relatives prevented daily interaction, the Court found that the children built a meaningful connection with their extended family while living in Florida. Since enrolling in their current school in Tampa in April of 2015, the children attended consistently and earned all satisfactory or excellent marks on their report cards. The elementary school gave the children awards for good behavior and citizenship. The children made friends and participated in extracurricular activities. While living in St. Petersburg, they played in a local t-ball league. Later, at the children’s request, Respondent registered them to play on a club soccer team, for which they travel with their teammates and play competitively. Last summer, Respondent enrolled the children in a Christian summer camp, where the children participated in adventurous activities like rock-climbing and archery. Respondent was an American citizen working in a well-paying job, which Respondent testified partially motivated her move from Panama to Florida. She had been steadily employed since her arrival and has sufficient financial resources to keep a live-in nanny to help with child-care. The Court found that Respondent had a stable career and adequately provides for the children. The Court was not persuaded that Respondent used the concealment tactics alleged by Petitioner. Regardless, if they were used, the Court found that these tactics had not prevented the children from forming a permanent and stable connection to their new environment. The children attended the same school for over a year, were enrolled in school and extracurricular activities in their own names, and had lived in only two homes in the Tampa Bay area since their arrival from Panama. The children were thriving in Florida. The Court believed that the children’s interest in settlement outweighed the other interests that would be served by returning the children to Panama. The Court was deeply disturbed by Respondent’s actions. This was the second time Respondent has removed the children from Panama without Petitioner’s consent. Because Petitioner had been unable to secure a visa to attend the 2010 Hague Convention hearing because of his prior conviction, Respondent likely knew that Petitioner could not travel to the United States to search for the children or participate in person if future custody proceedings were initiated here. While preventing this type of forum-shopping by parents was a major motivation for the enactment of the Hague Convention, the interest in discouraging wrongful removals like that perpetrated by Respondent is not enforced at any cost under the Hague Convention. Lozano, 134 S. Ct. at 1235. The Court found that the children’s interest in settlement outweighed the other interests of the Hague convention because disruption of the stable and permanent connection the children established to their new home would be harmful. The fact that Petitioner may have had a good reason to file his petition over a year after the children’s removal did not negate the harm that would come to the children if they were removed from their new environment.
In Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016) Petitioner Jaimes and Respondent Nasly Ximena Riascos Tapasco (“Riascos”) met in Charlotte, North Carolina in 2006. They moved in together and on July 23, 2009, they had a child, K.J.R. In 2011, one of their family arguments grew into a domestic dispute in which the police were called. Jaimes’s pleaded guilty to the charge. Riascos was a Colombian national and Jaimes was a Mexican national. Although Riascos was in the United States on a visa, Jaimes was here illegally. AS a result of his arrest for domestic violence he departed the country voluntarily, leaving open the possibility of returning to the United States legally in the future. Riascos agreed to allow K.J.R. to return to Mexico with Jaimes and executed a notarized travel authorization to this end. The parties disagreed as to whether K.J.R.’s move to Mexico was intended to be temporary or permanent. Riascos testified that she returned to Mexico in July 2014 because of Jaimes threats to keep the child from her and to celebrate K.J.R.’s birthday. Riascos alleged that although she did not tell Jaimes she was coming to Mexico for K.J.R.’s birthday, she did notify him once she arrived.. She testified that after her arrival she went to Jaimes’s home with his sister because she was afraid to go alone on account of his recent threats. When they arrived, Jaimes allegedly began verbally and physically assaulting Riascos in front of his sister and daughter, throwing K.J.R. onto the bed during the altercation. Riascos testified that it was only after enduring this abuse and hearing how unhappy her daughter was that she decided to leave Mexico with K.J.R. immediately.. According to Jaimes, he was not aware that Riascos was in Mexico on the eve of his daughter’s birthday and he never saw her. He testified that he slept alone at his home and early the next morning his sister called to tell him that K.J.R. was gone.. Jaimes immediately notified the authorities who began a search for the girl, but it was not until November that he received official confirmation that she was residing in Houston, Texas with Riascos.
The district court found that Jaimes and Riascos shared a mutual intent that the United States be K.J.R.’s habitual residence for the first three years of her life. They lived here together as a family with no intention of leaving until Jaimes was faced with immigration difficulties. The question was whether the parties had shared intent for K.J.R. to abandon her habitual residence here and establish a new one in Mexico when she left the United States with her father in October 2012. The Court observed that whether the parties thought that Jaimes might one day return to the United States did not mean that the United States remained the child’s habitual residence. Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011) Because parents will often disagree about what their shared intentions were, once litigation is underway, courts must take account of the parents’ actions as well as what they say. In such cases, context, rather than specific periods of time spent in a particular location, is the key to the concept of habitual residence. Berezowsky, 765 F.3d at 467. When parties argue that their intent was to eventually return rather than to establish a new residence, courts will look to the circumstances of the family’s move to assess parental intent. Acts of permanence such as selling cars, belongings, and homes, as well as the type of belongings brought to the new residence, often indicate the parties’ intention to make a permanent move.
The record indicated that K.J.R. and Jaimes’s move to Mexico was not temporary. Jaimes signed over his tax refunds and bank accounts in America so that Riascos could access the funds after he left; he signed a voluntary immigration departure form, purchased one-way tickets to Mexico City, obtained a written release from Riascos to take the child, and departed with K.J.R. Soon after, he rented and established a home for the family. Although she herself never fully moved to Mexico, up until six months before the abduction Riascos regularly visited K.J.R. and Jaimes for extended periods of time.. During those visits, the three of them lived together under a single roof as a family. K.J.R. never returned to America with her mother after any of her visits. K.J.R.’s bedroom in Mexico was full of all of her belongings, many of which Respondent brought to her there. Furthermore, after K.J.R.’s fourth birthday, Riascos took steps to purchase the property Jaimes and K.J.R. were living in as an investment because it had another apartment attached that the family could rent out. Most importantly, K.J.R. was also enrolled in school in Mexico, which was slated to begin over a year after her fourth birthday. This was sufficient contextual evidence that the parties had a shared intent that Mexico was to be K.J.R.’s habitual residence. The court also found that the record discredited Riascos’s claims that the agreement was for K.J.R. to return to the United States after her fourth birthday. The record suggested that the parents did in fact “jointly develop the intention” that K.J.R. was to abandon her habitual residence in the United States and establish a new habitual residence in Mexico. The district court found that Jaimes established that Mexico was the habitual residence of the child. It then found that under Mexican Law of patria postes Petitioner had rights of custody and that he was exercising those rights at the time of the removal, thus establishing a prima facie case.
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The district court rejected the Respondents grave risk of harm defense. It observed that under Article 13(b), spousal abuse is only relevant if it seriously endangers the child. Souratgar v. Lee, 720 F.3d 96, 103–04 (2d Cir. 2013). There was no evidence that K.J.R. was targeted or at risk during the 2011 domestic violence incident, or that she even observed it. Riascos’s speculation and the parties’ conflicting testimony was insufficient to meet the high threshold for a grave harm defense. It noted that the exceptions to return are prospective, not retrospective. Sanchez v. R.G.L., 761 F.3d 495, 509 (5th Cir. 2014). As a result, past acts of domestic abuse or drug activity in the home are insufficient to show grave risk of harm. When the child observed parental abuse in the past, if the parents’ current living situation makes it unlikely that the child will do so again, there is no grave risk of harm. The Court, inter alia, also rejected the argument that K.J.R. would be in grave danger if she was returned because Jaimes lived in one of the highest crime areas of the city. Living conditions marked by poverty, sociopolitical unrest, or community violence are insufficient to show grave risk of harm or intolerable situation.
In Didon v Castillo, --- F.3d ----, 2016 WL 5349733 (3rd Cir., 2016) the father sought the return of his two children (A.D. and J.D.), to the Caribbean island of Saint Martin, a 34-square-mile island comprised of two legally distinct, yet highly integrated, countries—French Saint Martin. The Hague Convention is recognized by French Saint Martin (through France), but is not recognized by Dutch Sint Maarten.
The family resided in an apartment in Dutch Sint Maarten for three years before the children were retained in the United States. Throughout this period, although the family resided in Dutch Sint Maarten, it was “primarily oriented” to French Saint Martin “where Didon worked, and where the children attended school, went to doctor’s appointments, etc. The family’s administrative affairs, such as the children’s insurance, were managed in French Saint Martin. The district court observed: “The parties’ testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. ... [F]or most purposes of its residents’ daily life, the island is essentially undivided.” It highlighted testimony about the family’s extensive contacts with both countries and concluded that “the record facts, in addition to the nature of the island itself, supported a finding that J.D. and A.D. were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin. The District Court bifurcated the remainder of its analysis. Because Dominguez retained A.D. from his habitual residence in violation of Didon’s custody rights under French law, the District Court concluded that A.D. was “wrongfully” retained under the Hague Convention and granted the petition as to A.D. With respect to J.D., the District Court began by observing that Didon did not have custody rights over J.D. through adoption because his purported “adoption” did not satisfy the requirements of French law to vest custody. Because Didon did not have custody rights over J.D. under French law at the time of retention, the District Court concluded that J.D. was not “wrongfully” retained under the Convention and denied the petition as to J.D.
The Third Circuit reversed. It pointed out that the extraordinary facts of this case required it to decide an issue of first impression: may a child have two “habitual residence” countries at the same time under the Hague Convention (“concurrent habitual residence”)? It concluded that the text of the Convention does not permit concurrent habitual residence. Rather than referencing “a State” of habitual residence or “the States” of habitual residence, the Convention repeatedly refers to “the State” of habitual residence. Such language is not susceptible to any construction whereby a child may have more than one habitual residence country at a time. This textual conclusion finds support in the Convention’s Explanatory Report. It noted that in concluding that concurrent habitual residence is possible under the Convention, the District Court relied on an earlier Ninth Circuit decision—Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). In Mozes, the Ninth Circuit observed in dicta that, although “the view held by many courts” is that “a person can only have one habitual residence at a time under the Convention,” “[t]he exception would be the rare situation where someone consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each.” After carefully reviewing Mozes, it was not clear to the Court whether the Ninth Circuit was endorsing concurrent habitual residence or alternating habitual residence in that case. To the extent that Mozes could be read to support concurrent habitual residence, it rejected that interpretation of the Hague Convention as inconsistent with the Convention’s unambiguous text, and remaining faithful to the text of the treaty, it held that a child may have only one habitual residence country at a time under the Hague Convention.
The Third Circuit therefore looked to the ordinary meaning of the term “residence” and concluded that a child must have lived in a country (i.e., had a home) before that country can be considered her habitual residence under the Hague Convention. It held that the children were habitual residents only of the country in which they “lived”—Dutch Sint Maarten. Because Dutch Sint Maarten does not recognize the Convention, the Convention did not apply to this case. The Third Circuit vacated the District Court’s judgments and dismissed the petition. Because the District Court granted the petition as to A.D., it instructed the District Court to order that A.D. be returned to the United States forthwith.
In Delgado v Osuna, --- F.3d ----, 2016 WL 5076017 (5th Cir., 2016) the Fifth Circuit affirmed the district courts denial of Dr. Delgado’s petition for return of his seven-year-old and four-year-old sons (“J.A.L.O.” and “D.A.L.O.,” to Venezuela. The parties were citizens of Venezuela and the married biological parents of the children, who were born in Venezula, lived together from 2008 until May 2014. when they moved with their mother to Frisco, Texas. During this time, Dr. Delgado practiced urology. Prior to traveling to the United States in May 2014, Dr. Delgado and Osuna frequently discussed the civil unrest and danger occurring in Venezuela, and they discussed relocating their family to another country. The discussions were motivated by fear for their family, especially the children, after the family was robbed in 2013 in a Venezuelan hotel room while they slept. Additionally, Osuna testified that her uncle and father, had been involved in a military coup to overthrow the Venezuelan government. As a result, she and other members of her family had been threatened by the government, and she believed that her children had also been threatened. Osuna testified that she believed her children were threatened on March 4, 2014, when she was asked to pass a message to her uncle and father to “stop messing with the government.” At the conclusion of the conversation, the men who threatened her said, “Okay, you have a beautiful blondies [children], then take care.”
The family had previously planned to travel to the United States on May 14, 2014 so that Dr. Delgado could attend the annual Congress of Urology and the children could visit amusement parks. The family obtained six-month tourist visas for the visit. Originally, the family purchased four round-trip tickets arriving in Miami on May 14, 2014 and departing Miami to return to Venezuela on May 26, 2014. Following the March threat to Osuna, one-way tickets were also purchased (sometime between March and May 2014) for Osuna and both children to travel to Osuna’s sister’s home in Frisco, for an undetermined period of time. After the March 2014 threat, Osuna withdrew J.A.L.O. from school in Venezuela, and with Dr. Delgado’s knowledge and approval, she sent J.A.L.O.’s paperwork to the school in Frisco to prepare for his enrollment upon their arrival. The family packed as many belongings as they could fit inside eight suitcases (two per person), which was the maximum allowed by the airline before it charged a fee. Osuna brought all of her and her children’s important documents, including birth certificates, medical records, school records, and her marriage license. Osuna and Dr. Delgado also went to Osuna’s mother’s house to pick out jewelry to bring to the United States. Dr. Delgado also established a bank account in Frisco prior to the trip and deposited money into it. On May 14, 2014, the family traveled to Miami, Florida. During this trip, Osuna and Dr. Delgado met with Maritza Cifuentes who assisted Osuna and the children with preparing their applications for political asylum in the United States. During the meeting, Dr. Delgado learned that in order to practice urology in the United States, he would have to undergo an additional fourteen years of medical school and/or training. Accordingly, Dr. Delgado decided not to pursue asylum in the United States. On May 25, 2014, Osuna and the children flew to Texas. Dr. Delgado returned to Venezuela one day later. Throughout the spring and summer of 2014, Osuna and the children resided in Frisco, and J.A.L.O. enrolled in school there. On July 9, 2014, Dr. Delgado signed a power of attorney giving Osuna the authority to make decisions regarding medical, educational, and other care for the children while in the United States. Both parties agreed that the power of attorney did not affect either parties’ custody rights. Yet, the parties’ testimony diverged concerning the reason for executing the power of attorney. Dr. Delgado testified that the power of attorney was intended to give Osuna the authority to make medical, educational, and other care-related decisions for the children while they were in the United States. Osuna testified that the power of attorney was executed so that she could pursue the asylum applications for the children. In the fall of 2014, Dr. Delgado packed and sent, through a family member, some winter clothes to Osuna and the children. Osuna testified that even as late as October 2014, Dr. Delgado was aware of the asylum applications and continued to support her in pursuing asylum. Dr. Delgado provided approximately $500 a month to Osuna and the children until December 2014, when he ceased making these payments. Dr. Delgado testified that he requested that Osuna and the children return home in September 2014 because the political situation in Venezuela was improving. She refused. Dr. Delgado testified that his relationship with his wife had deteriorated, and he filed for divorce in January 2015.
The district court issued a written opinion finding that Dr. Delgado “failed to meet his burden to establish by a preponderance of the evidence that the habitual residence of the children was Venezuela, and, thus, failed to demonstrate that the children were wrongfully removed and/or retained in the United States.”
The Fifth Circuit observed that it reviews factual findings for clear error and conclusions of law de novo.” A factual finding survives review so long as it is plausible in the light of the record as a whole. A district court’s determination of a child’s “habitual residence” is a mixed question of law and fact subject to de novo review. The mixed standard of review means that the court accept[s] the district court’s historical or narrative facts unless they are clearly erroneous, but exercis [es] plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts. It rejected Dr. Delgado’s argument that “the district court ignored Fifth Circuit precedent and applied an erroneous legal standard in its determination of the Children’s habitual residence” and that the factual “record does not support the district court’s finding that the parties shared an intent to abandon Venezuela as the Children’s habitual residence.” It noted that the Convention does not define “habitual residence.” Larbie, 690 F.3d at 310. “The inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” This circuit has adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence....This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age. For example, parents’ intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. The threshold test is whether both parents intended for the child to abandon the habitual residence left behind.” Absent the parents’ shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,] ... most courts will find no change in habitual residence. ”
The Court noted that it reviews a district court’s shared intent determination as a factual finding that is reviewed for clear error.” The district court found that the parties’ “last shared intent ... regarding their children’s future was that they would leave their habitual residence, Venezuela, and would not return.” The district court recognized that the parties’ shared intent eventually diverged but that after meeting with Cifuentes in the United States, the last shared intent was for Osuna and the children to seek political asylum in the United States and for Dr. Delgado to return to Venezuela to seek employment opportunities elsewhere. If Dr. Delgado was successful in finding employment outside of Venezuela, Osuna and the children would cancel their asylum applications and reunite with Dr. Delgado.
The Fifth Circuit held that the district court did not clearly err in its shared intent determination. The record demonstrated that Osuna and Dr. Delgado’s last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. Once Osuna and Dr. Delgado formed this shared intent and the children subsequently left Venezuela with their most important documents in tow, Venezuela was abandoned as the children’s habitual residence. It held that Dr. Delgado’s argument—that the shared intent to abandon a child’s habitual residence requires “making a joint decision to raise the child in the new country” and that the new country must be agreed upon by the parents—was not the law in the fifth circuit. Berezowsky, 765 F.3d at 471. In affirming it found that the district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous.
In Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) the district court granted the Petition of the mother, Caroline Thonet-Bips, for the return of her four-year old child to Germany. N. was born on March 2, 2012 and was a citizen of Germany and the United States. The mother was a citizen of Germany. The father was a citizen of the United States. The parties were married and lived together in Germany from July 12, 2010 until January 2015. In January 2015, petitioner filed for divorce in Germany. In September 2015, during the pendency of the divorce proceedings, E.H. began residing with petitioner at petitioner’s residence. Since the parties’ separation, there was a strained relationship between respondent and E.H., whom respondent has referred to in conversations with N. as “a guy that does bad things.” In March 2016, respondent relocated to Virginia. By Agreement dated March 22, 2016, the parties agreed that respondent would have specified visitation rights with N during the summer. It also provided that “[i]t is agreed that it is the mother who will be entitled to decide on the place of residence of the son.” In October 2015, while respondent was still residing in Germany, N. made statements to respondent that caused him to have concerns that the child was experiencing some form of abuse at the hands of E.H. On June 29, 2016, N., with petitioner’s consent, traveled to the United States, where respondent and N. were met by respondent’s domestic partner S.C. After spending several days in Pennsylvania visiting respondent’s relatives, respondent, N., and S.C. all traveled on July 7, 2016 to Virginia, where respondent resided with S.C. On July 7, 2016, N. and S.C. were watching the television program Power Rangers Megaforce together. N. asked S.C. why Power Rangers “have to have so much power” and S.C. explained that they have to have power to fight “bad people” to protect the world; once S.C. mentioned “bad people,” N. responded “like E.H.” S.C. testified that while she was concerned by these statement, she did not report them to respondent. The next day, while playing Power Rangers with S.C. on the floor of N.’s room, N. said to S.C that he needed to have power like the Power Rangers so he can fight “bad guys” like E.H. S.C. asked N. why he kept mentioning E.H., and N. said because he is a “bad guy” and he “hit me.” At that point, S.C. testified that she had a “huge concern” but again did not report the comments to respondent. Then, on July 9, 2016, while on an outing for ice scream, N. told both S.C. and respondent that E.H. “hit me.” At that point, according to S.C. and respondent, N. “just started spitting it all out ... spilled all the beans and explained everything in detail,” including that E.H. “pulled his eyelids, called him dumb, slapped him in the face,” and “squeezed” his “pee pee so hard and would not stop.” N. also made comments suggesting that E.H. abused E.H.’s own daughter as well and said that on one occasion in petitioner’s home (in Germany), E.H. became angry and began to shout loudly and threw a lamp, frightening N. so much that N. ran into his room. On the evening of July 9 and the morning of July 10, 2016, respondent and petitioner engaged in a series of contentious text messages. Respondent told petitioner “[N.] has been telling me that [E.H.] has been hitting him and that he calls me names and that he is mean to him. I will be reporting this to the US authorities. He told me that he is scared to be around [E.H.].” Petitioner responded by calling respondent’s allegations “absolute [sic] bogus” and stating that “[N.] for sure does not live in a household where he is scared.” Petitioner, through her German lawyer, asked respondent to return N. to Germany on July 22, 2016. Respondent refused. N. was scheduled to return to Germany on August 25, 2016, based on arrangements made before N. left Germany to spend the summer with respondent. Before that scheduled return date, respondent cancelled N.’s airline reservation. On August 19, 2016, petitioner filed the action.
The Court found that the petitioner established a prima facie case for return to Germany, which was the childs habitual residence. It also concluded that respondent failed to establish by clear and convincing evidence that there is a “grave risk” that N. would suffer physical or psychological harm by return to his mother in Germany. There never were any allegations or concerns that petitioner has abused N. Nor had there ever been any physical signs of abuse by anyone. The only indications of any possible abuse were the child’s own comments, which were originally made and investigated in Germany in October 2015 by German child protective services. That agency concluded that there was no abuse and that the N. was not in danger. N.’s most recent comments like the earlier comments, were subject to interpretation and completely uncorroborated or substantiated in any way as references to actual abuse, and also were part and parcel of a context involving the child’s fascination and perhaps obsession with Power Rangers, as well as the parties’ ongoing difficult and at times contentious relationship and respondent’s own criticisms and negative characterizations of E.H., which he conveyed to N. The court found that the case had none of the facts or circumstances that had caused other courts to refuse the return of a child based on an Article 13 defense under the Convention. It rejected respondents argument that there was a grave risk of harm because petitioner could not or will not adequately protect N. from any possibility of abuse at the hands of E.H. The Court saw nothing that would substantiate respondent’s concerns. The evidence presented was far from “clear and convincing” that any abuse ever occurred or that if N. was returned to his mother, there was a “grave risk” that this four-year old would suffer physical or psychological harm in Germany.
In Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016) the district court denied the petition of Faisal Ahmed, a citizen of the United Kingdom, for the return of the children finding that the U.S. was the children’s habitual residence. The Father was employed as an accountant in the U.K. The Mother was a citizen of the United States. The parties were married on December 29, 2009, in Dhaka, Bangladesh. At the time of their marriage, Father lived in London and Mother lived in Michigan, where she was studying optometry. Following their wedding, Mother continued to live in the United States until August 2011. In August 2011, Mother moved to London to live with Father. In December 2011, Mother returned to the United States and moved to Clarksville, Tennessee. In August 2013, Mother returned to London to live with Father, a move that she considered to be permanent at that time. In October 2013, the parties submitted an application to the U.K. Border Agency for Mother’s Indefinite Leave to Remain in the U.K. The application was approved and, on March 16, 2014, Mother was issued an ILR Residence Permit allowing her to live in the U.K. for ten years. Mother became pregnant with the twins in February 2014. Following a domestic argument in May 2014, Mother traveled from the U.K. to Knoxville, where she had previously lived. Mother did not return to the U.K. in the summer of 2014. She also testified that she chose not to return to the U.K. because of the issues in her marriage. Father traveled to Knoxville on October 9, 2014, and the twin daughters, An.Z.A. and Am.Z.A., were born on November 4, 2014 in Knoxville. Father returned to London on January 5, 2015. other and the children have remained in Knoxville ever since. On May 18, 2015, the parties and their children traveled to the United Kingdom. Mother traveled to London on a round-trip ticket, with a return to Knoxville scheduled for November 15, 2015, so she could attend a professional conference and visit family. The children, as U.S. citizens, had a 90-day visa to stay in the U.K. Father testified that the family brought “everything of any value” with them to London. Mother testified that she did not bring her diplomas or her optometry instruments to the U.K., nor did she take the family jewelry that was “culturally and religiously ... very important” to her and her family. Mother testified that she agreed to travel to the U.K. “for a short summer visit” upon certain conditions that she wanted Father to fulfill “to see if our marriage was going to work” . On July 12, 2015, Mother and the children traveled from London to Bangladesh, with Father’s consent and accompanied by her father, to attend the wedding of Mother’s brother. On August 5, but instead flew from Bangladesh to Knoxville, Tennessee where they have resided since then. The action was filed on March 23, 2016.
The district court observed that the primary issue was whether the children’s habitual residence was the U.K., or the U.S. It observed that term “habitual residence,” has been described by the Sixth Circuit as the country where, at the time of removal or retention, “the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ”. A child “can have only one habitual residence.” The Court “must look back in time, not forward” to determine a child’s habitual residence and “focus on the child, not the parents, and examine past experience, not future intentions.”The determination of a child’s habitual residence is a question of fact. Only a change in geography and the passage of time may combine to establish a new habitual residence. The Sixth Circuit has acknowledged that the standard of “acclimatization” and “a degree of settled purpose,” “may not be appropriate in cases involving infants or other very young children. The reason the “acclimatization” standard is ill-fitting to the case of an infant or very young child is that the child is naturally “entirely dependent on its parents.”. Infants do not develop a “settled purpose” or “firmly rooted” ties to a location through school, friendships, or other activities as older children do. Unfortunately, the Sixth Circuit has not yet articulated an alternative standard or considerations for determining the habitual residence of an infant and has expressly rejected the consideration of “shared parental intent” in determining a child’s habitual residence. The Court found that consideration of all available evidence, looking backward and focusing on the children’s past experience, was an appropriate path forward and consistent with the admonition in Robert to “look closely at the facts and circumstances of each case.” 507 F.3d at 989.
Given their young age, it was difficult to conclude how much the children had acclimated or become settled in the U.S. versus the amount of acclimatization that occurred during their time in the U.K. The facts and circumstances of the children’s past experience did not tilt the scale strongly in one way over the other, with the exception of the amount of time spent in each country. The children had spent most of their lives in the U.S., including most of their lives prior to the date of retention. While it is well settled that the “place of birth is not automatically the child’s habitual residence,” Holder, 392 F.3d at 1020, and that “a change in geography and the passage of time may combine to establish a new habitual residence,” Robert, 507 F.3d at 989, the Court questioned whether the children’s limited time in the U.K. was sufficient to establish a new habitual residence. To the extent that the parents’ intent is relevant, the preponderance of the evidence demonstrated that the parties had no settled mutual intent to live in either the U.S. or the U.K. on August 5, 2015, the date of the children’s retention. Looking backward from that date, there was no settled mutual intent during the children’s lives and much of Mother’s pregnancy. From the time of their birth to the date of retention, the children lived primarily in the U.S. While the place of their birth is not automatically the children’s habitual residence, Holder, 392 F.3d at 1020, the Court could not conclude that the seven to eight-week period the children spent in the U.K. was sufficient to establish that as a habitual or settled residence. The preponderance of the evidence indicated that Mother and the children traveled to the U.K. to visit and for Mother to determine whether she wanted to live with Father in the U.K. or return to the U.S. They did not bring all of their belongings to the U.K. and Mother did not sever her ties to living and working in the U.S. The children, as U.S. citizens, could only stay in the U.K. for three months. There was simply insufficient evidence that the children established deep-rooted ties or a degree of settled purpose in the U.K. in this limited time. The Court concluded that the facts and circumstances of the children’s past experience did not establish the U.K. as the children’s habitual residence, and therefore, their retention in the U.S. was not “wrongful” within the meaning of the Hague Convention.
In Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016) the district court granted the petition of Javier Flores-Aldape for the return of his child, C.F. to Mexico. The mother, Fatin Shawki Kamash, was a US resident and naturalized citizen. Javier was a Mexican citizen. In February 2011, Javier found a job in Mexico as an aviation engineer. He bought a house in Mexico. Javier and Fatin married in November 2012 in Michigan. The next month, Fatin moved to Querétaro, Mexico on a visitor’s visa. She did not have a job in Mexico. Fatin learned she was pregnant in July 2013. The next month, she returned to the United States in anticipation of an immigration interview scheduled for September 2013. C.F. was born in Michigan on March 30, 2014. Fatin and C.F. remained in Michigan for four months. In late July 2014, Fatin and C.F. flew to Mexico on round-trip tickets, with a return date in April. Fatin, Javier, and C.F. lived together in the family’s home in Querétaro, and C.F. was baptized in Mexico in August 2014. Later that month, Javier lost his job with General Electric, but the family remained in Mexico, living off Javier’s savings and receiving additional financial support from his parents. Given her young age, C.F. was not enrolled in daycare or any extracurricular activities and had limited interaction with the community beyond her own family. Fatin obtained a Mexican permanent resident card and opened a bank account in her name in Querétaro. In the spring of 2015, the family celebrated C.F.’s first birthday. Fatin applied and was accepted to the pharmacy program at The University of Findlay in Ohio for the fall 2015 semester. Javier and Fatin’s relationship deteriorated, and they discussed the possibility of divorce. Fatin and C.F. left for Michigan on May 10, 2015. Javier drove them to the airport, and Fatin and Javier parted on good terms. Fatin and C.F. left their winter clothes and many of their other belongings, including C.F.’s toys and crib, in Mexico. Upon her arrival in Michigan, Fatin resumed her part-time tutoring work at Oakland Community College and enrolled C.F. in daycare. Fatin also applied for and received WIC and child care assistance benefits in Michigan. During a phone call in the first week of August, Fatin informed Javier that she and C.F. would not be returning to Querétaro. Javier claimed they agreed the visit to Michigan would last only three months, corresponding with the summer session at Oakland Community College, while Fatin maintained it was indefinite, and she never intended to go back to Mexico.
On October 7, 2015, Javier filed the Hague Petition. The Court credited Fatin’s testimony that she and Javier desired to eventually create a long-term home in the United States. The Court found the parties did not share a present intention to begin that process with Fatin and C.F.’s May 2015 trip to Michigan. In a June 2015 e-mail Fatin confirmed the trip was meant to be limited in duration. The district court found there was no wrongful removal. Javier consented to C.F. traveling to Michigan with Fatin in May 2015. It became clear Fatin and C.F. were not returning to Mexico in early August 2015. August 5, 2015 was the date of C.F.’s retention. The Court observed that the Sixth Circuit has held “a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” Robert, 507 F.3d at 989 (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). The Sixth Circuit has also held this inquiry “must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich I, 983 F.2d at 1401. A person “can have only one habitual residence,” and “a change in geography and the passage of time” are required to establish a new habitual residence. The Sixth Circuit has repeatedly rejected the subjective intent of the parents as an additional factor in determining the child’s habitual residence. Nevertheless, it has also recognized that parental intent may be a valid consideration in cases involving very young children or children with developmental disabilities. The Court agreed parental intent is an appropriate consideration in cases like these. C.F. was just four months old when she left the United States for Mexico, and fourteen months old when she returned to visit family in Michigan. A child of that age is “too young to form any meaningful connection to a country, its inhabitants, and its locations.” Her experience of the world is limited to the environment created by her parents, and she will likely “acclimatize” quickly to any residence in which her family and daily routines are present, regardless of geographic location. The Court found that although C.F. was born in the United States, the circumstances reflected Fatin and Javier’s settled purpose to make their home -- at least for the foreseeable future -- in Mexico. Javier and Fatin established their marital home in Querétaro soon after their wedding, and they jointly participated in renovating the residence according to their preferences. Javier and Fatin also shared an intention to relocate to the United States someday. But to determine C.F.’s habitual residence, the Court had to look to the parents’ last moment of shared intent. The testimony and other evidence reflected that as of August 2015, Javier and Fatin had not jointly decided to abandon their residence in Mexico and move the family to the United States. Absent an agreed plan to abandon their home in Mexico, C.F.’s temporary visit to the United States during the summer of 2015 could not create a new habitual residence.
In Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016) the district court denied the petition filed by Charles Blackledge on July 6, 2016, seeking the return of his minor child (“J.B.”) to Berlin, Germany. The Petitioner was a citizen of the U.S. The Respondent was a citizen of Ukraine, where the couple were married in 2008, and J.B. was born there on June 26, 2008. The parties resided there until Petitioner obtained employment in Ireland in 2009. They thereafter resided in several European nations for varying periods of time. In June or July 2011, Petitioner began his current position in Germany. Around the same time, Respondent was accepted into graduate school at the University of Pittsburgh. The parties traveled together to Pittsburgh in August 2011, and established a residence for Respondent and J.B. Petitioner remained in Germany to continue his new job. Respondent and J.B. remained in Pittsburgh for two years while Respondent attended graduate school. Respondent and J.B. then returned to Germany in August 2013 to live with Petitioner. Respondent was able to continue her graduate studies remotely. J.B. was enrolled in a primary school , where the child completed kindergarten and first grade during the 2013 – 14 and 2014 – 15 academic years. After approximately two years in Germany, Respondent determined that she would need to return to Pittsburgh to complete her graduate degree. The parties agreed that J.B. would accompany Respondent back to Pittsburgh. Upon their return to Pittsburgh in August 2015, J.B. was enrolled in Colfax for the second grade. Respondent continued her graduate studies and Petitioner continued to work in Germany. Once back in Pittsburgh, the Respondent filed for divorce on April 7, 2016. Petitioner demanded the return of J.B. to Germany.
Petitioner claimed that he and Respondent had a verbal agreement by which J.B. was to accompany Respondent to Pittsburgh for one year while Respondent completed her graduate degree, and after which J.B. would return to Germany.
The Court found that J.B. was retained by Respondent beginning in August 2016. The Court observed that “Habitual residence” is the place in which a child “ ‘has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.’ ” Karpenko, 619 F.3d at 263. Habitual residence is a “concept that focuses on past experience, not future intentions.” Karkkainen, 445 F.3d at 294 (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)). To that end, the Court examines a child’s experiences in, and contacts with, his or her place of residence to determine whether he or she is “firmly rooted,” and not merely acculturated. A child’s academics, social engagement, participation in extracurricular activities, and routines are all central to finding acclimatization and a settled purpose. There “must be ‘a sufficient degree of continuity. The credible facts were strongly suggestive of a degree of continuity and settled purpose sufficient for the Court to find that J.B. , who was interviewed in camera, was acclimatized to Pittsburgh. J.B.’s record of academic achievement and engagement at Colfax, significant social contacts, wide ranging extracurricular activities, substantial familiarity with Pittsburgh, its institutions, and its culture, and unequivocally favorable opinion of all the above, demonstrated that J.B. had not only “formed meaningful connections with the people and places [he] encountered” in Pittsburgh, but that his life has attained “ ‘a sufficient degree of continuity to be properly described as settled. That notwithstanding, parental intent is still part of the Court’s inquiry. Evidence of shared intent by the parties – or a lack thereof – can trump evidence of acclimatization, particularly when the child is young. The shared intent of Petitioner and Respondent was far from clear. The Court found that the beyond agreeing that J.B. would reside with Respondent when she traveled to Pittsburgh for school – as he had in the past – there was no credible evidence of an agreement for a specific duration. A ‘child can lose its habitual attachment to a place even without a parent’s consent’…when ‘the objective facts point unequivocally’ to the conclusion that a child’s relative attachments to two countries have changed.” The credible facts, as found by the Court, clearly indicated that attachments shifted for J.B. In light of the lack of evidence of an agreement regarding a specific duration for J.B.’s stay in Pittsburgh, as well as the Court’s determination that Respondent exhibited a greater degree of credibility than Petitioner, and given the strong evidence of J.B.’s acclimatization, the Court found J.B.’s habitual residence to be Pittsburgh. Therefore, Respondent’s retention was not wrongful..
In Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) Petitioner father filed a Petition for Return of Children To Panama. He claimed that Respondent, the mother of the children, absconded to Florida with their eight-year old twin sons as of March 20, 2013. This was the second time that the Respondent has removed the children to the United States from Panama. Respondent returned the children to Panama only after a United States District Court in the Eastern District of Missouri ordered her to do so in September 2010. Petitioner alleged that the children resided with him in Panama City, Panama, up until February 20, 2013. Petitioner maintained that the delay in bringing this action was a result of the Respondent’s concealment of the children’s location from Petitioner through the use of aliases and frequent relocations across the state. The Court granted a temporary restraining order finding preliminarily that Petitioner would suffer irreparable harm unless the Order was granted. Given that Respondent again had removed the children from Panama, and refused to return the children from Florida to Panama, there existed a clear risk that Respondent would further secret the children and herself in violation of the Hague Convention, the ICARA, and other applicable law. The Court preliminarily found that the allegations established a prima facie claim of wrongful removal under Article 3 of the Hague Convention and that the fact-specific nature of numerous issues necessitated an evidentiary hearing. Nevertheless, at the Temporary Restraining Order stage, the Court found that Petitioner had shown that there is a substantial likelihood of success on the merits given his preliminary establishment of a prima facie case, the prior wrongful removal by Respondent, and the concealment tactics purportedly used by Respondent that would undermine a “well-settled” affirmative defense. In addition, the Court found that the threatened injury outweighed any harm the relief would inflict on Respondent and that that the issuance of the Temporary Restraining Order would l serve the public interest. The Court set a hearing date due to the fact that the Hague Convention provides a six week window for the adjudication of such cases. It required Respondent to produce the children at the hearing. Respondent was prohibited from removing the children from the jurisdiction of the Court pending a hearing on the merits, and further directed that no person acting in concert or participating with Respondent shall take any action to remove the children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition for Return of Children to Panama.
In Sadoun v. Guigui, 2016 WL 4444890 ( S.D. Florida, 2016) Petitioner and Respondent had 3 children: S.A.E.S., born in 2001, L.E.J.S., born in 2004, and S.L.J.S., born in 2008. Their eldest daughter was 16 and not subject to the Convention. The Children were born in Paris and resided there with their parents in the family’s apartment for most of their lives. On June 29, 2015, Respondent and the parties’ four children departed France for the family’s annual trip to their vacation home in Miami Beach, Florida, while Petitioner remained behind in France to attend to his ailing father. Respondent and the Children did not return to Paris on the date they were scheduled to return. The parties stipulated that Petitioner met his burden of presenting a prima facie case of wrongful removal or retention under the Convention. However, the Court found that: (1) Respondent established by clear and convincing evidence that returning the Children to France would expose them to a “grave risk” of physical or psychological harm, and (2) that Respondent proved by a preponderance of the evidence that S.A.E.S. and L.E.J.S. were of a sufficient age and maturity to permit the Court to appropriately consider their objections to repatriation.
At trial, the parties’ eldest child, L.L.S., testified that Petitioner drank alcohol every night. Her testimony also revealed that during Petitioner’s drunken tirades, he would call each of the Children “dummy,” tell them they were “really stupid,” and refer to his wife as a “Bitch” or “slut,” which shocked his daughter. Respondent’s sister testified to Petitioner’s increasingly aggressive behavior while drinking and of the verbal onslaughts he unleashed upon his family during these alcohol-infused episodes. She testified “He was already seated with a drink in his hands. As we went on ... the night he kept on drinking and his speech got slurred. Very angry. Very aggressive. He called me a bitch many times in front of the children.” According to Respondent, Petitioner’s belittling of her and the Children was anything but an isolated event. (“[Petitioner’s] verbally abusive. He just recently called me a prostitute in the middle of a wedding in Miami. He is continuously demeaning me. It was terrible.” According to Petitioner, he was only drunk twice in his life. The Court received a substantial amount of credible testimony that throughout the parties’ seventeen-year marriage, Petitioner exhibited a pattern of coercive behavior towards Respondent that is widely recognized as domestic violence. Respondent’s sister testified that Petitioner isolated Respondent by greatly restricting her ability to travel, unless it was with the parties’ children. Petitioner financially abused Respondent by restricting her access to the couple’s shared financial resources in what appeared to have been an effort to reduce her sense of autonomy. Petitioner directed this pattern of abusive behavior toward his children in a physical manner as well. Muriel Guigui testified that she witnessed instances of Petitioner’s physical abuse of the Children when Petitioner would pull the boys’ ears and drag them to their rooms where he would repeatedly hit them to a point where they screamed out, “[p]lease stop, you’re hurting me.” On one occasion, Muriel entered the room after Petitioner left and found the boys crying with red marks on their bodies where Petitioner had struck them. Respondent convincingly recounted the brutal methods Petitioner frequently employed to “discipline” the children for talking loudly. (“A. He would strike their legs mostly because they were in a protective position. Their arms and legs with the belt. And usually to the head, a lot of times in the head. It’s hard to show proof.”). The Court also received into evidence an audio recording of the parties’ two sons being viciously beaten by Petitioner while the boys unsuccessfully begged for mercy. The Guardian Ad Litem discussed several instances of physical abuse that the Children brought up during their individual interviews. No one could reasonably contend that when Petitioner viciously struck his sixteen-year-old daughter in the head and possibly rendered her unconscious—in front of his seven-year-old daughter —that action was anything short of child abuse. Victims of spousal abuse often do not come forward to report instances of domestic violence for many reasons and, therefore, a lack of near-contemporaneous documentation does not necessarily render a victim’s claims unbelievable. The Court found that Respondent’s credible testimony that Petitioner harmed S.A.E.S and L.E.J.S. as a result of the disproportionate force that Petitioner frequently inflicted on them with either a belt or his hands—whether closed or open—together with Respondent’s unrefuted testimony about Petitioner’s emotional torment and physical abuse of her and L.L.S., “demonstrated a non-negligible probability of [Petitioner] someday physically injuring” the Children. Petitioner’s physical abuse of his children, the overwhelming evidence of psychological abuse of the Children and Respondent—particularly when Petitioner hurls obscene epithets at her in their presence—other indicia of domestic violence, and Petitioner’s reckless disregard for his family’s safety when he drove while intoxicated, led the Court to an obvious conclusion: it would be irresponsible to think the risk to the children less than grave.
