Madrigal v Tellez, ______F3d_____, (5th Cir., 2017)[Mexico] [Federal & State Judicial Remedies] [“Return”]

In Madrigal v Tellez, ______F3d_____, (5th Cir., 2017) Jorge Carlos Vergara Madrigal (Vergara) and Angelica Fuentes Tellez (Fuentes) were the parents of two young daughters, ages five and three years. The family resided in Mexico City, Mexico, until April 2015, when Fuentes took the Children on vacation but wrongfully retained them in the United States thereafter. In June 2015, Vergara filed an action under the Hague Convention seeking the return of the Children to Mexico. Following trial, the district court found that Mexico was the state of the Children’s habitual residence, of the Convention, and that Fuentes had wrongfully retained the Children in the United States in violation of Vergara’s custody rights. The district court rejected Fuentes’s argument that the Children would face a grave risk of harm if returned to Mexico, finding that both parents were well able to provide them with adequate protection. In September 2015, the district court issued an order granting Vergara’s petition and requiring Fuentes to “return the Children to Mexico”). In the interim, Fuentes filed with the district court a Rule 60(b) motion to vacate the judgment, arguing that new evidence established that the Children would face a grave risk of harm if returned to Mexico. Vergara filed a “motion to enforce the judgment,” asking, among other things, that the Children be delivered to him for purposes of return to Mexico. On January 29, 2016, the district court denied Fuentes’s motion to vacate and granted in part and denied in part Vergara’s motion to enforce, again ordering Fuentes to return the Children to Mexico but declining to impose any additional requirements.

        In early February, Fuentes filed a “Notice of Compliance with Court Order,” in which she represented to the district court that “the Children were returned to Mexico” and that they are “residing” in Ciudad Juarez, Mexico. However, according to Vergara, he subsequently learned that the Children were only spending some week nights in their maternal grandfather’s house in Juarez, while spending weekdays and weekends in El Paso, Texas. Vergara filed a “second supplemental emergency motion for clarification,” asking the court to order Fuentes to deliver the Children and their passports to Vergara and to prohibit the Children’s international travel out of Mexico. In a February 11, 2016, order, the district court denied this motion. 

The Fifth Circuit observed that the return remedy is the “central operating feature” of the Convention. Abbott, 560 U.S. at 9. Neither the Convention nor ICARA define the term “return.” It rejected Vergara’s argument that “return” under the Convention requires a restoration of the pre-abduction status quo, connotes permanence, and precludes delivery of a child to individuals with no custody rights. He  maintained that the Children had not been returned to Mexico because they
spent the majority of their time in the United States, traveled between the two
countries on a daily basis, and were in the care of third parties who had no
custody rights when they are in Mexico. The Court rejected Vergara’s expansive reading of the Convention’s return remedy as categorically mandating the relief that he sought. The return remedy was designed to ensure that the courts of the state of habitual residence have jurisdiction over the child in order to make custody determinations. Thus, the Convention and its return remedy do not control or regulate children whose custody matters are within the exclusive jurisdiction and control of the state of habitual residence. The parties agreed that Mexican courts now had jurisdiction to decide all custody matters in this case—those custody matters were currently being litigated in Mexico. And the Children’s regular and frequent presence in Mexico allowed Mexican authorities to enforce any judgment by the Mexican courts relating to the Children. Thus, the return remedy’s goals had been
achieved in this case.

Vergara contended that “the Children should have been returned to Mexico City, where among other things they can spend time with both parents and resume attendance at their original school.” The Fifth Circuit held that while the Convention seeks the “restoration of the status quo” in order to deter child abductions,, there is no indication that it is meant to restore the factual pre-abduction status quo in every sense, as Vergara suggested. Indeed, a court’s determination of the location of the child’s residence within the state of habitual residence, the school he or she must attend, and visitation schedules begins to resemble the judgments to be made in a domestic child case. Hague Convention courts are empowered to order the delivery of an abducted child to the petitioning parent for purpose of returning the child to the state of habitual residence. Yet,  the Convention’s return remedy “only determines where any custody decision should be made.” Hernandez, 820 F.3d at 786. Vergara’s complaint that the Children were in the care of third parties when in Mexico was not relevant to the Convention’s return remedy because it has no effect on the now-established jurisdiction of the Mexican courts to make custody decisions in this matter. It pointed out that with regard to  Vergara’s concerns about the children’s travel out of Mexico, this was within the jurisdiction of the Mexican courts. Subject only to the confines of Mexican law, Mexican courts are free to grant Vergara full custody over the Children and to prohibit or restrict their international travel.  It affirmed  the district court’s denial of Vergara’s post-judgment motions.

The Fifth Circuit affirmed that part of the order of the district court that denied her motion to reopen the trial, based upon her attorney's receipt of a single, vague email from an unknown source finding that what may have been a threat in the subject lien was  not clear and convincing evidence of a grave risk of harm. There was no text in the body of the email. In October 2016, a Mexican court issued a warrant for Fuentes’s arrest, charging her with the offense of fraudulent administration. In her Rule 60(b) motion she claimed that no bail is available for this offense, and she would therefore be indefinitely separated from the Children if they were to remain in Mexico. Fuentes did not argue that the Mexican judicial system wass corrupt or unfair. The Fifth Circuit held that for it to second-guess the decisions of Mexican courts in their domestic criminal cases would be in serious tension with the principle of international comity, which the Convention seeks to further. Thus, the arrest warrant, did  not establish clear and convincing evidence of a grave risk of harm to the Children. Accordingly, it affirmed the district court’s denial of Fuentes’s motion to vacate the Original Return Order.

Raps v Zaparta, 2017 WL 74739 (SDNY, 2017)[Poland] [Necessary Expenses and Costs]

In Raps v Zaparta, 2017 WL 74739 (SDNY, 2017) after the Court granted the petition of Robert Adrian Raps for the return of his child (“J.R.”) to Poland, it granted him an award of attorneys’ fees and costs, pursuant to 22 U.S.C. § 9007(b)(3). In its decision the court indicated that it “was not a close case” but that it was not frivolous.  

The petitioner was represented by pro bono counsel. The Court observed that the appropriateness of such an award “depends on the same general standards that apply when attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion. There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Ozaltin v. Ozaltin, 708 F.3d 355, 374 (2d Cir. 2013) (internal citations and quotation marks omitted).  Under the “lodestar” method of evaluating a fee request, the Court must multiply the number of hours reasonably expended by a reasonable hourly rate. Sanguineti v. Boqvist, 2016 WL 1466552, at *2 (S.D.N.Y. Apr. 14, 2016). The Court found the total hours expended –557.31 – to be reasonable under the circumstances and the low rates of $40/hour for out-of-court work and $60/hour for in-court were plainly reasonable. Petitioner sought a total of $36,795.61 in costs actually incurred by or on behalf of petitioner to locate J.R. in the United States and to file and prosecute his petition for the return of J.R. to Poland.  These costs included the investigative expenses to locate J.R. ($628.54), travel expenses for petitioner and his sister to attend the evidentiary hearing (both testified) ($1,771.38), and travel expenses related to the return of J.R. to Poland ($2,318.22). These costs also included court reporter fees ($699.30), transcript charges ($1,282.50), translation fees $26,189.13), interpreter fees ($2,115.00), and hotel expenses for petitioner and his sister to attend the evidentiary hearing ($1,791.54). The Court found that the claimed costs constituted “necessary expenses incurred by or on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3).

Although the total amount claimed for attorneys’ fees and expenses was therefore $60,602.64 the Court declined to award this amount because (1) Petitioners counsel agreed to take on the case on a pro bono basis – that is, it did not expect to be paid for its services or reimbursed for its expenses. Although the fact that the firm appeared pro bono does not preclude an award of fees and costs, it does warrant a reduction in the amount awarded. See Smedley v. Smedley, 2015 WL 5139286, at *3 (E.D.N.C. Sept. 1, 2015); Vale v. Avila, 2008 WL 5273677, at *2 (C.D. Ill. Dec. 17, 2008). Awarding petitioner these fees and costs (except for the $4,718.14 he and his sister personally incurred) would not restore him to the financial position he was in had J.R. not been wrongfully removed is one of the purposes of awarding fees and costs; and (2) Respondent was a person of limited financial means. She had  negligible liquid assets, and she had been unable to work for more than a year due to various health problems. A losing respondent’s financial straits is a relevant factor in determining whether and how much to award in fees and costs. The Court found that two very good reasons to award substantial fees and costs under Section 9007(b)(3) were (1) an important purpose of such an award is to deter future child abductions; and (2) such an award will encourage lawyers to represent petitioners in Hague Convention cases on a pro bono basis in the future, because such lawyers might at least be able to recover their out-of-pocket costs. The Court found it would not be “clearly inappropriate,” 22 U.S.C. § 9007(b)(3), to order respondent to pay necessary expenses incurred by or on behalf of the petitioner, including legal fees and costs. But it would be clearly inappropriate to award the full amount requested. Accordingly, the Court reduced the full amount requested by two-thirds, such that the amount awarded was $20,200.88.

Davies v Davies, 2017 WL 361556 (SDNY, 2017)[French St. Martin] [Grave Risk of Harm] [Petition denied]

In Davies v Davies, 2017 WL 361556 (SDNY, 2017) Respondent Sally K. Davies was a citizen of the United States and the United Kingdom. Petitioner Christopher E. Davies was born in and is a citizen of the United Kingdom. They were married in 2006., In June 2008, they moved to the Caribbean island of St. Martin, where they purchased a scuba diving center. Ms. Davies gave birth to K.D in 2012. The parties lived together with K.D. in Grand Case, French St. Martin, until July 8, 2016. On July 18, 2016, Ms. Davies left St. Martin with K.D. for New York, without Mr. Davies’s knowledge or consent. Prior to this, K.D. never resided anywhere other than French St. Martin. Ms. Davies and K.D. currently reside at Ms. Davies’s parents’ house in Croton-on-Hudson. The district court found that the child’s habitual residence was French St. Martin, but if the child were returned to French St. Martin  Mr. Davies’s extreme psychological abuse of Ms. Davies and K.D. would continue and escalate and there was a grave risk that K.D. would be exposed to severe psychological harm. It also found that the procedures in place in French St. Martin would be insufficient to protect K.D., and there were no ameliorative measures that could reduce the grave risk of harm. It declined to order the return of K.D. to French St. Martin.       

During trial, the Court found Ms. Davies to be a credible witness. The Court found that very little of what Mr. Davies said was believable, primarily because it was completely contradicted by the testimony of numerous other witnesses called by Ms. Davies, and lacked any support from disinterested witnesses. The Court found Mr. Davies’s testimony on every significant contested issue to lack credibility.

The court observed that under Article 13(b), a grave risk of harm from repatriation arises in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar v. Lee, 720 F.3d at 103  The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” “The exception to repatriation has been found where the petitioner showed a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child.” Souratgar v. Lee, 720 F.3d at 104. Evidence of “prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse. 

        Dr. Stephanie A. Brandt, a psychiatrist testified as an expert at trial. She concluded that this was a very severe case of domestic violence. She concluded that the mother was a victim of a particularly severe kind of domestic violence, which included strangulation, and concluded that the child was witness to a great deal of violence and was also subject to a certain amount of violence himself. In addition, she diagnosed Ms. Davies with “a quite severe case of Post-Traumatic Stress Disorder of a certain type called dissociative type.” She  also testified that domestic violence often escalates after a separation. She explained this is because when the victim of abuse leaves, “the abuser has then lost control, and controlling the victim is an essential part” of the pattern of abuse. Dr. Brandt further testified that the escalation after a separation can continue weeks, months, or longer after the separation, “often ... through the child or through the legal system or through various financial threats.” Dr. Brandt  testified there is a consensus in the scientific community that the effects of abuse are essentially the same whether the abuse is directed at the child or whether the child is witnessing the abuse. Based on her observations, Dr. Brandt concluded that returning K.D. “to a place where this [abuse] occurred and to the care of somebody who has abused the mother would set off a tremendous traumatic reaction in” K.D.. She testified that there would be “a very high risk that [K.D.] would become very symptomatic, and that would mean a delay ... or change in his developmental trajectory and not [in a] good direction.”. She also testified that her opinion would not change if K.D. resided part-time with Mr. Davies upon his return to St. Martin, and that her opinion would be the same even if K.D. did not reside with Mr. Davies at all. The Court credited and fully accepted these conclusions. In light of the overwhelming evidence ( as set forth in the courts findings) of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by K.D., and the fact that Mr. Davies frequently screamed and yelled at K.D. for no legitimate reason, the Court concluded that both Ms. Davies and K.D. were  victims of severe domestic violence and that K.D. was at serious risk of trauma and developmental delay if he were permitted to continue to experience and witness the abuse.

The Court noted that in cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin v. Dubois, 238 F.3d at 163, n.11. It found that  Mr. Davies repeatedly lied at trial, and the evidence showed he had tried to circumvent the law in St. Martin when he does not agree with its application to him. Therefore, Mr. Davies could not be trusted to honor any agreements or commitments he might make and that Mr. Davies would not abide by a stay away agreement if K.D. were returned to St. Martin. Second, several experts in St. Martin testified regarding the extremely small size of the island and its community, and the resulting inability to hide or avoid one’s abuser there.  St. Martin is a very small island, different from the big French territory ... where a victim of psychological violence can hide. Hiding is not possible in St. Martin.  Third, the legal system in St. Martin was inadequate to protect Ms. Davies and K.D. from Mr. Davies’s abuse. In French St. Martin it is not possible to get an immediate order of protection in cases of psychological abuse. Under normal circumstances, to obtain an order of protection, one must send a written request to a clerk in Guadeloupe (there are no clerks in St. Martin), who issues a summons to the accused abuser. This process takes at least fifteen days, and it can take more than a month before the parties are notified that they must appear in court. If an order of protection is eventually granted, it expires after six months. It can only be extended for one additional six month period, and only if divorce proceedings have commenced. An order of protection issued in French St. Martin is not effective in Dutch Sint Maarten.  

The court concluded that because of the nature and extent of the allegations here, the procedures in place in St. Martin were insufficient to protect Ms. Davies and K.D. The found there were no ameliorative measures that would protect K.D. from harm if K.D. were returned to St. Martin even during custody proceedings.

Baker v Baker, 2017 WL 314703 (M.D. Tenn.)[Germany] [Consent][Petition denied]

In Baker v Baker, 2017 WL 314703 (M.D. Tenn.) the court denied the Petition of  Kenneth Baker for an Order directing that the parties’ minor children, LMB and MAB, be returned to Germany. 

Petitioner was a Chief Warrant Officer  in the United States Army The children’s mother, Respondent Brianne Baker, removed the children from Germany, where he was stationed, on or about May 3, 2016, to the United States. In 2012, the Army issued Orders, with an April 1, 2012 reporting date, taking Petitioner and his family to Wiesbaden, Germany. Petitioner, Respondent, and the children resided in Wiesbaden for three years in a house located off base. On April 22, 2015, the Army issued Orders, with a July 13, 2015 reporting date, to Stuttgart, Germany. Thereafter, the parties and their children made a trip to the United States for four weeks during the summer of 2015 visiting family. During the trip, Respondent told Petitioner she did not want to return to Germany because “she felt [she] was already done with her marriage at that point. Petitioner thereafter promised Respondent that she and the children would be able to return to Tennessee if things did not work out in their marriage. Relying on this promise, Respondent ultimately agreed to return. Petitioner and his family ultimately moved to Stuttgart, Germany. On February 25, 2016, during an argument Petitioner stated that he was going to file for divorce in Germany. At some point during the conversation, Respondent hit him with her iPad. Petitioner allegedly became fearful for his safety, so he took the children and drove to the Military Police station, which was one-quarter mile from the family’s home. When Petitioner arrived at the MP station, the desk sergeant smelled alcohol on his breath, which led to him being charged with a DUI. At some point, on that same evening, Respondent, who admitted to hitting Petitioner, was apprehended and charged with domestic violence. After the February 25, 2016 incident, the parties separated and Petitioner moved into the barracks. The children returned to the house to stay with Respondent, but Petitioner continued to have visitation with the children by agreement of the parties. On February 26, 2016, Petitioner realized that he and Respondent would not be able to reconcile and in order to comply with command’s lawful order, prepared a Memorandum and Personnel Action for the early return of his wife and children. On this document, Petitioner listed the requested return date of June 26, 2016, so that he would have time to file for custody in Germany and prevent EROD orders from being issued. Petitioner then filed a petition for custody of the children in German Civil Court. On April 28, 2016, Respondent was served with a summons to appear in Court on May 4, 2016, via email, and she was personally served on April 29, 2016. On May 3, 2016, Petitioner took the children and flew to the United States, despite having knowledge of the custody hearing that was scheduled for the next day in German Civil Court. On June 17, 2016, Petitioner’s Verified Petition requesting the return of the children was filed with the district  Court.

The district court observed that in holding that the habitual residence inquiry focuses on “past experience, not future intentions,” the Sixth Circuit in Friedrich I stated that the future intentions of the parents are “irrelevant.” 983 F.2d at 1401. Thus, the Friedrich I court dismissed arguments that “pertain[ed] to the future” and “reflect[ed] the intentions of [the mother].” (holding that child’s habitual residence was Germany because child was born there and lived there his entire life, despite the fact that his mother, a member of the armed forces, intended to return to the United States upon her discharge). A child’s habitual residence is the nation where, at the time of his/her removal, 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.” Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007) (citing Feder, 63 F.3d at 224).

The district court found that the children’s habitual residence was Germany. Since 2012, the children had lived in Germany continuously for more than four years, excluding a single trip in 2015 of four weeks to the United States, from which they returned to Germany until their most recent trip. Furthermore, the evidence shows that after their return to Germany, the children continued to be involved in community activities. It also found that Petitioner had custody rights under German law and would d have continued to exercise those rights but for the Respondent’s retention of the children in the United States.

         The court noted that Article 13(a) of the Convention permits the Court to refuse to order the return of children, despite a wrongful removal or retention, if Respondent proves by a preponderance of the evidence that Petitioner “had consented to or subsequently acquiesced in the removal or retention.” Acquiescence or consent to removal of the child “requires more than an isolated statement to a third-party. Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Friedrich II, 78 F.3d at 1070. The Respondent testified that the parties had a conversation in July 2015 pertaining her and the children’s return to the United States, where Petitioner promised Respondent that she and the children would be able to return to Tennessee if things did not work out in their marriage. She testified between the summer of 2015 and the February 2016 accident, the parties “probably talked about that kind of stuff daily. It was a big deal.” The Court, found her testimony highly credible that Petitioner consented to the removal of the children from Germany and found for purposes of the Hague Convention, that Respondent gave his consent for Respondent to return to the United States with the minor child.

Ambrioso v. Ledesma, 2017 WL 27454 (D. Nevada, 2017)[Mexico] [Acquiescence] [Petition denied]

In Ambrioso v. Ledesma, 2017 WL 27454 (D. Nevada, 2017) the Court denied the Petition of Vladimir Gonzalez Ambrioso (Gonzalez) against Garcia for the return of his child, 2 year old child, Francisco, from the United States to Mexico. Francisco was born on February 7, 2014. In July 2014, Gonzalez purchased a home in the Gran Santa Fe II neighborhood of Cancún. Garcia and Francisco. Gonzalez and Delia had divorced, but they remained close friends. .Gonzalez had simultaneous relationships with both women. Gonzalez maintained separate households for each partner, lived with Delia, and visited Garcia regularly. On March 28, 2016, after a  breakup of the couple’s relationship Garcia and her son departed for the United States.  On or about April 4 and 5, 2016, Gonzalez sent Garcia a series of text message demanding the return of Francisco. Once Gonzalez learned that Garcia and Francisco were in the United States, he formulated a plan to visit, or possibly join, them in the United States. The couple rekindled their romance. In text messages, Gonzalez sent gifts, contemplated purchasing a home, and had other family members visit on his behalf. Before leaving for the United States, Gonzalez sold his car and Delia sold the home she shared with him. The district court found that after April 4, 2016 Gonzalez made genuine efforts to establish a home for Garcia and Francisco in the United States; and from April 2016 to June 2016, Gonzalez subjectively intended to allow Francisco to remain in the United States indefinitely. In late June 2016, Gonzalez attempted to enter the United States. He and Delia were detained and eventually removed from the United States.In August 2016, Gonzalez retained Nevada counsel, who filed his Hague application. After his removal, Gonzalez’s attitude changed. To that end Gonzalez, started legal proceedings to have Francisco returned to Mexico. Gonzales claimed that between mid–April and late June, 2016, his agreement with Garcia that Francisco should become a permanent resident of the United States and grow up here was a ruse. The court found that for this two and one half month period before Gonzalez’s failed attempt to enter the United States, he in fact intended to allow Francisco to remain in the United States indefinitely.

The court found that Gonzalez established a claim for return under 22 U.S.C. § 9003(e)(1).  However, if also found that the  Acquiescence exception applied. “[A]cquiescence under the Convention requires either: [1] an act or statement with the requisite formality, such as testimony in a judicial proceeding; [2] a convincing written renunciation of rights; or [3] a consistent attitude of acquiescence over a significant period of time.” Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996). “Courts have held the acquiescence inquiry turns on the subjective intent of the parent who is claimed to have acquiesced.” Rehder v. Rehder, No. C14–1242 RAJ, 2014 WL 7240662 at* 5 (W.D.Wa. Dec. 19, 2014).The court’s acquiesce analysis focused on the third option: “a consistent attitude of acquiescence over a significant period of time.”12 Friedrich, 78 F.3d at 1070. From the case law the  court distilled two rules: 1) action is a stronger indicator of acquiesce than inaction, compare Giles, 2012 WL 704910 at *7 (finding inaction over a 12–month period was acquiescence), with Culculoglu, 2013 WL 4045905 at *11(finding a 4–month period of active support was acquiescence), and 2) the more unambiguous the indictors of acquiesce are, the shorter a period of the time the petitioner’s behavior needs to continue before a court may find that the petitioner has acquiesced to the removal. See Culculoglu, 2013 WL 4045905 at *11. When these rules are applied this action, the court found that Gonzalez did acquiesce to Francisco remaining in the United States indefinitely. Consistent with his behavior throughout his relationship with Garcia, Gonzalez had a change of heart once he learned that Francisco was in the United States. He quickly reestablished contact with Garcia and rekindled their romance. Garcia credible testified that Gonzalez commented that it would be better if Francisco grew up in the United States and that on at least one occasion the couple had phone sex. From about mid–April 2016 to late June 2016, Gonzalez began helping mother and son get established in Las Vegas: 1) he contacted a realtor to look for a home; 2) he sent gifts and financial support; and 3) he sent his brother Elpidio to establish businesses in the Las Vegas area. The court concluded that Gonzalez’s actions were motivated by his subjective intent to allow Garcia to keep Francisco in the United States. He provided financial support for his child including taking the extraordinary step of looking for a house for him. He maintained contact with the child and Garcia and on at least one occasion expressed a desire for Francisco to remain in the United States. Further supporting this conclusion, Gonzalez took steps to relocate to the United States. He explored the possibility of setting up businesses in the United States, he sold his car, and had Delia sell their current home. In short, for a period of two and a half months, Gonzalez demonstrated a consistent attitude of acquiescence. Given the unambiguous nature of Gonzalez’s actions, the tumultuous nature of the couple’s relationship, and the court’s factual findings regarding Gonzalez’s subjective intent from April 2016 to June 2016, the court found that two and one half months was a sufficiently significant period of time to support a finding of acquiescence by a preponderance of the evidence.

Hogan v Hogan, 2017 WL 106021 (E.D. Va., 2017) [Spain] [Federal & State Judicial Remedies] [Diplomatic Immunity]

In Hogan v Hogan, 2017 WL 106021 (E.D. Va., 2017) Petitioner sought the return of the children to Spain. Respondent  moved to dismiss it pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court denied the motion. 

Petitioner and Respondent married in 2001. Both were U.S. citizens. Petitioner and Respondent had two children together, GTH and JWH, who were citizens of both the United States and Brazil. Respondent was employed by U.S. Immigration and Customs Enforcement. In 2012, Respondent accepted a three-year assignment in Spain as an attaché to the United States embassy in that country. Petitioner and the couple’s two children relocated to Spain in June of 2013, where the family resided for the following three years. Shortly before her assignment was to expire, Respondent informed Petitioner that she intended to file for divorce, seek a new job, and relocate their children to the United States. Petitioner objected to the removal of their children from Spain, as they were thriving in their Spanish community. Several weeks later, in the early hours of November 17, 2016, Respondent removed the children from their home in Spain without warning and took them to the airport. Respondent then flew with the children to the United States, where she has since resided with them. Respondent’s assignment in Spain terminated, and Respondent intended to remain in the United States with the children against Petitioner’s wishes.

The district court observed that the purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; the Court “must accept as true all of the factual allegations contained in the complaint,” drawing “all reasonable inferences” in the plaintiff’s favor. E.I. du Pont de Nemours & Co., 637 F.3d at 440. Respondent’s Motion appeared to take as its premise that Respondent was presently entitled to diplomatic immunity in Spain. (“The Respondent’s family members, including the children at issue herein enjoy precisely the same privileges and immunities as their diplomat Mother. This immunity acts as a legal barrier which precludes any Spanish court from exercising personal jurisdiction over Respondent as well as the parties’ children.”) Respondent’s Motion argued that the Petition must be dismissed because the Hague Convention is “inapplicable” to the custody dispute underlying the Petition. She contended that she and her family were entitled to diplomatic immunity in Spain under the Vienna Convention on Diplomatic Relations due to Respondent’s work as an attaché to the United States embassy. The Motion claimed that because her family cannot be haled into Court in Spain, “no Spanish court has jurisdiction to issue an enforceable custody order” should the Court order the children returned to that country. The Court found that Respondent failed to establish that she presently enjoyed diplomatic immunity in Spain. Respondent’s diplomatic position was of limited duration and its term expired. She ceased working as an attaché to the United States embassy in Spain on December 14, 2016. Article 39 of the Vienna Convention on Diplomatic Relations provides that “[w]hen the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so.” As Respondent’s position with the embassy terminated and she left Spain her diplomatic immunity in Spain had come to an end. Accordingly, diplomatic immunity would not bar custody proceedings initiated in that country.

Respondent also claimed that her earlier immunity prevented her children from accruing “habitual residence” status in that country. She contends that her diplomatic immunity created a “bubble” around her family, such that they could not be considered to reside in Spain in a legal sense. Respondent had no legal authority to support this novel proposition, and the Court found her argument unpersuasive.  The Court observed that in Pliego v. Hayes, 86 F. Supp. 3d 678 (W.D. Ky. 2015), the wife of a Spanish diplomat residing in Turkey abducted their son and brought him to the United States. The court rejected the mother’s argument that the father’s diplomatic status prevented him from meaningfully possessing custodial rights in Turkey, reasoning that nothing in Turkish law precluded him from doing so. The Vienna Convention provides “absolute immunity from criminal prosecution and protection from most civil and administrative actions,” which is to say immunity from the enforcement of local law. In addition, diplomats are immune from the receiving state’s “jurisdiction to prescribe” to the extent that laws effecting their position, such as laws regulating employment and national service, are “incompatible with...diplomatic status.” Restatement (Third) of Foreign Relations Law § 464 (1987). Beyond this, however, “a diplomatic agent is subject to law generally” in the receiving state. The Court found that diplomats and their families do not exist in the legal “bubble” Respondent posited.

Alanis v Reyes, 2017 WL 416306 (N.D. Miss., 2017)[Mexico] [Habitual Residence] [Petition granted]

        In Alanis v Reyes, 2017 WL 416306 (N.D. Miss., 2017) the Court granted the petition of  Lourdes Guadalupe Lored Alanis and found that her daughter, DFB, was wrongfully retained from her habitual residence of Mexico by Respondent Jose Carmen Badillo Reyes.

Both Petitioner and Respondent were citizens of Mexico.  They began a relationship in in Mexico. Respondent later moved to the United States. Petitioner later moved to the United States, and both of them resumed their relationship. Both Petitioner and Respondent also testified that they were in the United States illegally. DFB was born on September 9, 2007 in Southaven, Mississippi. DFB was a citizen of the United States. Both Petitioner and Respondent were acknowledged as DFB’s biological parents on her birth certificate. Respondent has since questioned whether he was the father of DFB. Respondent testified that he ordered a paternity test kit on the internet and, according to the instructions, sent to the testing company samples of DFB’s saliva and his own, as well as photographs. Respondent testified that the result of that paternity test was that he was not the father of DFB. From September 2007 to December 2009, Petitioner, Respondent, and DFB lived together in Mississippi. Neither Petitioner nor Respondent had any “immigration status that allow[ed] them to permanently reside in the United States”. On December 3, 2009, Respondent executed a notarized travel permit for DFB to travel with Petitioner. It was  undisputed that both parties intended that DFB would move to Mexico with Petitioner. Petitioner and DFB moved to Petitioner’s family home in Mexico in December 2009 or early 2010. Petitioner and Respondent apparently ended their relationship. For at least two years, Respondent remained in communication with Petitioner and DFB and sent money to cover their basic needs. Petitioner began living with a man, Ruben Gonzalez Espinoza. Petitioner and Espinoza had two children. Petitioner, Espinoza, DFB, and the other two children lived together until August of 2016. On August 14, 2016, Petitioner granted temporary authorization for DFB to travel with Epinoza’s sister, Anel G. Valdivia, from Mexico to Valdivia’s home in Irving, Texas. Petitioner also granted temporary custody of DFB to Valdivia for the time that DFB was in the United States. Respondent subsequently discovered that DFB was in Irving, Texas. Respondent testified that he traveled to Irving to DFB’s school and requested to take her with him. However, the school principal and administrators denied his request, purportedly because Respondent did not have paperwork demonstrating that he was the child’s father. Respondent took DFB for one weekend with Valdivia’s consent, but not Petitioner’s, and when Petitioner learned that DFB had visited with Respondent, she was not pleased. Respondent then retrieved paperwork demonstrating that he was the father of DFB. On August 31, 2016, Respondent traveled to Irving, Texas; showed up at Valdivia’s residence with a police officer from the Irving Police Department; and demanded custody of DFB as her father. Petitioner maintained that during this event, Valdivia called Petitioner and had her talk to the police officer and that Petitioner “asked him not to allow [Respondent] to take [DFB] with him” and explained their situation to him. The police officer nonetheless allowed Respondent to take DFB with him, stating that Respondent’s paperwork demonstrated that he was the father of the child and had the right to take the child. Respondent subsequently took DFB to Horn Lake, Mississippi, against Petitioner’s wishes. Petitioner maintained that more than ten times she requested that Respondent return DFB to Petitioner in Mexico, but that Respondent refused to respond to her requests and stopped answering Petitioner’s phone calls. 

The Court held that in cases such as this one, where the child is so young that she cannot possibly decide the issue of residency, see England v. England, 234 F.3d 268, 273 (5th Cir. 2000), “the threshold test is whether both parents intended for the child to abandon the [habitual residence] left behind,” see Delgado, 837 F.3d at 578 (citing Larbie, 690 F.3d at 310–11). The Fifth Circuit indicates that “context, rather than specific periods of time spent in one location or another, is key to the concept” and that the “primary consideration in the habitual residence determination [is] shared parental intent.” Berezowsky, 765 F.3d at at 467–69. The Court found that  Petitioner  demonstrated by a preponderance of the evidence that DFB’s habitual residence was Mexico. Neither Petitioner nor Respondent was in the United States legally. Their illegal immigration status and the unsteady and temporary nature of their living arrangements in the United States indicated that the United States was not DFB’s habitual residence. Both parties agreed that Petitioner and DFB would move to Mexico. Because Petitioner had no legal basis for entering the United States, Respondent could not reasonably have expected her to return to the United States with DFB. Furthermore, Respondent’s doubts as to whether he was the father of the child raised a question as to whether he even had parental rights. Regardless, both parties  agreed that DFB lived continuously in Mexico from 2010 to 2016, where she attended school. Petitioner began living with a man, Espinoza, and  Petitioner and Espinoza had two children together. Respondent sent Petitioner money to cover basic needs for at least two years after Petitioner and DFB moved to Mexico. The Court concluded that Petitioner demonstrated by a preponderance of the evidence that DFB’s habitual residence was Mexico.

The Court also found that Petitioner had rights of custody with respect to DFB at the time of the wrongful retention. According to the Family Code of the State of San Luis Potosi, she had parental rights with respect to DFB for the approximate six years the two lived in Mexico, enrolling her in school and extracurricular activities, maintaining a household wherein DFB resided, and otherwise engaging in parental responsibilities, The Court also found that Petitioner demonstrated exercise of the rights of custody at the time of the wrongful retention of DFB. Although Petitioner temporarily agreed to allow DFB to attend school in the United States with Valdivia, by definition, that was a temporary arrangement. Further, the Court found a crucial factor in the determination was the arrangement for Valdivia to transport DFB to her mother’s home in Mexico on weekends and holidays. At the hearing, Petitioner argued that it was akin to a boarding school situation. The Court found  this analogy to be well taken. Given all the facts and testimony before the Court, Petitioner  demonstrated that Respondent wrongfully retained DFB in the United States away from her habitual residence in Mexico.  
Finally, the Court found that Respondent failed to demonstrate any applicable affirmative defenses. Respondent did not plead any defenses, as he filed no responsive pleading to the verified petition

Cisneros v Lopez, 2016 WL 7428197 (D. Nev., 2016)[Mexico] [Grave Risk of Harm] [Petition denied]

In Cisneros v Lopez,  2016 WL 7428197 (D. Nev., 2016)  Petitioner, Respondent, and their daughters, AVES  who was nine years old and AIES who was two years old were all Mexican citizens. Respondent and the children left Mexico for the United States on March 17, 2015. Petitioner initiated the case in the district court on January 12, 2016. The Magistrate Judge found that Petitioner met his burden of establishing his case-in-chief for the return but given the clear and convincing evidence of physical and psychological abuse, that returning the children to Mexico would pose a grave risk to their physical and psychological well-being, and recommend that the petition for return be denied. Respondent testified regarding domestic violence. AVES also testified that she saw Petitioner hit Respondent, causing her nose to bleed on two occasions; that when they were on a family camping trip, Petitioner threatened to kill her, AIES, and Respondent; that she was afraid of her father; that she was afraid of the dark and that she had nightmares “[a]bout my dad killing my mom.” When asked whether she feels safe living in Mexico, AVES testified that “I’m scared that my dad [sic] kill my mom.” AVES objected to being returned to Mexico and wanted to stay in the United States. Respondent’s witness Dr. Norman Roitman, an expert in psychiatry testified that AVES maturity level was advanced beyond her chronological age by one or two years, to age ten or eleven. Based on his evaluation, Dr. Roitman diagnosed AVES with post-traumatic stress disorder (“PTSD”) and adjustment disorder with anxiety and depression. Dr. Roitman stated that AVES “has a close anxious bond with her mother, has separation anxiety that’s separate and apart from the PTSD, and separation from her mother could constitute the beginning of a significant psychiatric injury.” He further testified that separating AVES from her mother could result in “posttraumatic reinjury.” Dr. Roitman’s opinions were uncontroverted and were the only evidence before the court on whether returning AVES to Mexico would cause her PTSD to worsen. The Magistrate judge found that Respondent presented evidence of domestic violence directed at her by Petitioner over the course of their nine-year relationship, including physical and emotional abuse. There was some evidence of physical abuse against AVES. Respondent presented uncontroverted evidence that Petitioner caused significant psychological harm to AVES, as well as specific evidence of potential harm that AVES would suffer if she returned to Mexico. Dr. Roitman concluded AVES should not be returned to her father.  Based on Dr. Roitman’s uncontroverted expert opinion testimony, the court found there was a grave risk that return would subject AVES to psychological harm. In addition, there was evidence that returning her to Mexico would expose her to grave risk of physical harm due to escalating domestic abuse. There was evidence that the day before Respondent left home with the children, Petitioner hit AVES in the face, causing her lip to split, and that Petitioner threatened to kill both of the children. The court found that in addition to the risk of psychological harm, there was a grave risk that return would expose AVES to physical harm. Given that Respondent has established the grave-risk defense as to AVES, the court recommended that the petition be denied as to AIES as well, citing Miltiadous v. Tetervak, 686 F. Supp. 2d 544, 556 (E.D. Pa. 2010) (declining to separate siblings and finding that the younger sibling who was not suffering from PTSD would be exposed to the same grave risk of harm as the older sibling suffering from PTSD).

Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) [Mexico] [Grave Risk of Harm Defense] [Petition denied]

          In Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7^th Cir., 2016) the Seventh Circuit affirmed an order of the district court which denied the father’s petition for return of the parties child to Mexico. The parties were both citizens of Mexico who resided in Mexico until December 15, 2014 and were the parents of  A.E., born in 2008, and M.S., born in 2002. Cardoso claimed to have left Mexico with A.E. and M.S. in December of 2014 to escape abuse from Hernandez and protect the children. In August  2015, Cardoso agreed returned M.S. to Hernandez. On December 18, 2015, Hernandez filed a Petition for Return. The District Court found that Cardoso testified credibly that Hernandez would hit her in the presence of A.E. with the intention of having A.E. witness the abuse of his mother. It observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody. The District Court found that Cardoso and AE’s testimony about the domestic violence provided clear and convincing evidence that there was a grave risk of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

The Seventh Circuit observed that Cardoso did not dispute that Hernandez established a prima facie case for wrongful removal. However, Article 13(b) provides that “when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the automatic return required by the Convention should not go forward.” Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). The District Court found that both Hernandez and Cardoso used physical discipline of the children. Hernandez testified that he would spank the children with an open hand and described Cardoso’s physical discipline as “more harsh” because she would pull her daughter’s hair and “really fight with her.” Cardoso testified that she would spank the children with her hand or with a shoe. She objected to the way Hernandez disciplined the children because it was “too much” and he would “hit them very hard” with a belt. The District Court questioned A.E. in camera during the evidentiary hearing. A.E. testified that Hernandez would hit him with a belt if he misbehaved “really bad.” He further testified that he saw Hernandez hit Cardoso with a belt and with his hands and saw him give Cardoso a black eye. A.E. said he was “a little bit” afraid of Hernandez.  The District Judge determined that Cardoso’s testimony that Hernandez abused her repeatedly and in the presence of the children was credible, despite the fact that she allowed her daughter to return to Mexico to live with Hernandez and provided inconsistent testimony about whether Hernandez knew she would leave Mexico with the children. Cardoso’s testimony about the abuse was corroborated by A.E., who testified of Hernandez’s physical abuse toward Cardoso and himself. With the deference given to the District Court, the Court found there was no error in the lower court’s credibility determination.  A district court’s credibility findings are ‘binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.   Moreover, the District Court’s application of the facts in this case to the Article 13(b) “grave risk” standard was appropriate. “[R]epeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child (especially a very young child, as in this case), is likely to create a risk of psychological harm to the child.” Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). The District Court recognized it had to consider “risk in the father’s behavior toward the mother in the child’s presence” in its analysis. Id. The Court having found the factual findings made by the district court supported the conclusion that there was a “grave risk” of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir.,2016)[Italy] Habitual Residence] [Petition denied]

          In Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9^th Cir., 2016) the Ninth Circuit affirmed a judgment which denied Danilo Pennacchia’s petition for return of his minor child to Italy. In observing that the dispute centered around the habitual residence of the child the court pointed out that to determine a child’s habitual residence, they first look for the last shared, settled intent of the parents.  It explained that the district court concluded SAPH’s habitual residence was the United States, and that in doing so, the court applied the correct legal standard by focusing on the shared, settled intent of the parents. The district court acknowledged that the parents’ testimony differed concerning their intentions at the time they left the United States, but found Pennacchia’s “testimony lacked credibility and evidence to support his position.” The Ninth Circuit indicated that it gives heavy deference to factual determinations such as which witnesses to believe and which documents corroborate the most credible version of disputed testimony. The district court found Pennacchia agreed to and signed several documents, that supported the mother’s testimony and evidenced the parties’ initial agreement that “their living arrangement in Italy was conditional and ‘a trial period.’ It held that the district court did not err when it concluded that, for both parents, “the settled intention was for SAPH’s habitual residence to be the United States.

The Ninth Circuit indicated that for SAPH’s habitual residence to change, “the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence.” Mozes, 239 F.3d at 1081. Although it is possible for a child’s contacts standing alone to be sufficient for a change of habitual residence, in view of ‘the absence of settled parental intent, [we] should be slow to infer from such contacts that an earlier habitual residence has been abandoned.’ To infer abandonment of a habitual residence by acclimatization, the ‘objective facts [must] point unequivocally to [the child’s] ordinary or habitual residence being in [the new country].’  It indicated that SAPH had significant contacts in Italy, but the district court did not find a shared parental intent to abandon her habitual residence in the United States or that the objective facts pointed unequivocally to a change in SAPH’s habitual residence. Pennacchia did not meet his burden on acclimatization, and therefore, the district court did not err by concluding SAPH’s habitual residence under the 1980 Hague Convention remains the United States.

         

Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) [Turkey] [Grave Risk of Harm] [Attorneys Fees] [Petition Granted]

In Pliego v Hayes, 2016 WL 7048693 (6^th Cir., 2016) the state of habitual residence was Turkey, where the Petitioner father was assigned as a Spanish diplomat. The mother removed the child to the United States twice, and twice was ordered by the district court to return the child to Turkey.( Pliego v. Hayes, 86 F.Supp.3d 678, 696–97 (W.D. Ky. 2015) (“Pliego I”); Pliego v. Hayes, No. 5:15–CV–00146, 2015 WL 4464173, at *7 (W.D. Ky. July 21, 2015) (“Pliego II”). During the second proceeding, Pliego took steps for his diplomatic immunity to be waived, which would be necessary for Turkish courts to adjudicate the child’s permanent custody if his second ICARA petition was successful and the child was returned to Turkey. The Spanish Embassy sent diplomatic notes to Turkish authorities waiving Pliego’s immunity from jurisdiction and execution with regard to the custody case. The mother appealed the second return order, arguing that there was a grave risk of an “intolerable situation” because the father’s diplomatic status undermined the ability of the Turkish courts to properly adjudicate custody.

As an initial matter, the Sixth Circuit held that the case was not moot. By appealing Pliego II, Hayes was asking in effect for a “re-return” order instructing that the child be brought back from Turkey to the United States. Such a re-return order may be difficult to enforce, but this alone does not render an ICARA case moot, Chafin v. Chafin, ––– U.S. ––––, 133 S.Ct. 1017, 1023–26, 185 L.Ed.2d 1 (2013). The essential facts have not changed since Hayes’s appeal of Pliego II. The child was still in Turkey. An exit ban still prevented either parent from taking him outside of that country. Turkish courts were still adjudicating the underlying custody dispute. Accordingly, this case was not moot.

The Sixth Circuit held that the treaty phrase “intolerable situation,” under the second prong under Article 13(b) can encompass situations where the courts of the state of habitual residence are practically or legally unable to adjudicate custody. However, that was not the case here because, as found by the district court, the waiver by the Spanish government of the father’s diplomatic immunity sufficiently permitted the Turkish courts to adjudicate custody. The Sixth Circuit held that Hayes failed to establish an “intolerable situation” under the facts of this case, and review of the facts was for clear error. Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir. 2007). None of the district court’s findings of fact were clearly erroneous, and they clearly established that Turkish courts could properly adjudicate the underlying custody dispute and protect the child.

          The Sixth Circuit rejected Pliego’s requests for an award of attorneys’ fees and costs incurring during this appeal. It noted that Article 26 of the Hague Abduction Convention provides that “[u]pon ordering the return of a child ... the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, ... to pay necessary expenses incurred by or on behalf of the applicant.” The ICARA provision implementing this language provides that “[a]ny court ordering the return of the child pursuant to an action brought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3) (2012). The Court held that  these provisions apply only to courts “ordering the return of the child.” Thus, this provision did not apply to it, which was not a court ordering the return of the child but was a court affirming another court’s order to return the child. This interpretation was supported by the decisions of sister circuits that have addressed the issue. Hollis v. O’Driscoll, 739 F.3d 108, 113 (2d Cir. 2014); West v. Dobrev, 735 F.3d 921, 933 n.9 (10th Cir. 2013). However, it did not reach the issue of whether the district court that ordered the child’s return in Pliego II may, upon separate motion, award fees incurred on this appeal.

Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016)[Mexico] [Age & maturity defense][Petition denied]

In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking the 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 the 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.

Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016)[Mexico][ Habitual Residence] [Petition denied]

          In Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016) Plaintiff Anita Castro Sarabia (“Castro”) filed a complaint requesting the court order the return of KMRC, her seven-year-old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to Mexico. The district court found that the United States was the child's habitual residence and dismissed the complaint. It found that in 2008, Castro and Ruiz met in Albany, Oregon. They lived together for a few months before separating. Castro gave birth to KMRC in April 2009.  In 2011 Castro had Ruiz’s permission to travel for seven months to Mexico, Castro’s native land. However, she and the child remained there for four years,  until he was retained in the United States in 2015, by Ruiz, after a visit to Oregon. The Court pointed out that a young child may acquire a new habitual residence in one of two ways: (1) through the parents’ shared settled intention to abandon the initial habitual residence; or (2) if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.” Mozes, 239 F.3d at 1076. Neither had occurred here. The district court found that Castro made the unilateral decision to change KMRC’s country of habitual residence from the United States to Mexico. Ruiz never consented or acquiesced to that change. Ruiz always firmly wished for KMRC to return to live in the United States. The Court's reading of Mozes, along with practically no evidence of KMRC’s acclimatization in Mexico, led it to conclude that Castro failed to meet her burden of demonstrating Mexico was KMRC’s country of habitual residence.

Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016)[Canada] [Grave Risk of Harm][Petition denied]

In Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016) Thomas filed a Petition against Jean Marceau Orion on June 9, 2016, seeking the return to Canada of the Parties’ three children, JMO, who was 12 years old and was born in 2004 in Miami, Florida; SRO who was 10 years old and was born in 2005 in Fort Myers, Florida; and MWO who was 9 years old and was born in 2007 in Fort Myers, Florida, and lived in Canada since 2008 with Thomas. She alleged Orion wrongfully retained the Children in Lehigh Acres, Florida, after a visit on June 28, 2015, when they did not return as agreed in August 2015. Orion was married and living with his wife and the Children in Lehigh Acres, Florida. The Children were enrolled in the Lee County School System and did not wish to be returned to Canada. Orion asserted he kept the Children in Florida because of a DPG report from 2013 and the statements made by the Children that they were physically abused. He also had concerns about the comments made by MWO that he sometimes went hungry.  The testimony presented at the hearing established that since July 2008 the Children attended school, went to church, and lived with Thomas in Canada. Orion sent child support payments to Thomas in Canada and traveled to Canada to visit with the Children on a yearly basis. The Children had not returned to the United States between 2008 and June 2015. There was an agreed upon date—August 2015—for the Children to return to Canada. The Court found by a preponderance of the evidence that the Children were habitual residents of Canada at the time they came to Florida and Orion retained them past the agreed upon date of return. The Court concluded that Thomas has established a prima facie case for return. However, it denied the petition finding that evidence presented at the hearing established that returning the Children to Canada and Thomas would expose them to grave physical or psychological harm. The last report submitted by DPG established the Children's’ living conditions were deplorable. The floors were filthy, dried food stuck to the walls, the refrigerator door was open to the point the inside was no longer cool, and there was very little food inside. MWO reported that he was hungry at school because he did not get any breakfast and noted that he only had cereal for supper the night before. MWO was physically hit by his oldest half-brother, DD. MWO also reported that Thomas hit him with a hair brush on his hand and back. Thomas admitted that her estranged husband Bonomo also hit the Children. The Children reported that Bonomo would sometimes have the oldest child, JMO, and/or DD hit the younger children while he watched. In 2008, DD reported to school authorities that Thomas stuffed socks into his mouth as a form of punishment. Further, Thomas admitted instructing the Children to keep quiet and not to report any physical abuse they received or any meals they missed. Given the abuse suffered by the Children at the hands of Thomas and Bonomo, the lack of food, the uncleanliness of the living environment, and Thomas’ proclivity to attach herself to men she did not know well, the Court found by clear and convincing evidence there was a grave risk of physical or psychological harm that would be caused by returning the Children to Canada. The Court denied the petition.

Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016)[Czec Republic] [Habitual Residence] [Petition granted]

          In Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016) the United States Magistrate Judge recommended that the fathers Petition for an order directing the return of his minor child, L.N.R., to the Czech Republic be granted. Petitioner was a citizen of the Czech Republic. He and a law partner had a law firm in Prague. Respondent, Veronika Marcoski was born in the Czech Republic and resided there until age fourteen.when she moved to Redington Beach, Florida.  Respondent passed the Florida Bar exam in 2010 and was later admitted to the Florida Bar in 2012.  After Respondent met petitioner Respondent began spending significant time in the Czech Republic. In April 2014, Petitioner and Respondent jointly purchased a residence with a right of first refusal in the event either wanted to sell their ownership share. On July 14, 2015, L.N.R. was born in Miami, Florida. After  L.N.R.’s birth in July 2015 through January 2016, Petitioner and Respondent were in a committed relationship with a shared intent for the foreseeable future to live with L.N.R in the Czech Republic. Respondent resided at times in the Czech Republic from 2012 through August 2014. The Magistrate Judge found that Petitioner’s case was established by a preponderance of the evidence. He found that Respondent’s expressed desire to give birth to L.N.R. in the United States, and later pursuit of United States citizenship for L.N.R., were only reflective of Respondent’s desire for L.N.R. to have dual citizenship, like her, so that L.N.R. would be able to avail himself in the future of the benefits that result from the dual citizenship. He did not find that Respondent’s desire to give birth in Miami and a Declaration of Intent to become a citizen demonstrated an intent by Respondent to reside in the United States with L.N.R. He found that after L.N.R.’s birth, Petitioner, Respondent, and L.N.R. resided together as a family, and, more significantly, Petitioner and Respondent had, at that time, a mutual settled intent to reside as a family in the Czech Republic.  Petitioner and Respondent were not married, and, from L.N.R.’s birth in July 2015 to the eventual end of their relationship in January 2016, there were signs that Petitioner and Respondent’s relationship was deteriorating. However, Petitioner demonstrated, by a preponderance of the evidence, that at least up to L.N.R.’s first Christmas in 2015, Petitioner and Respondent had a mutual settled intent to reside as a family with L.N.R. in the Czech Republic. See Delvoye, 329 F.3d at 333 (stating “the mere fact that conflict has developed between the parents does not ipso facto disestablish a child’s habitual residence, once it has come into existence”). The Magistrate concluded that L.N.R.’s habitual residence was in the Czech Republic; that Petitioner established a prima facie case of wrongful removal; and that no defenses to return had been established. 

Application of Gonzales v Batres, 2015 WL 12831299 ( D. NM, 2015)[Mexico] [Habitual Residence] [Petition granted]

          In re Application of Gonzales v Batres, 2015 WL 12831299 ( D. NM, 2015) the district court granted the petition and ordered the immediate return of the Children to Petitioner’s custody in Mexico. Petitioner and Respondent were Mexican citizens. Respondent was a lawful permanent resident of the United States living in Las Cruces, New Mexico.  After Respondent lawfully entered the United States, he hired a third party to bring Petitioner and her two children from a previous relationship unlawfully into the United States.  After Petitioner moved into Respondent’s home their children E.E.C.M. and D.M.C.M. were born in that city. Both of the Children were United States citizens. Petitioner decided to end the relationship with Respondent, and on April 3, 2013, without informing Respondent, took the Children, along with her two older children, to Gómez Palacio, Durango, Mexico, where Petitioner and her four children moved in with Petitioner’s mother. Respondent discovered Petitioner’s whereabouts and traveled to Gómez Palacio on April 5, 2013, at which time he saw Petitioner and the Children. Respondent visited the Children in Gómez Palacio approximately every other weekend thereafter, sometimes taking them to the home of his mother.  The parties entered into an Agreement on November 29, 2013,  which gave Petitioner primary custody of the Children while allowing Respondent to visit with the Children every other weekend. After picking up the Children for a scheduled visitation on Saturday, December 14, 2013, Respondent returned to the United States with the Children without Petitioner’s consent. 

The district court found that the Children’s habitual residence was in Durango, Mexico. Although the Children were only living in Mexico for approximately eight months prior to their removal, Re Bates and Feder made clear that habitual residence may be established in such a brief period if the parents’ shared intentions and the children’s living arrangements “amount[ ] to a purpose with a sufficient degree of continuity to enable it properly to be described as settled.” Re Bates, 1989 WL 1683783. This may be true even if the Children spent a majority of their lives in the United States before arriving in Mexico, and even though the Children were U.S. citizens, seeFriedrich I, 938 F.2d at 1401. Here, E.E.C.M. had begun schooling in Durango, and D.M.C.M. had sometimes received medical care in that state, both of which are strong evidence of settled purpose. Moreover, although Respondent was plainly not happy about the prospect of his children living away from him in Mexico, his frequent visits to Gómez Palacio and the Agreement he worked out with Petitioner, whatever its legal effect, were evidence that both parents were planning their lives around the Children living in Durango.  The fact that a child has spent most of his or her life in one country, while sometimes relevant, is not dispositive. Feder, 63 F.3d at 224. The Court rejected Respondents argument that it was Petitioner who wrongfully removed the Children from the United States without Respondent’s consent, implying that the Children’s habitual residence should be measured from just prior to that removal. However, Respondent never filed a petition under the Hague Convention alleging that Petitioner wrongfully removed the Children. Once a petition is filed, a court should consider only whether a respondent’s removals of a child are wrongful” rather than “whether the petitioner’s removals of the child were wrongful.” Ohlander, 114 F.3d at 1539-40. Thus, the fact that the Children may have been habitual residents of the United States until Petitioner took them to Durango, Mexico was irrelevant to the proceedings. The appropriate point in time to consider in this case was not when Petitioner fled with the Children to Mexico, but when Respondent fled with the Children to the United States. Because the parents’ shared intentions showed acclimatization and a degree of settled purpose for the Children in Mexico on the date of their removal from that country, the Court held, inter alia, that the Children’s habitual residence at the time of removal was Mexico. 

Villatoro v Figueredo, 2015 WL 12838861 (M.D. Florida, 2015)[Guatamala] [Federal & State Judicial Remedies] [Stay pending appeal]

          In Villatoro v Figueredo, 2015 WL 12838861 (M.D. Florida, 2015) the district court denied the Respondents motion for a stay of the judgment which granted the fathers petition and ordered that SEM be returned to Guatemala for any custody proceedings.  In deciding the motion the court considered “(1) whether the stay applicant has made a strong showing that [she] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013). The Court found that Respondent’s failed to make of showing that she was likely to succeed on the merits, and the  balance of the other factors did not“weighs heavily in favor of granting the stay.” Garcia-Mir, 781 F.2d at 1453. Respondent acknowledged, that if she were to prevail on appeal, she would be able to obtain a re-return order. It was not clear that Respondent would be unable to enforce, or that Petitioner would refuse to comply with, a re-return order. Further, a stay would substantially injure SEM, who would lose precious time to readjust to life in Guatemala, where she has resided her entire life prior to her removal to the United States.

Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014)[Germany] [Federal & State Judicial Remedies] [Comity][Petition granted]

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.

Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) [Hungary] [Consent and Aquiesence] [Age of Maturity Defense] [Petition granted]

           In Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) the district court granted the Petition of Simona Oana Olson for an Order directing that the parties’ minor children, L.S.O. and S.M.O., be returned to Hungary. Petitioner and Respondent married in 1996 in Bucharest, Romania. The parties moved to Visalia, California, approximately a month-and-a-half later to be close to Respondent’s parents. In September 1999, while living in Dallas, Texas, they had twin boys.Approximately five years later in 2004, the family moved to Budapest, Hungary. According to Petitioner, they moved to Hungary for three reasons: Petitioner wanted to attend dental school, Respondent wanted to get his master’s degree, and they wanted to be closer to Petitioner’s family in Bucharest, Romania. The parties purchased a home in approximately 2005, which located in Budapest, Hungary. They resided in Budapest, Hungary, as a family, until 2008, when Respondent took employment in Bucharest, Romania, some eleven to twelve hours drive away from their home. During that time, the couple lived in two different apartments, Respondent lived with Petitioner’s sister and her family in Romania, while Petitioner and the children remained at the family home in Hungary. The parties had plans for moving at the conclusion of Petitioner’s education in Hungary, so they would be in the same country as a family. With these plans in mind, the parties entered into a Residential Lease Agreement with David Barnie and Alexis Barnie for a term of one year in June 2012. As planned on July 30, 2012, the children traveled from Hungary to the United States in the care of a paternal aunt and arrived in the United States on July 31, 2012. Once in the United States, the children engaged in a summer vacation with their paternal grandparents. On August 12, 2012, while the children were enjoying their summer vacation, Petitioner and Respondent moved much of their belongings to Bucharest, Romania. Petitioner had graduated from dental school approximately a month prior to their relocation. Once in Romania, Petitioner applied for her Romanian dental license, and she was waiting on her license. Respondent left Budapest, Hungary, as planned,  to retrieve the children, on a round-trip plane ticket on September 10, 2012. On September 20, 2012, neither the children nor Respondent returned to Hungary. Between September 17 and 18, 2012, Petitioner sent multiple Facebook messages and tried to call Respondent numerous times during the night. On September 17, 2012, Respondent advised Petitioner that he was extending the children’s stay in America until he and she could reach an agreement on how to proceed with the marriage and divorce. On September 24, 2012, Respondent obtained an Ex Parte Order of Custody from the Sumner County, Tennessee, Circuit Court. Respondent responded to the United States Central Authority refusing a voluntary return on October 22, 2012. On February 14, 2013, Petitioner’s Verified Petition requesting the return of the children was filed with the Court. 

The district court found that although the the children were United States citizens, were already fluent in English, and were temporarily enrolled in a Tennessee public school, these facts, were not sufficient to outweigh the volumes of evidence suggesting the children would have perceived, and in fact did perceive, their stay in the United States to be merely a temporary vacation. The evidence about the children’s lives in Hungary and their own statements indicated that immediately prior to their retention in the United States, Hungary was their habitual residence. The district court found that the petitioner made out a prima facie case and that the respondent did not establish consent or acquiescence.  Petitioner’s agreement to allow the children to travel to the United States for a vacation did not constitute consent to their relocation here, and the actions she took to secure their return under the Hague Convention overwhelmingly supported the finding that she did not consent to their permanent residence in the United States. Moreover, Respondent has failed to prove that Petitioner acquiesced in his retention of the children in the United States. Although Respondent argued that Petitioner agreed to an extension of the vacation, this delay did not indicate her acquiescence to the children’s retention in the United States. Petitioner never said nor did anything which would constitute acquiescence. Rather, after learning of Respondent’s intentions, and before she even knew Respondent had begun divorce proceedings, Petitioner’s Hungarian Application for Return had been filed with the Hungarian Central Authority. Further, her attempt to negotiate a Tennessee parenting plan with Respondent did not constitute acquiescence.

Based upon the consideration of the children’s testimony, the Court concluded both children reached the age and maturity level at which their objections, if any, should be taken into account. The court found that the children were impressive, well-mannered, and articulate thirteen-year-old boys. Given the choice, both children would prefer to remain in the United States.  Although the children displayed a preference (and particularly S.M.O., a strong preference) for remaining in the United States, neither boy expressed an objection to his return. The court concluded that absent such objection the maturity exception defense was not established by Respondent.

Anderung v Anderung, 2013 WL 12142385 (S.D. Iowa)[Sweden] [Habitual Residence] [[Grave risk of harm] Petition granted]

In Anderung v Anderung, 2013 WL 12142385 (S.D. Iowa, 2013) the district court granted the Petition of  Magnus Anderung (Magnus), to have the couple’s minor child, L.A, returned to Sweden.  Magnus was a citizen of Sweden. Raina was a citizen of the United States. They were married in Iowa, in June 2007. After the wedding, the couple traveled to Magnus’ hometown of Gavle, Sweden, where they lived with Magnus’ mother while Magnus took a summer job. The couple returned to New York City at the end of August 2007. Late in September 2007, Magnus and Raina returned to Gavle and moved into an apartment. The couple stayed in Gavle until March 2008. In March 2008, the couple moved to Surrey, England, and lived in an apartment. In October 2008, the couple was residing in London and got into an argument.The police arrested Magnus and charged him with second-degree assault. Once the trial began, Magnus decided to plead guilty. After Magnus was released from the London jail, the couple reconciled, and in January 2009, Raina became pregnant with L.A. In May 2009, the couple moved back to Sweden. L.A. was born in Sweden on September 27, 2009.Magnus testified, that by May 2011, at least twice a month Raina was assaulting him and threatening to call and tell the police that he had hit her. On October 18, 2011, Magnus filed for divorce in the District Court of Gavle and sought sole custody of L.A.  Magnus gave his his express consent for L.A. to travel from Sweden on May 27, 2012, for a visit to the U.S. Reina testified that, it was by mutual agreement that Raina and L.A. would come to the U.S. and stay indefinitely and that Magnus would join them at a later date Magnus disputed Raina’s contention and argues Raina wrongfully retained L.A. in the U.S. after August 25, 2012. 

The district court found that the child’s habitual residence was Sweden. On May 27, 2012, when L.A. and Raina left Sweden, L.A. was two years and eight months old. L.A. was born in Sweden, lived her entire life in Gavle, Magnus’ mother and three of his siblings lived in Gavle, and L.A. attended preschool classes with other children in Gavle. Raina testified that she took mostly summer clothing and a few of L.A.’s toys and only brought to the U.S. what she could fit into four suitcases. The court observed that from a child’s perspective, to be taken away from the only place known to her as home without saying goodbye to immediate family or friends and to have most of her belongings left behind is inconsistent with a settled purpose to abandon that country as the child’s habitual residence. The court found that the parents’ conduct leading up to Raina and L.A.’s departure belies the assertion that when Raina left on May 27, 2012, the couple had a “settled purpose” to abandon Sweden. Raina did not move out of her apartment in Gavle and continued to pay rent even though she had a month-to-month lease and could have discontinued the lease at any time; Raina informed L.A.’s preschool that L.A. was taking summer vacation and would return in August; Raina took only summer clothing and a few of L.A.’s toys and keepsakes, leaving most of their belongings in Sweden; Raina obtained round-trip rather than one-way tickets from Sweden to the U.S.; Raina did not notify the Swedish Social Insurance Agency that she was permanently leaving Sweden and instead continued to receive benefits for at least three months after she left; and neither Magnus nor Raina withdrew their divorce and custody proceedings that were pending in the District Court of Gavle. The record evidence simply does not support Raina’s contention that the couple had a settled purpose to abandon the country of mutual residence, Sweden, to take up residence in the U.S. Approximately eight weeks passed between August 25, 2012, the onset of L.A.’s wrongful retention in the U.S., and October 31, 2013, when Magnus filed an application for assistance under the Convention with the Swedish Foreign Ministry. Magnus filed the Verified Complaint in this case on February 14, 2013. The Court held that to find Raina’s assertions that L.A. had become acclimatized in the U.S. support a finding that the U.S. has become L.A.’s habitual residence would run contrary to the purposes of the Convention. An abducting parent who retains a child in a foreign country and argues against the child’s return because a change in residence would be demonstrated traumatic for the child runs contrary to the purposes of the Convention. 

The evidence in this record that Magnus gave his consent for L.A. to come to the U.S. for a visit from May 27, 2012, until August 25, 2012. Raina’s assertions failed to demonstrate acquiescence. The Court rejected Raina’s argument that L.A. would be at grave risk of harm and should not be returned to Sweden due to Magnus’ history of violence and because of the failure of the Swedish judicial system to provide protection. Magnus and Raina had a history of volatile arguments but there were no major incidents from the time Raina became pregnant in 2009 until September 2011. There was no evidence that Magnus ever harmed L.A. Raina’s criticism of inaction by the Swedish authorities was also contrary to the record. The Court was confident that, contrary to Raina’s assertions, Sweden had a competent child welfare system in place. The court found that Raina utterly failed to present any evidence, that L.A. would be at grave risk of harm if she is returned Sweden and that Raina had not met her burden of proving an affirmative defense preventing L.A.’s return to Sweden.