Ovalle v. Perez, --- Fed. Appx. ----, 2017 WL 780791 (11th Cir.,2017)[Guatemala ][Habitual residence][Due Process] [Petition granted]

In Ovalle v. Perez, --- Fed. Appx. ----, 2017 WL 780791(11th Cir.,2017) Maria Alejandra Reyes Ovalle (“Reyes”), a Guatemalan citizen, alleged that her child’s father, Noe Manuel Perez, an American citizen, abducted the child and wrongfully retained him in Florida.

Perez, a United States citizen and resident of Florida, met Reyes in Guatemala, and the two began a romantic relationship. In March 2015, Reyes became pregnant with E.L.  In June 2015, Reyes traveled to the United States to stay with Perez. He testified that she was merely testing the waters to see what life in Florida with Perez would be like; Perez testified that it was their mutual intention to raise their child together in Florida. Reyes left the overwhelming bulk of her personal belongings in Guatemala. Reyes returned to Guatemala a little over a month after arriving in Florida. Perez returned to Guatemala in late September 2015 to bring Reyes back to Florida. Reyes testified that Perez  presented her with an engagement ring, which she accepted but never wore. In early October, Perez and Reyes returned to Florida. The great bulk of Reyes’s possessions, including her pets, remained in Guatemala. Reyes received an offer to purchase her business, but she turned it down in part because she was uncertain that her relationship with Perez in Florida would work. Reyes also had a house under construction in Guatemala at the time, and she did not turn off utilities at the house; she continued to pay her utility bills even though she was in Florida. She again entered the United States on a tourist visa. According to Reyes, she never told Perez that she was coming to Florida permanently; rather, she told him that she was merely coming to try Florida again. Perez disagreed, testifying it was his understanding that Reyes was coming to Florida to stay and that they both intended to raise a family in Florida. E.L. was born in Florida in December 2015. In February 2016, when E.L. was first able to travel, Reyes, Perez, and E.L. took a trip to Guatemala. While in Guatemala, Reyes met with an immigration attorney who advised her that because she had spent almost five months in the United States on a tourist visa—and because she had given birth to a child during that period—she risked being denied entry to the United States again. The attorney also advised her that because Perez and E.L. were American citizens, Perez would be able to enter the United States with E.L. Reyes subsequently applied for and obtained “Security Measures”—essentially, a restraining order against Perez—in Guatemala, claiming that she was “a victim of abuse, psychological, economic, moral and mental violence, threats, indignities and the most important he is threatening me that he will take my son [a]way because he has American nationality.” Reyes did not inform Perez about the Security Measures, but did tell him that she and E.L. would not be returning to the United States. Perez returned to Florida and obtained an “Order to Pick-Up Minor Child” from the Broward County Circuit Court. Perez did not inform Reyes about the order. After finding out about the Guatemalan Security Measures, Perez filed a response in opposition to them. In Guatemala, E.L. lived with Reyes and her parents and brother, regularly attended church with them, and regularly saw a pediatrician. On a fourth visit to Guatemala in July 2016—for E.L.’s baptism—Perez devised a scheme to remove E.L. to the United States. Perez drove off with E.L. He then drove back to the United States through Mexico. After arriving, Perez informed Reyes that he was in the United States with E.L., who was safe.

On September 7, 2016, Reyes filed a petition in federal district court requesting relief under the Hague Convention, After the trial, the district court entered an order granting Reyes’s petition and requiring E.L.’s immediate return to his mother. The district court concluded that Reyes and Perez never shared an intent to reside in Florida or Guatemala and that the child’s only habitual residence was in Guatemala with his mother. The district court further found that Perez’s removal of E.L. was in breach of Reyes’s custody rights under Guatemalan law, which rights Reyes was exercising at the time of E.L.’s wrongful removal. Thus, the district court ruled, the Hague Convention required that E.L. be returned to Reyes. The Eleventh Circuit affirmed.

 The  Eleventh Circuit held that the district court did not err in determining that E.L.’s habitual residence was Guatemala. The parties’ testimony was in conflict with regard to Reyes’s intentions when she moved to Florida. The district court resolved the conflict in favor of Reyes—finding that she had no settled intent to raise E.L. in Florida. The district court found that although Perez and Reyes had discussed marriage, they never announced an engagement. Crucial to the court’s finding was the fact that Reyes was in Florida on a tourist visa that only permitted her to stay in the country for six months at a time. Aside from one meeting with an immigration attorney, neither Reyes nor Perez took any steps to change Reyes’s immigration status. In concert with her temporary immigration status, Reyes left virtually all of her possessions—including her pets—in Guatemala, and she made no plans to sell or close her business there. The evidence showed that Reyes only remained in Florida after the birth of E.L. because her midwife advised her to wait to ensure E.L.’s health, and she had to wait for E.L.’s passport to issue. In short, ample evidence—much of it undisputed—supported the district court’s finding that Reyes had no intent to raise E.L. in Florida; the district court’s findings were not clearly erroneous. With respect to the district court’s conclusion that Florida was not E.L.’s habitual residence, Ruiz was on point. There, the court found that the parents had no settled intent to reside in Mexico where the “numerous objective facts” indicated that the mother’s “intent with respect to the move to Mexico was clearly conditional.” Ruiz, 392 F.3d at 1254. Reyes’s behavior here created an equally strong—if not stronger—inference that there was no settled indent to raise E.L. in Florida. The district court also properly found that the parties had no settled intent to raise E.L. in Guatemala. Therefore, the question was whether the district court properly found that E.L. became habitually resident in Guatemala before Perez removed E.L. to Florida. 

The court concluded that it did, persuaded by the district court’s reliance on Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006), which featured a similar fact pattern. Perez voluntarily left Guatemala after he was informed that neither Reyes nor E.L. would return to the United States. Instead of following the procedures outlined by the Hague Convention, Perez initiated a custody proceeding in the United States, received a favorable outcome, and engaged in self-help by returning to Guatemala and abducting E.L.As in Kijowska, Perez’s failure to “pursue his legal remedy” under the Hague Convention weighed in favor of finding that E.L’s habitual residence was in Guatemala.
The district court also properly considered E.L.’s settlement in Guatemala in determining that it was E.L.’s habitual residence. “Where a child is born while his  . . .  mother is temporarily present in a country other than that of her habitual residence it does seem, however, that the child will normally have no habitual residence until living in a country on a footing of some stability.” Delvoye, 329 F.3d at 334.  Here, the district court properly relied on a number of factors in determining that E.L. was living in Guatemala with some stability, including the facts that E.L. was: living in a house with his mother, grandparents, and uncle, with whom he was bonding; regularly seen by a pediatrician in Guatemala; to be baptized in Guatemala; and regularly attending church with Reyes and her family. Moreover, Perez repeatedly sent money to Guatemala to support E.L. and visited the child in Guatemala multiple times prior to the abduction. Were any greater quantum of contacts with a particular location required to establish an initial habitual residence, parents could freely engage in a continuous game of abduction ping pong, given the many months or even years in which they could freely abduct the child before any particular location became the child’s habitual residence. It concluded, as did the district court, that at the time E.L. was abducted, his habitual residence was in Guatemala.

The Eleventh Circuit held that the district court did not err in determining that Reyes had custodial rights over E.L. under Guatemalan law. As the district court explained, Article 252 of the Civil Law Code of Guatemala grants parental power over minor children jointly to a married mother and father, and in any other case to the parent in whose power the child is. Because Reyes and Perez were not married, the question became: in whose power was E.L. at the time he was removed to the United States? Article 261 of the Civil Law Code notes that children shall be in the power of the mother where the mother is unwed, unless both parents agree that the father should have custody. Consequently, the district court properly determined that under Guatemalan law Reyes had custodial rights over E.L. sufficient to render Perez’s removal of E.L. unlawful.

The Eleventh Circuit held that the district court did not violate Perez’s due process rights by giving him only seven days to prepare for an evidentiary hearing. Specifically, neither the Convention nor ICARA, nor  the Due Process Clause of the Fifth Amendment requires that discovery be allowed or that an evidentiary hearing be conducted as a matter of right in cases arising under the Convention. In West, the district court possessed the petition, the respondent’s answer to the petition, and the affidavit of a psychologist (provided by the respondent) who had interviewed the children at issue and noted possible child abuse on part of the petitioner. West, 735 F.3d at 926-27. The psychologist refused to testify at a hearing, so the respondent asked the court to appoint a psychologist to interview the children.  The court declined to do so, found that no evidentiary hearing was necessary, and ordered the respondent to return the children to the petitioner. On appeal, the Tenth Circuit held that the respondent “received a meaningful opportunity to be heard,” which is “all due process requires in the context of a Hague Convention petition.” Here, the district court conducted fact-finding substantially more robust than the district court in West. Instead of relying on written submissions alone, the district court held a four-day evidentiary hearing. At the hearing, Perez was permitted to enter documentary evidence, call witnesses, and cross examine Reyes’s witnesses. Like the respondent in West, Perez “received a meaningful opportunity to be heard,” satisfying his due process rights.

Salguero v. Argueta, 2017 WL 1113334 ( E.D.N.C, 2017)[El Salvador] [Remote Testimony]

In Salguero v. Argueta, 2017 WL 1113334 ( E.D.N.C, 2017)  Petitioner sought return of his five-year-old daughter, S.M.M.F. (the “child”) to El Salvador, her home country. The district court granted the motion by Petitioner pursuant to Fed. R. Civ. P. 43(a) that the Court permit him and other witnesses residing in El Salvador to testify by video-conference or telephone at the hearing. Petitioner stated that he intended to call two witnesses to testify in support of his Petition. One was Petitioner’s Salvadorian counsel who intended to testify regarding the parties’ divorce and the subsequent proceedings. A second was Petitioner’s expert witness—a Salvadorian family law attorney. Both witnesses resided in El Salvador. Petitioner explained that he was financially unable to travel to the United States for this testimony and would likely be unable to obtain a visa to enter the country by the hearing. Likewise, he was unable to pay for his witness’s travel.

The district court observed that under Rule 43(a), a court may permit remote testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.”  In addition to good cause, Rule 43(a) requires appropriate safeguards, including: (1) Accurate identification of the witness; (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. The Court found good cause existed for permitting the remote testimony. Petitioner represented to the Court that he could not afford the international travel and that he would be unable to obtain a visa to enter the United States by the hearing. The Court noted that
in Alcala v. Hernandez, 2015 WL 1893291, at *3 (D.S.C. Apr. 27, 2015) the Court allowed a  petitioner to testify remotely after the court required petitioner to be properly identified and testify from a private room, free of outside influence and the petitioner’s counsel was also required to troubleshoot his videoconferencing connection with the courthouse staff prior to his testimony. The Court directed that Petitioner locate a conference room from which to testify by video-conference, free from outside influences. Likewise, his witnesses should be prepared to testify from a conference room where they are alone and free from outside influence. The Court directed that Petitioner and his witnesses residing in El Salvador shall be permitted to testify by video-conference. Where video-conferencing is not available, Petitioner and his witnesses residing in El Salvador shall be permitted to testify telephonically. Petitioner was to arrive one hour prior to the hearing so that his counsel could confirm with courtroom staff that the technology was working properly such that all members present in the courtroom could hear and understand his testimony. Petitioner was ordered to be prepared to provide sufficient identification at the hearing to properly identify himself and his witnesses. Petitioner was ordered to  to testify from a closed room and no other person shall be permitted to communicate with Petitioner during the proceedings, either in person or otherwise, unless that communication is on the record in open court.

Alanis v. Reyes, 2017 WL 1498252( N.D. Miss, 2017) [Mexico][Attorneys Fees]

In Alanis v. Reyes, 2017 WL 1498252( N.D. Miss, 2017) the Court granted the petition and ordered that DFB be returned to Petitioner Lourdes Guadalupe Loredo Alanis  in Mexico. On February 17, 2017, Petitioner filed a bill of costs  with supporting documentation. On March 7, 2017, the Clerk of Court taxed Petitioner’s bill of costs against Respondent in the amount of $2,429, for the following: fees of the Clerk, $400; fees for service of summons and subpoena, $35; fees for witnesses, $635.80; compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828, $300; and mileage incurred by Petitioner and Anel Valdivia to return DFB to Mexico, pursuant to the Court’s Order, $1,058.20. Petitioner filed a motion for costs, expenses, and attorney’s fees.  Respondent Jose Carmen Badillo Reyes did not file a response,

The district court held that fact that Petitioner’s legal representation was pro bono d not render the award of fees and costs improper. See Salazar, 750 F.3d at 518 (citing Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) Because Respondent did not file a response, he could not establish that an order awarding costs, expenses, and attorney’s fees would be “clearly inappropriate.” See Ostos v. Vega, 2016 WL 1170830, at *1 (N.D. Tex. Mar. 25, 2016).

The district court analyzed  awards of attorney’s fees under ICARA where the Court must (1) calculate reasonable attorney’s fees and (2) review the fees in light of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Fifth Circuit has approved a two-step process that uses the “lodestar” method to calculate reasonable attorney’s fees, multiplying the number of hours spent on the matter by a reasonable hourly rate for such work in the community. Reasonable hourly rates are typically calculated through affidavits by attorneys practicing in the community in which the district court is located.“In calculating the lodestar, ‘[t]he court should exclude all time that is excessive, duplicative, or inadequately documented.’ ” However, “there is a ‘strong presumption’ that the lodestar figure is reasonable.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554, 130 S. Ct. 1662, 1673, 176 L.Ed. 2d 494 (2010).

Petitioner’s counsel provided documentation supporting that he expended 56.25 hours on the case, and at his 2016 billing rate of $210 and 2017 rate of $220, the lodestar calculation was $12,210. Petitioner’s counsel attached his own detailed billing records documenting the hours he worked and each service performed, as well as the affidavit of LaToya C. Merritt, a Mississippi attorney, supporting the reasonableness of Petitioner’s counsel’s fee and hourly billing rate for the legal representation and supporting the Johnson factors. Petitioner’s counsel’s billing records indicated that the time spent on the case was reasonable. In carefully examining these line items in light of the Johnson factors, the Court found that the time spent on these tasks, which were necessary to the proceedings, was reasonable.

The Court found that the time claimed for the travel time and hearing attendance was reasonable. The line items for communication concerning the return of DFB to Mexico was reimbursable as reasonable and a necessary expense under the ICARA; preparation of the motion for fees and costs and preparation of the bill of costs and supporting exhibits/documentation were proper and recoverable, as “[i]t is settled that a prevailing plaintiff is entitled to attorney’s fees for the effort entailed in litigating a fee claim and securing compensation.” See Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985).Petitioner was entitled to attorney’s fees in the amount of $12,210.

The Court held that the following costs enumerated in the bill of costs were recoverable under Section 1920: fees of the Clerk, $400; fees for service of summons and subpoena, $35; fees for witnesses, $635.80; and compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828, $300. Petitioner’s requested reimbursement of $205.30 for copying was a recoverable cost under Section 1920, because Petitioner had verified through supporting documentation that the particular copies were “necessarily obtained for use in the case.” See Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010). Petitioner’s counsel demonstrated the necessity of the long distance telephone calls, having included line items indicating the necessity of calling the United States State Department, an attorney in Mexico, the Mexican consulate, and Petitioner concerning the return of DFB to Mexico. Petitioner also requested reimbursement of $170.50 in mileage incurred by Petitioner’s counsel for travel to the hearing. “Reasonable transportation and lodging costs incurred by an out-of-town attorney are awardable under § 11607(b)(3).” Saldivar v. Rodela, 894 F. Supp. 2d 916, 944 (W.D. Tex. 2012). The Court found that Petitioner demonstrated the necessity of this expense in the bill of costs, Petitioner requested $1,058.20 for mileage incurred by Petitioner and Anel Valdivia to return DFB to Mexico. The Court found that this travel cost was proper under the ICARA, as it was a “necessary expense[ ] incurred by or on behalf of the petitioner ... related to the return of the child.” See 22 U.S.C. § 9007(b)(3).


 Petitioner was awarded $12,210 in reasonable attorney’s fees and $2,821.59 in ancillary costs and expenses. The total amount of costs, expenses, and attorney’s fees was $15,031.59. Interest was to accrue on the amount awarded Petitioner Lourdes Guadalupe Loredo Alanis at the rate of 1.02 % from the date of the order until it is paid in full.

Benitez v. Hernandez, 2017 WL 1404317, (D. N. J., 2017)[Ecuador][Habitual residence] [Petition Denied.]

In Benitez v. Hernandez, 2017 WL 1404317, (D. N. J., 2017) Guillermo Albornoz Benitez brought a proceeding against his wife, Kristhel Angelica Diaz alleging that on June 18, 2015, Ms. Diaz removed the children from Ecuador without his consent, and was wrongfully retaining them in the United States. The Verified Petition was filed on February 10, 2017. Mr. Albornoz was born in Ecuador and moved to the U.S. in 2003, and has been a U.S. citizen since 2009. Ms. Diaz was born in Venezuela and moved to the U.S. in 2004, and obtained permanent resident status in April 2014.
They lived together for two years in Manhattan. In 2006, they moved to North Bergen, New Jersey. On October 1, 2011, Albornoz and Diaz were married in New York.
Their first child, a daughter, T.A.A., was born in New Jersey in 2006. Their second, a son, J.G.A., was born in New Jersey in 2008. Both are U.S. citizens. They resided in the U.S. from their birth until the family went to Ecuador in July 2014; in Ecuador from July 2014 to June 2015; and again in the U.S. from July 2015 to the present.

In 2013, Albornoz’s father advised him that there were no businesses like his in Ecuador. Albornoz decided to take advantage of the opportunity. He shipped both business equipment and the family’s personal property to Ecuador.
On July 12, 2014, Diaz and the children flew to Ecuador. Albornoz purchased their tickets, which were round-trip. In Ecuador, the family lodged with Albornoz’s brother for about a month. They then moved to the commercial building where Albornoz had started his business. Diaz did not have the necessary papers to work in Ecuador.

The circumstances of the departure of Diaz and the children from Ecuador in June 2015 bear clear indicia of consent. Diaz and the children used the second half of their U.S./Ecuador round-trip air tickets, and Albornoz paid the airline fee for them to do so. Albornoz accompanied Diaz to the children’s school and attended an informal ceremony marking J.G.A.’s departure a few days before the actual end of term.
 Albornoz (apparently accompanied by family members) drove Diaz and the children to the airport. T.A.A. was then 9, and J.G.A. 7 years old. Albornoz telephoned Catalina Sinning, a friend, and arranged for her to pick up Diaz and the children from the airport in New York. He also telephoned his old friend Maria Suarez, and arranged for her to house Diaz and the children in her apartment. There was no doubt that Albornoz knew about, consented to, and indeed facilitated the June 2015 departure of Diaz and the children. The evidence that Albornoz agreed to and cooperated in the June 2015 departure from Ecuador was overwhelming, and his contrary statements raise general credibility concerns. And there is much additional evidence of the couple’s agreement to move back to the U.S. permanently.

The district court found that Albornoz and Diaz agreed in 2014 that the sojourn in Ecuador was to be temporary. Diaz’s June 2015 return to the United States with the children was not wrongful, but agreed-to. Diaz had grown increasingly dissatisfied, and at any rate did not want to live in Ecuador. Albornoz wanted to keep the marriage together, and agreed to return to the U.S. in the hope of salvaging it. It appears that he cooperated fully with the children’s removal from Ecuador, resettlement in the U.S., enrollment in a New Jersey school for the 2015–16 school year, and relocation to their own apartment. It was only later, when the marriage proved unsalvageable, that he began to maintain that moving back to the U.S. had never been his intent. Indeed, it seems that he brought the petition for return of children either concurrently with, or as a response to, Diaz’s filing for divorce.

Cartes v. Phillips, 2017 WL 879524 (S.D. Texas, 2017)[Paraguay] Habitual Residence]

In Cartes v. Phillips, 2017 WL 879524 (S.D. Texas, 2017) the petitioner, Sebastian C. Cartes, initiated an action seeking the return of his three year old daughter, O.C.P., asserting that on or about October 25, 2016, Lisa Ellen Phillips, her mother (“respondent”), wrongfully removed her from Paraguay and brought her to Texas. The district court granted the petition.

The petitioner and respondent were United States citizens who met in 2012 at a drug rehabilitation facility, where both were receiving treatment for drug abuse. 
They married on February 16, 2013, in California. On September 23, 2013, the respondent gave birth to O.C.P.,  in California. Respondent had another child, J.P.D., a 10 year old from a prior relationship, who resided with her parents in Houston. The petitioner executed a two-year lease at a Houston condominium in October 2013, with his mother agreeing to cover the monthly rental payments for the duration of the lease term. In September 2014, the respondent signed a two-year lease on an apartment located at 2207 Bancroft Houston, Texas, with monthly rental payments to be paid by the petitioner’s mother. The petitioner continued to reside at the Beverly Hills Houston apartment until his admittance in October 2014 into a 90–day drug rehabilitation facility in Austin, Texas, where he remained until January 2015. In mid-November 2014, the respondent and O.C.P. visited Asunción, Paraguay, staying at the petitioner’s mother’s home and returning to Houston in early January 2015. In February 2015, after the petitioner was released from the rehabilitation facility, the parties, together with O.C.P., traveled to Asunción, Paraguay to visit the petitioner’s family. While there, the parties resided at the petitioner’s mother’s house. It was undisputed that the petitioner intended to move to Paraguay, where he grew up, as soon as he completed rehabilitation. He testified, and the Court found, that his intentions were to stabilize his life, specifically his marriage, and start supporting his family. The petitioner, respondent and O.C.P remained in Paraguay from around February 14, 2015, through August 25, 2015, save for three exceptions: (1) From March 20—April 10, the respondent and O.C.P. traveled to California and Texas; (2) from June 24—July 5, they traveled again to Texas; and (3) from August 25—October 17, the parties traveled to Florida and Texas for two months. During her stay in Paraguay, the respondent worked for a short period in the family’s cattle business. The respondent and O.C.P. lived in the petitioner’s mother’s house during their stay. Also toward the end of their stay, the petitioner’s mother offered to construct a residence on her compound so that the petitioner and respondent, and particularly O.C.P., would have separate living quarters. Both the petitioner and respondent, to some extent, participated in finalizing the plans for a separate residence on the petitioner’s mother’s compound. When the respondent returned to Paraguay on October 18, 2015, she and O.C.P. remained in Paraguay until October 24, 2016.

The Court found that prior to the respondent’s return to Paraguay in October 2015, the petitioner and respondent traveled to Houston. During this visit, the petitioner moved respondent’s property out of the parties’ storage unit into a smaller unit. At that time, little or nothing in the respondent’s Bancroft apartment was moved. Afterward, the petitioner returned to Paraguay with most of his possessions. On October 18, the respondent and O.C.P. returned to Paraguay. Though residing in Paraguay, the respondent maintained her lease on the Bancroft apartment in Houston. During this time, the petitioner’s mother rendered monthly rental payments on the Bancroft lease, provided the respondent with a credit card for all household and food purchases and other necessities, paid for the parties’ medical insurance premiums, including reimbursing the respondent’s mother for the cost of coverage for O.C.P.’s COBRA policy maintained by the respondent’s mother’s Texas employer, and completed building the separate residence on her compound to house the parties and O.C.P. While staying in Paraguay, the respondent traveled, mostly unaccompanied, to Uruguay, Florida, Houston, Miami and Ohio, with all expenses paid for by the petitioner’s mother. During her trips to Uruguay the respondent mainly traveled alone and remained away from O.C.P. for several weeks at a time. In December 20, 2015, O.C.P. was baptized in Asunción, Paraguay. Both parties were present for and supportive of her baptism. In February 2016, O.C.P. was enrolled in and began attending a pre-kindergarten/daycare program at Maria’s Pre–School in Paraguay. She regularly attended school until her removal from Paraguay in October 2016. Given the length of her extended stay in Paraguay, O.C.P. received medical care for any illnesses from Dr. Jorge Lopez–Benitez, a local pediatrician.

On or about October 18, 2016, the respondent revealed to the petitioner’s mother that she was pregnant with a child by someone other than the petitioner—a boyfriend she purportedly met in Buenos Aires. Nevertheless, she sought the assistance of the petitioner’s mother to direct her to a physician to confirm her pregnancy. Sometime earlier, around September 20, 2016, the respondent had informed her mother of her pregnancy. With a September 30, 2016 lease-end date for the Bancroft apartment she maintained, the respondent’s father rented a storage unit in Houston to move and store her remaining belongings from the Bancroft apartment. On October 24, 2016, the respondent attempted to leave Paraguay without proper clearance documentation for O.C.P. On October 25, 2016, the petitioner, at the request of his mother, traveled to the airport to execute a document stating his commitment to show the child’s missing diplomatic passport to immigration officials in Paraguay upon his mother’s return to Paraguay, permitting the respondent and O.C.P. to travel Houston to visit her family. Except for a visit to Houston for about two weeks in January 2016, O.C.P. spent the large majority of her time, during the relevant period, in Asunción, Paraguay.

The testimony of the petitioner, and his mother, supported a finding that the respondent followed the petitioner to Paraguay in an attempt to repair and/or reestablish the parties’ marriage and family. The Court found that on critical facts, the testimony of the respondent was unpersuasive and unreliable. This finding was based on the respondent’s courtroom behavior, i.e., the manner of her testimony, the conflicts in her testimony, and her actions during the disputed periods.

The Court found that the parties’ last shared intention was for O.C.P. to habitually reside in Paraguay. The respondent was not involuntarily coerced to remain in Paraguay during the relevant period. The evidence established that in October 2015, O.C.P., traveled with the respondent on a one-way ticket from Houston, Texas to Paraguay to live with the petitioner and his family for nearly a year, while traveling intermittently. The respondent was not coerced to involuntarily remain in Paraguay or to change O.C.P.’s habitual residence to Paraguay. O.C.P. quickly acclimated to Paraguay. While in Paraguay, for example, she: was baptized into the Catholic faith by the petitioner’s family’s priest; was enrolled in and began attending a pre-kindergarten/daycare program at Maria’s Pre–School; received necessary medical care from a local pediatrician there; and established relationships with the petitioner’s family, including participating in various family activities. Although the petitioner and respondent may have harbored very distinct views of Paraguay, both, nevertheless, agreed to move to that country and live there with O.C.P. and proceeded as parents determined to make a home for themselves and their minor child—they assisted in establishing a separate living quarters on the petitioner’s mother’s compound, they worked for the family’s cattle business, arranged for O.C.P. to receive necessary medical care from a Paraguayan pediatrician and participated in consultations with him, and permitted O.C.P. to be enrolled in pre-school for a period of, at the very least, 8 months. Further, the stability of the residence in Paraguay, combined with O.C.P.’s regular attendance in school, the respondent and petitioner’s employment status and the petitioner’s mother’s level of involvement with the child all weighed in favor of the Court finding O.C.P. “settled” in Paraguay. The fact that the respondent never intended to remain in Paraguay permanently did not alter the parties’ settled purpose or the Court’s finding.

The Court found that petitioner had rights of custody under Paraguayan law, including rights relating to the care of O.C.P. as well as the right to determine her place of residence. The Code of Childhood and Adolescent Rights of Paraguay grants custody rights to both mothers and fathers.  The petitioner possessed rights of custody that were breached at the time of O.C.P.’s wrongful removal, and he was exercising those rights at the time of the removal. The evidence did  not suggest that, at or near the time of O.C.P.’s removal, the petitioner consented to or took any subsequent action to acquiesce in O.C.P.’s habitual residence being changed from Paraguay to the United States. By assisting the respondent at the airport at his mother’s insistence, the petitioner did not waive his right to complain in the event that the respondent refused to return to Paraguay with O.C.P. The petitioner’s pursuit of the respondent and utilization of the remedies available to him under the Convention and through local law enforcement to secure O.C.P.’s prompt return to Paraguay further undermined the respondent’s consent defense.

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.