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Tuesday, June 6, 2017

Alvarez v Alvarez, 2017 WL 2335600 (D. Md., 2017) [Mexico] [Federal & State Judicial Remedies] [Comity]




In Alvarez v Alvarez, 2017 WL 2335600 (D. Md., 2017) Petitioner, Enedina Alvarez filed her Verified Petition for Return of the Children to Mexico on April 12, 2017. With her Petition for Return, the Mother included a copy of a Custody Agreement dated January 6, 2016 and a copy of the Mexico Appellate Court Decision  issued September 7, 2016.5 The Father filed his Answer on May 10, 2017, denying that the Mother had legal custody over the children and denying that the children had been wrongfully removed from Mexico. By the current Motion in Limine, the Mother requests this Court to accord comity to the Mexico Hague Convention Proceedings.

The district court observed that the Fourth Circuit has noted that “though foreign judgments are not entitled to full faith and credit, comity is at the heart of the Hague Convention.” Smedley, 772 F.3d at 189 (quoting Miller, 240 F.3d at 400). The United States Supreme Court provided a description of comity with some guiding principles in Hilton v. Guyot, 159 U.S. 113, 163-64, 202-03 (1895). Where comity is at issue, a court begins its analysis “with an inclination to accord deference to” a foreign court’s decision of a related Hague petition. Diorinou v. Mezitis, 237 F.3d 133, 145 (2d Cir. 2001). However, a court may decline to extend comity if the foreign court “clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Smedley, 772 F.3d at 189 (quoting Asvesta, 580 F.3d at 1014). In Smedley, the Fourth Circuit found that the district court had properly found the foreign court’s decision was “at least minimally reasonable,” which was sufficient to accord comity. Id. at 191.

  The Court had access only to the Mexico Appellate Court Decision  which was attached to the Petition for Return. The decision which affirmed the lower court finding, details the facts considered and the law applied. There is nothing in the decision that would indicate that the court either misinterpreted the Hague Convention or was inconsistent with its fundamental premises and objectives. The Mexico courts found that the Father had consented to the children remaining in Mexico. Such a finding was supported by the evidence, such as the custody agreement. These decisions were issued in relation to the Father’s Hague Convention Petition for Return filed in Mexico against the Mother while the children were living with the Mother in Mexico. The appellate decision affirmed a lower Mexico court order finding that the Mother had not wrongfully retained the children in Mexico, and that the Father had consented for the children to live in Mexico with the Mother.

The Father noted that the custody agreement was intended to be temporary and did not entitle the Mother to keep the children in Mexico past the January 11, 2016 scheduled return to the United States. The Mexico court, however, considered this argument in its decision. The Mexico court determined that the vacation circumstances had radically changed due to an episode of violence between the Father and the Mother. The Mexico court further noted that since the Custody Agreement was signed on January 6, 2016, and the parties had full knowledge of the scheduled return date, if it was intended to end on that date, they had the opportunity to so specify but did not. Further, as noted by the Mother in her motion, the Mexico trial court appointed a guardian ad litem for the children, ordered psychological evaluations for the parties, and received extensive testimony and evidence, including documents and affidavits. After considering all of the evidence, the Mexico trial court found that the Mother did not wrongfully retain the children in Mexico, and this finding was upheld after further extensive analysis by the Mexico appellate court. The finding is certainly at least minimally reasonable. Accordingly, the Court directed that it would  accord comity to the Mexico Hague Convention Proceedings.

The Court’s held that its deference to the Mexico Hague rulings that the Mother did not wrongfully retain the children in Mexico did not end the Court’s consideration of whether the Father’s removal of the children from Mexico required an order for their return. Rather, the Court stated it would take into account the reasons for the Mexico courts’ decisions when deciding the instant Petition for Return. There remained other evidence to be considered, including the circumstances surrounding the Father’s removal of the children from Mexico, and the Convention’s defenses and exceptions. The Court held that it would consider all material evidence to be presented at a hearing prior to making an ultimate finding on the Petition for Return.



Tavarez v Jarett, --- F.Supp.3d ----, 2017 WL 2304029 (S.D. Texas, 2017)[Mexico] [Petition granted]



  In Tavarez v Jarett, --- F.Supp.3d ----, 2017 WL 2304029 (S.D. Texas, 2017)  Petitioner Yolanda Sanchez Tavarez (“Petitioner”) alleged Respondent Michael Jarrett (“Respondent”) wrongfully removed their six-year-old daughter, BLSJ, from Mexico to the United States on January 24, 2016.  Petitioner was a Mexican national and Respondent was an American national. The parties lived in the same residence in Lagos de Moreno, Jalisco, Mexico from 2009 until their separation in 2014 and were the parents of one six-year-old child, BLSJ who was born in Lagos de Moreno, Jalisco, Mexico on June 13, 2010. BLSJ resided in Mexico until she was removed to the United States on January 24, 2016.  Respondent conceded that Mexico was the country of BLSJ’s habitual residence.

            On May 10, 2012, BLSJ was hospitalized in Mexico after suffering seizures and fainting. BLSJ was subsequently diagnosed with anti-NMDA encephalitis (“Anti-NMDA”), an autoimmune disease. BLSJ was released from the Guadalajara Hospital in November 2013 and thereafter received continuing medical treatments, physical therapy, and speech therapy. The childs doctor did not  have any concerns about BLSJ’s ability to receive the appropriate medical treatment in Mexico. At the time of BLSJ’s last appointment in Mexico, on November 20, 2015, BLSJ’s disorder was stable and controlled, and Dr. Cruz believed BLSJ would likely go into remission. On January 24, 2016, Respondent removed BLSJ from Mexico and brought her to the United States.  Respondent testified that he and Petitioner agreed BLSJ should move to the United States to seek medical treatment for BLSJ’s Anti-NMDA. The district court rejected this testimony and found that Respondent wrongfully removed BLSJ from Mexico.

  The Court found Respondent failed to establish by a preponderance of the evidence that Petitioner consented or acquiesced to BLSJ’s removal. It also rejected Respondent arguments that returning BLSJ to Mexico posed a grave risk to BLSJ because (1) the healthcare available to BLSJ in Mexico is inadequate; (2) there is an increased risk of disease in the area of Mexico to which Petitioner seeks BLSJ’s return; (3) there is a high crime rate in the area of Mexico to which Petitioner seeks BLSJ’s return; and (4) BLSJ was abused by Petitioner or Petitioner’s family.

Cunningham v Cunningham, 2017 WL 662020 (M.D. FL, 2017)[Japan][ Habitual residence ] [Petition granted]



In Cunningham v Cunningham, 2017 WL 662020 (M.D. FL, 2017),  Ryoko Cunningham (Mother), a citizen and resident of Japan, requested the return of her child, Y.L.C. from the United States to Japan. Respondents were Terrence Cunningham (Father) and Glenda Cunningham (Grandmother), the father and paternal grandmother of the Child. The Child lived with the Grandmother in Yulee, Florida. The Father was serving in the United States Army and stationed in Maryland, but his home of record was also Yulee, Florida. The district court granted the petition.

The Mother was born in Japan and lived her entire life in Japan aside from a three week period when she attempted to live in the United States. Prior to the Child’s birth, the Mother was living in Okinawa with her daughter and son. The Father, an American citizen, was stationed with the Army in Okinawa. In May 2014, the couple got married in Japan. The Father’s assignment in Japan was scheduled to end. Although their relationship was turbulent and troubled, the Parents made plans to move to Maryland together, with the Mother’s teenage son, and live there as a family on a permanent basis. They couple moved to the United States in April 2015 . However, after an argument, the Mother returned to Japan where the child was born.  She subsequently returned to the United States for a short time but sought to return to Japan after more arguments. Upon hearing the Mother’s demand to return to Japan and obtain a divorce, and hearing her threat to never let him see the Child, the fathers response was to ask the Army for assistance in returning the Mother to Japan

The district court observed that the difficulty with applying the usual” habitual residence” analysis in this case was  that the caselaw focused on situations in which a child’s habitual residence has changed, as opposed to the question of when or how an infant’s initial habitual residence is first established. Significantly, “courts have consistently held that a newborn’s place of birth does not automatically bestow upon that child a habitual residence.” Moreover, an infant child’s habitual residence is not automatically that of her mother. The Father contended that the Child’s habitual residence is the United States because when the couple moved to the United States in April 2015, they shared a mutual intent to remain permanently in the United States. According to the Father, even after the Mother returned to Japan, they quickly reconciled and prior to the Child’s birth agreed that as soon as the Mother and Child were able to travel, they would come to the United States to live here permanently. The Mother disputed this, saying that she wanted a divorce from the Father and only came to the United States to allow him to meet the Child.  The Court concluded that the preponderance of the evidence established that Japan is the Child’s habitual residence.

The Court dispensed with acclimatization as a useful factor. In cases involving very young children, “ ‘[a]cclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.’ ” See Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013). Like acclimatization, under the circumstances of this case, a focus on parental intent was also problematic. Here, the Parents, although still married, had separated and were living in different countries at the time of the Child’s birth.  The Parents both planned to live together as a family in the United States when they moved here in March 2015. After no more than three weeks in the United States, in a whirlwind of tempers and abuse allegations, the Mother and her teenage son returned to Japan with the Army’s assistance. The Father acknowledged that he consented to the Mother’s return to Japan. Thus, whatever his hopes had been for their future in Maryland, at that point, the Father acquiesced in the Mother’s decision to leave him and return to Japan while pregnant with the Child. Although the Father testified that he still intended for the Child to be born and raised in the United States, the Court rejected this testimony because, under the circumstances, the Father could have had no reasonable expectation that the Mother and Child would be returning to the United States. While one or both Parents may have had mixed feelings about the Mother’s departure, they both shared a settled mutual intent that she would return to Japan, pregnant with the unborn Child, indefinitely. See Ruiz, 392 F.3d at 1253. The Court found by a preponderance of the evidence that at most the Mother traveled to the United States in October 2015 in an attempt to reconcile with the Father. Both Parents understood that absent reconciliation, the Mother and Child would return to Japan. The Court found that the events of October 10, 2015, showed that the Father’s decision to keep the Child in the United States was a sudden departure from the Parents’ prior understanding. After agreeing that it was her choice whether to return to Japan, the Father changed position and tells the Mother, at his last possible opportunity, that she cannot take the Child. Based on the foregoing, the Court rejected the Father’s contention that the United States was the Child’s country of habitual residence, and found that the Mother has established by a preponderance of the evidence that the Child was habitually resident in Japan prior to the retention. 

The Court adetermined that with regard to rights of custody a showing of illegality or unlawfulness is not what the Hague Convention requires. See Ozaltin v. Ozaltin, 708 F.3d 355, 368–70 (2d Cir. 2013) (“[A] removal under the Hague Convention can still be ‘wrongful’ even if it is lawful.”) The Father presented no legal authority for the proposition that to have “breached” the Mother’s rights of custody within the meaning of the Hague Convention he must have committed acts which were “illegal” or “unlawful” under Japanese law. Significantly, the Hague Convention explicitly includes joint custody rights within its purview. See Hague Convention, art. 3(a). Thus, even if the Father’s actions were not considered “unlawful” under Japanese law, by disregarding the Mother’s jointly held rights and interfering with their normal exercise, the Father effectuated a “wrongful retention” within the meaning of the Hague Convention.  

Moreover, the Father’s reliance on the state court orders to establish that his retention was not wrongful was unavailing. Article 17 provides that “[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” As such, under the circumstances of this case, the existence of the state court orders had no impact on the “wrongful retention” analysis. 


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 did 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.

Tuesday, May 9, 2017

Matute-Castro, v. Jimenez-Ortiz, 2016 WL 8711076 (E.D. N.Y., 2016) [Ecuador][Now settled][Petition denied]


In Matute-Castro, v. Jimenez-Ortiz, 2016 WL 8711076 (E.D. N.Y., 2016) Santos Hernan Matute-Castro (“Petitioner”), petitioned for an order directing Josselinne Pamela Jimenez-Ortiz (“Respondent”) to return their minor son, M.M.J. to Ecuador.Petitioner alleged that Respondent wrongfully retained their child in New York at the end of a family vacation on August 19, 2013. Respondents motion for summary judgment dismissing the petition was granted.

 The parties agreed that the child was wrongfully retained in New York at the end of the family vacation on August 19, 2013.The district court found that since arriving in New York in 2013, Respondent and the child  resided with Respondent’s mother, father, younger sister A.J., and a great-uncle named Sergio in a house in Queens, New York. Respondents’ parents owned the house since at least 2013. Respondent’s parents were employed full time and supported Respondent and the child. Respondent’s mother  indicated that she and Respondent’s father were willing to support Respondent and the child for as long as necessary.  Respondent’s mother stated that Respondent and the child were welcome to live with the family for as long as they would like. The child was covered by health insurance. Both parties agreed that Respondent was a good mother. The child’s regular interactions with about thirty (30) extended family members in New York City and the surrounding region included playing with and being around other children in the family. Aside from spending time with family, the child interacted  with other children from the neighborhood. The children attend each other’s birthday parties and some of the children participated in a Tae Kwon Do after school program with the child. The child and Respondent also attend church services. During the 2013-2014 school year, Petitioner enrolled the child in a nursery school program at the YMCA two days per week. Recently, the child completed kindergarten at Achievement First Apollo Elementary School. The child’s primary language was now English. The child received special education services because he was diagnosed with a learning disability and speech and language impairment by healthcare professionals associated with the school’s Committee on Preschool Special Education. In a report of a psychiatric evaluation of the child, dated February 15, 2016, Dr. Stephanie Brandt concluded that, “It is entirely obvious that this rather fragile little boy is in fact happy and thriving in every way.” (Dr. Brandt also noted that, the child “is in fact quite disabled” and further concluded that, “it is my unequivocal professional opinion that the Child is a ‘settled’ child in his current New York home environment.”  Since the child arrived to New York, Respondent had not concealed the child’s whereabouts from Petitioner. Respondent facilitated telephone and “Face time” calls between Petitioner and the child and sent Petitioner photos of the child. Respondent believed the child should have a relationship with his father and has made efforts to maintain contact between the child and Petitioner. Respondent and his parents had the resources and ability to visit the child in New York.

The district court stated that to establish the now settled defense, the respondent must demonstrate, “(1) that the return proceeding was commenced more than one year after the wrongful removal or retention, and (2) that the child ‘is now settled in its new environment. See Lozano v. Alvarez, 697 F.3d 41, 51 (2d Cir. 2012) The parties agreed that the wrongful retention of the child occurred on August 19, 2013, and that the petition was filed in this district, where the child was found, on August 5, 2015, almost two years later. Accordingly, the petition was untimely. Thus, the issue remaining before the court was whether the child was “now settled in its new environment.”
The Second Circuit has held that the word “settled,”  “should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.” Lozano, 697 F.3d at 56. When determining if a child is “now settled,” the court may consider “any factor relevant to a child’s connection to his living arrangement.”. Among the factors the court should consider are: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. A court should examine the child’s present circumstances and assess whether a child is “now settled” as of the date of either an evidentiary hearing or when a motion for summary judgment is filed. See Gwiazdowski v. Gwiazdowska, 2015 WL 1514436, at *4 (E.D.N.Y. Apr. 3, 2015) (evaluating factors at time of evidentiary hearing); In re D.T.J., 956 F. Supp. 2d 523, 534 (S.D.N.Y. 2013). Balancing the forgoing factors, the Court concluded that the child was now settled in New York for purposes of Article 12.

Padilla v. Troxell, 2017 WL 922061 (4th Cir.,2017) [Mexico][Consent][Petition denied]


In Padilla v. Troxell, 2017 WL 922061 (4th Cir.,2017) Petitioner-Appellant Xochitl Jazmin Velasco Padilla (“Petitioner”) appealed the district court’s denial of her petition for the return of her now five-year-old child J.V. (“Child”), after Respondent Joe Richard Troxell (“Respondent”) took Child to the United States. The district court denied the petition, finding that Petitioner had consented to Child’s removal from Mexico. The Fourth Circuit affirmed.

The petitioner gave birth to Child on May 27, 2011 in the state of Oaxaca, Mexico. Respondent--a U.S. citizen residing in Mexico at the time--offered to provide support for Child. In January 2012, when Child was about eight months old, Petitioner and Respondent agreed that Respondent would serve as Child’s legal father. Respondent registered himself as Child’s father, and his name appeared on the birth certificate. As stipulated by the parties, Respondent was the legal father and had parental rights under Mexican law. For the first two years of Child’s life, although Respondent had little to no physical contact with Child, he did provide financial support. On December 17, 2014, Petitioner and Respondent traveled to Oaxaca to obtain a Mexican passport for Child. After they obtained Child’s passport together, Respondent took Child to his home in Acapulco until Child entered the United States.


During the trial, several inconsistencies in Petitioner’s version of events became apparent. As for the alleged abduction, Petitioner testified that Respondent took Child while she was going to the bathroom, which conflicted with her prior account that Respondent disappeared with Child while she was buying ice cream. Although Petitioner’s sister, Maria Candelaria Velasco Padilla, testified that Petitioner “was always with her baby” before the birth of her third child in 2013, she said nothing to support Petitioner’s narrative of the day of the alleged abduction in December 2014.
Respondent testified as to his version of events, and Ms. Leyva confirmed his account. Respondent also introduced a sworn affidavit from Ms. Banos, Petitioner’s half-sister who was present during the visit to the passport office. In the affidavit, Ms. Banos stated that Respondent had not abducted Child. Respondent argued that the district court should admit the document as self-authenticating Petitioner argued that the document was not self-authenticating as required under Federal Rule of Evidence 902(3). Petitioner stated that the “basis” for the objection was Federal Rule of Evidence 902(3)- but did not argue hearsay.

In its opinion, the district court found Petitioner had established, that [Child] was wrongfully removed.” Nevertheless, the district court found that Respondent had “adequately shown” that Petitioner consented to Child’s removal from Mexico, a defense under the Hague Convention. In reaching these conclusions, the district court made an express credibility determination. The court stated that “Petitioner’s testimony raised serious doubts about her credibility,” and that the “ease with which she misl[e]d the court” on at least one issue--the number and birth order of her children-- “calls into question all of her factual testimony.”. Accordingly, the district court found that there was “only one credible version of events: Respondent’s.” As for the sworn statement of Ms. Banos, the district court admitted the affidavit into evidence as “self-authenticating under Federal Rule of Evidence 902(8).”

The Fourth Circuit observed that consent and acquiescence are two separate and “analytically distinct” affirmative defenses. Whereas the consent defense concerns the petitioner’s conduct before the contested removal or retention, the acquiescence defense concerns whether the petitioner subsequently agreed to or accepted the removal or retention. A petitioner’s statements or conduct-formal or informal--can manifest consent. For both the consent and acquiescence defenses, the inquiry turns on the petitioner’s subjective intent. “To establish consent, we focus on the parties’ conduct prior to the removal or retention. However, a petitioner’s conduct after removal can further inform whether she consented at the time of removal.” Determining whether the preponderance of the evidence supports a petitioner’s subjective intent to consent to removal is naturally “fact-intensive.” Accordingly, this inquiry depends to a considerable extent on the district court’s factual and credibility determinations.


The Fourth Circuit found that  Petitioner’s conflicting testimony about basic personal information led the district court to question “all of her factual testimony.”The district court ultimately concluded Respondent’s version of events was the only credible one. It owed this express credibility determination substantial deference. Bolstered by the credibility determination, it agreed with the district court’s legal conclusion that a preponderance of the evidence demonstrates Petitioner consented to Child’s removal to the United States. The district court found that Petitioner willingly accompanied Respondent to obtain Child’s passport and agreed to surrender custody to Respondent so that Child could have a better life. Ms. Leyva’s testimony and the sworn affidavit of Petitioner’s half-sister, Ms. Banos, corroborated Respondent’s story. The text messages-- exchanged between September 2015 (a little more than six months after Child’s removal) and January 2016--reinforced the conclusion that Petitioner consented to removal of Child to the United States. Respondent acknowledged that Petitioner never told him she wanted him to bring Child into the United States illegally, and how a Child is removed is one factor to consider in assessing the scope of consent. Still, Petitioner repeatedly said that Child was better off with Respondent in the United States, thus suggesting that she did not view Respondent as an abductor. In the context of Respondent’s impending move to the United States, the combination of Petitioner’s conduct in signing for Child’s passport and her statements during the passport visit to Respondent that Child would be better off with him--as well as her subsequent text messages expressing same--all supported the conclusion that she consented to Child’s relocation.




Neumann v. Neumann, 2017 WL 1162926 (6th Cir., 2017)[Mexico][Change of Circumstances]



In Neumann v. Neumann, 2017 WL 1162926 (6th Cir., 2017) the district court ordered two children to be returned to Mexico after analyzing whether, under the terms of the Convention, returning them posed “a grave risk” of “expos[ing] [them] to physical or psychological harm or otherwise plac[ing] [them] in an intolerable situation.” The district court concluded that the return posed no such grave risk.  Because JMN turned sixteen years old while this action was pending, the district court ordered Ms. Neumann to return only JSN and MKN to Mexico. The district court declined to order JSN and MKN into Mr. Neumann’s custody—just back to Mexico. The Sixth Circuit vacated the district court’s return order, and remanded for further proceedings consistent with the opinion.

On December 1, 2016, after oral arguments. Mr. Neumann’s counsel represented to the court that in November 2016—six months after the district court’s return order—Mr. Neumann returned indefinitely to Michigan after a job reassignment. Counsel also represented to the court that while Mr. Neumann’s stay in Michigan was indefinite, Mr. Neumann may be assigned to a job in India, too. Counsel further represented that if the court were to affirm the district court’s return order, Mr. Neumann would return to Mexico to receive the children. The children, Mr. Neumann, and Ms. Neumann were all in Michigan. Ms. Neumann and the children had been there for more than two years—since December 2014. Mr. Neumann had been there for about five months—since November 2016. When the district court ordered Ms. Neumann to return the children to Mexico, Mr. Neumann was residing and working in Mexico, potentially giving the Mexican court the jurisdiction over the custody dispute. Under those circumstances, the district court concluded that returning the children would not expose them to a grave risk of harm or of an intolerable situation. The Sixth Circuit observed that those circumstances changed substantially. Because of a stay pending appeal the return had not been carried out, and circumstances had changed materially. Neither parent  resided in Mexico, and if the children were returned there, the Mexican court may no longer be able, practically or legally, to resolve the custody dispute between two American parents over their American children. 


The Sixth Circuit held that district court did not clearly err when it found Mexico to be the country of habitual residence of JSN and MKN. When Ms. Neumann took them to the United States, JSN and MKN had been living in Mexico for nearly four years—from February 2011 to December 28, 2014. They were there because the husbands employer had transferred him to Mexico. That was  long enough for JSN and MKN to acclimate to their new life. JSN and MKN attended the same school in Mexico for nearly four years. At the school, they made new friends and engaged in extracurricular activities like school plays and concerts. The Neumanns also planned to continue to live in Mexico until 2017—maybe longer. Given those settled ties to Mexico, the district court did not clearly err in concluding that Mexico was the children’s country of habitual residence. The district court therefore was bound to order Ms. Neumann to return the children back to Mexico, unless Ms. Neumann proved that, by clear and convincing evidence, returning the children to Mexico would expose the children to a grave risk of physical or psychological harm or an otherwise intolerable situation The district court rejected that argument and ordered JSN and MKN back to Mexico.

 In light of new developments, the Sixth Circuit dd not decide whether the district court correctly decided, based on then-current circumstances, the close issue of whether returning the children to Mexico presented a grave risk of physical or psychological harm. The closeness of the issue made a remand more advisable. The district court’s harm analysis depended on the circumstances in which the children would have lived when they returned to Mexico. However, while the district court ordered the children to Mexico generally, the court did not order how the children would be returned, where they would temporarily live, and who would temporarily take care of them, pending the Mexican court’s custody determination. It was therefore uncertain what compliance with the district court’s order would have looked like. It was a close issue whether, in light of Simcox,511 F.3d at 604, the district court correctly found that Ms. Neumann had failed to prove a grave risk of harm by clear and convincing evidence. 

The Sixth Circuit held that it could not successfully be argued that the exception for grave risk is necessarily determined at the time of the return order rather than at the time of the actual return, when there is appreciable distance between the two. Because the circumstances of the return will no longer be as they were contemplated when the district judge ruled, and because a remand was required in any event the Court did not resolve whether the district court properly found no clear and convincing evidence of physical or psychological harm at the time the court ordered the children’s return to Mexico.  It directed that on n remand, the district court may in its discretion take further evidence as to, for instance, whom the children will be staying with in Mexico during custody proceedings, and how Mr. Neumann had dealt with his alcoholism.


Because neither parent currently resides in Mexico, the Court faced the independent question of whether there was a grave risk of an intolerable situation upon return to Mexico, arising from possible impediments to the ability of Mexican courts to adjudicate custody. In Pliego v. Hayes, 843 F.3d 226, 228–29 (6th Cir. 2016), it  held that “where custody cannot be practically or legally adjudicated in the state of habitual residence,” there may be “ ‘grave risk’ that the child’s return would ‘place the child in an intolerable situation.’ ” Here, if Ms. Neumann followed the district court’s order to return the children to Mexico without any specified logistical agreements, it may not be possible for custody to be practically or legally adjudicated in Mexico. The record did not show whether a Mexican court may exercise jurisdiction to resolve a custody dispute between two American parents over two of their three American children, all of whom are American citizens, none of whom were Mexican citizens, and none of whom resided in Mexico. In Pliego, it recognized that if diplomatic immunity prevented the state of habitual residence from adjudicating custody, that could be an intolerable situation under the Convention, in light of the underlying purpose of the Convention to have the state of habitual residence adjudicate custody. See Pliego, 843 F.3d at 233. In doing so, it  also relied on foreign cases that reasoned that there was a grave risk of an intolerable situation where, for instance, a parent could not legally travel to the country that would have determined custody, or the parent could not legally represent his or her interest and the child’s interest in the subsequent litigation. Similarly, if Mexico as a practical or legal matter could not or would not adjudicate custody, the intolerable situation exception to the obligation to return may apply. The issue was presented by the intervening change of facts, and should be addressed by the district court in the first instance. Under its  precedent, that potential inability of the foreign court to resolve the custody dispute may pose “a grave risk” of “an intolerable situation” to the children. A return order is premised on the risks at the time of the actual return, and the district court had not had a meaningful chance to evaluate, in light of the material change in circumstances, whether there is a “grave risk” under the Convention when the children would now be returned. In this unusual circumstance, a remand was warranted so that the district court may consider in the first instance whether returning the children to Mexico would now expose them to “a grave risk” of harm or of an intolerable situation.

The Court upheld the district court’s holdings that Mexico was the country of habitual residence of JSN and MKN, and that Ms. Neumann violated Mr. Neumann’s custodial rights under Mexican law when she took her children to the United States on December 28, 2014. The remand was otherwise general. It directed the district court to  determine whether or not clear and convincing evidence shows that returning the children now presents a “grave risk” of “physical or psychological harm” or “an intolerable situation.” If so, then the district court has discretion to deny return, or to grant return subject to undertakings that would substantially lessen the risk. See Simcox v. Simcox, 511 F.3d 594, 604–11 (6th Cir. 2007). If the court determines that there is not a sufficient showing of a grave risk, the court should order return. Should the district court decide that a return order is indeed required, such a return order should provide sufficient practical detail so that return can be accomplished promptly without further appreciable litigation delay. The court may still deal with ordinary logistical considerations that frequently accompany the return of any child.