In Cartes v Phillips, --- F.3d ----, 2017 WL 3141036 (5th Cir, 2017) Sebastian Cartes, the father of a three-year-old girl, O.C.P., petitioned to order Lisa Phillips, O.C.P.’s mother and Cartes’s wife, to return O.C.P. to Paraguay, where she had lived with both Cartes and Phillips from October 2015 to October 2016.
Cartes, a U.S. citizen who grew up in Paraguay, and Lisa Phillips, a U.S. citizen, met in California in 2012 and married there in February 2013. Their daughter, O.C.P., was born in California on September 23, 2013. Cartes and Phillips’s marriage was marked by drug use (Cartes’s), sickness (O.C.P.’s), and frequent travel and relocation. Neither Cartes nor Phillips had a job; they relied almost exclusively on Cartes’s mother Sarah, the sister of Paraguay’s current president, to pay their expenses. One month after O.C.P. was born, the family moved to Houston, where Phillips’s parents live. The family lived there for about two years. When Cartes wasn’t in rehab, the family lived together until September 2014, when Phillips and O.C.P. moved out and separately rented an apartment. From June through September 2015, Cartes and Phillips looked for apartments to rent in California.
Cartes testified that sometime in the spring of 2015, he moved to Paraguay without Phillips and O.C.P. to live there more permanently. He returned to the United States in early September to collect the rest of his things. At this time, he and Phillips talked about divorce. Cartes consulted with two divorce lawyers and sent Phillips an email telling her that he was leaving for Paraguay without her. At the district court’s bench trial, Cartes admitted that “at that time what was going through [his] mind [wa] s ... going back to Paraguay and ending [their] marriage.” He “wasn’t thinking at the time of ... [his] wife and child—or where they would live.” A month later, on October 18, 2015, Phillips and O.C.P. flew to Paraguay. According to Cartes, before Phillips and O.C.P. arrived in Paraguay, he and Phillips “had several conversations about the possibility of going to live in Paraguay [for] employment, the financial future of [their] family, [and] the fact that [they] would have assistance with [their] daughter [from] nannies, parents and so on.” According to Phillips, however, she and O.C.P. weren’t moving to Paraguay. Rather, they wanted to be there when Phillips’s sister-in-law gave birth to Phillips’s nephew (O.C.P.’s cousin). Before leaving Houston, Phillips renewed the lease for her apartment. While in Paraguay, Phillips and O.C.P. traveled back to the United States at least twice. O.C.P. continued to have American health insurance and saw doctors in the United States. Similarly, Phillips maintained American health insurance for herself and Cartes. She also kept a car in Houston and paid her car insurance regularly while she was in Paraguay. But Cartes testified that he and Phillips also decided to develop O.C.P.’s connection to Paraguay. For example, the two decided that O.C.P. would attend a Paraguayan preschool, and school records reflected that she regularly attended.
Cartes also testified that although he and Phillips fought frequently, they “always intend[ed] to reconcile.” According to Cartes, “[Phillips] agreed that she wouldn’t be as happy anywhere else and that she would be fine and happy there and that [Paraguay] was also her home.” Cartes reiterated that Phillips agreed that Paraguay “would always be” both her and O.C.P.’s “home” or “base.” Text messages between Cartes and Phillips illustrated that Phillips described Paraguay as “home.” On October 23, 2016, Phillips decided to leave Paraguay, and she flew back to Houston with O.C.P. October 24. On December 1, 2016, Cartes filed a petition for O.C.P.’s return to Paraguay. On March 6, 2017, the district court ruled in favor of Cartes, finding that Paraguay was O.C.P.’s habitual residence and that Phillips had wrongfully removed her to the United States.
The Fifth Circuit affirmed. It rejected Respondents argument that the district court applied the wrong legal standard because the district court did not point to any “explicit meeting of [Cartes’s and Phillips’s] minds to abandon the United States” as O.C.P.’s habitual residence before they traveled to Paraguay in October 2015. Phillips was correct that the “threshold” inquiry under its approach is whether “both parents intended for the child to abandon the habitual residence left behind.” Berezowsky, 765 F.3d at 578. However, that the district court did not legally err. The district court quoted circuit authority recognizing abandonment as the threshold inquiry and analyzed the parties’ positions in light of these references. It also rejected Respondents argument that it nonetheless factually erred by finding that Cartes and Phillips jointly intended to make Paraguay O.C.P.’s habitual residence before Phillips and O.C.P. returned to the United States. The district court’s habitual-residence finding that Cartes and Phillips were “determined to make a home for themselves and their minor child” in Paraguay was not “implausible” and thus not clearly erroneous. See Berezowsky, 765 F.3d at 466 & n.7. The record supported Cartes’s testimony, on which the district court heavily relied, that despite discord, he and Phillips agreed Paraguay would be O.C.P.’s habitual residence. Cartes also testified that during certain periods of reconciliation—specifically June, July, and August of 2016—he told Phillips that he wanted O.C.P. to live in Paraguay permanently and that Phillips agreed Paraguay “would always be” home to both her and O.C.P. See id. at 468 (“[S]hared parental intent requires ... the parents [to] reach some sort of meeting of the minds regarding their child’s habitual residence, so that they are making the decision together.”). Text messages between Cartes and Phillips supported the district court’s decision to credit Cartes’s version of events.
The Court observed that parents’ shared intent about their child’s habitual residence does not—and need not—always coincide with the child’s initial change in location. Sometimes, “the family as a unit has manifested a settled purpose to change habitual residence ... when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country.” Mozes v. Mozes, 239 F.3d 1067, 1076-77 (9th Cir. 2001). In other cases, a parent may have “earlier consented to let the child stay abroad for some period of ambiguous duration [, but] circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely.” Accordingly, it could not say that the district court’s finding of habitual residence was implausible in light of the record as a whole.
The Fifth Circuit agreed with Phillips that the district court erred by excluding evidence of emails between Cartes and various real estate agents in California. It noted that its approach to determining a child’s habitual residence is a subjective test requiring district courts to ascertain “parents’ intent or settled purpose” about their child’s home. With typical Convention cases between estranged spouses, it has encouraged courts to consider not only the parties’ testimony, but also, more generally, “all available evidence.” Because the threshold for relevance is “low,” Hicks-Fields v. Harris Cty., 860 F.3d 803, 809 (5th Cir. 2017), documentary evidence tending to corroborate testimony about the parties’ shared intent is likely to be relevant in most Convention cases. But any error in this case was harmless.
In Cunningham v Cunningham, --- Fed.Appx. ----, 2017 WL 3867813 (Mem) (11th Cir., 2017) after custody disputes in Florida state court led to Mr. Cunningham’s mother, Glenda Cunningham, obtaining physical custody of the minor child, and Mrs. Cunningham’s then abrupt departure from the United States to Japan, Mrs. Cunningham a verified petition for the return of her child pursuant to the Hague Convention to have the child returned to Japan. The district court concluded that the child’s habitual residence—before Mr. Cunningham and his mother retained the child—was Japan, that the child had been wrongfully retained in the United States, and that the child should return to Japan. The district court also concluded that Mr. Cunningham had failed to prove his affirmative defenses, finding that Mr. Cunningham did not establish that Mrs. Cunningham acquiesced to the child’s residence in the United States, that the child would be subject to a grave risk of harm if it were to return to Japan, or that the child was well-settled in the United States. Mr. Cunningham and his mother now appeal. The 11th Circuit affirmed. It observed that a district court’s determination of a child’s habitual residence under the Hague Convention is reviewed as a mixed question of law and fact, so underlying factual determinations are reviewed for clear error and the application of legal principles to the facts are reviewed de novo. See Ruiz v. Tenorio, 392 F.3d 1247, 1251–52 (11th Cir. 2004). A district court’s rulings as to a respondent’s affirmative defenses under the Convention are similarly reviewed under a mixed standard of review. See Seaman v. Peterson, 766 F.3d 1252, 1258, 1261–62 (11th Cir. 2014) (applying a mixed standard of review in a case involving a grave risk of harm defense).” It affirmed for the reasons set forth in the district courts order.
The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is not a treatise. It is a “how to” book for lawyers. This 800 page handbook is a companion work to Law and the Family New York, 2d (Thomson Reuters Westlaw), which contains extensive coverage of the substantive and procedural law related to matrimonial actions and family court proceedings.
The New York Matrimonial Trial Handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses.
The New York Matrimonial Trial Handbook, by Joel R. Brandes will be in bookstores and available on line in October 2017. Click on the title for more information about the contents of the book. Click on this link for the complete table of contents.
If you would like to be notified when The New York Matrimonial Trial Handbook is on sale send an email to joel@nysdivorce.com with the words “notify me” in the subject line and your email address. The anticipated publication date is October, 2017.
In Oliver A v Diana Pina B, --- N.Y.S.3d ----, 2017 WL 2467202, 2017 N.Y. Slip Op. 04548 (1st Dept., 2017) the parties were married in New York in 2009, and their two children were born in Norway in 2010 and 2012. The family lived in Norway and also spent months at a time living in the maternal grandmother’s apartment in New York. In 2013, after the mother was directed to leave Norway, the parties sold much of their personal property and their car, and went to the Dominican Republic. They then went to New York and stayed with the maternal grandmother. In about March 2014, the father returned to Norway to look for an apartment and job, with the expectation that the mother would follow with the children. In court, the parties both confirmed their understanding that the mother would return to Norway with the children when he was settled. However, the mother testified that, following a long history of domestic violence, including a choking incident in February 2014 where the police were called she determined not to return to Norway and told the father she would not return. In April 2015, the father filed a petition for the return of the children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.
The Appellate Division observed that a petition will be denied if the parent opposing return of a child establishes “by clear and convincing evidence” the exception set forth in article 13b of the Convention (22 USC § 9003[e][2][A] )—namely, that “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” (Hague Convention art 13 [b] ). It noted that the determination of a child’s “habitual residence” requires inquiry into the “shared intent” of the parents “at the latest time that their intent was shared,” taking into account the parents’ “actions [and] declarations,” as well as “whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent” (Mota, 692 F3d at 112, quoting Gitter v.. Gitter, 396 F3d 124, 134 [2d Cir2005] ).
Although the record supported Family Court’s determination that the parties’ last shared intent was to return to Norway, the court did not consider the mother’s evidence that the children had been acclimatized to New York, and whether that evidence trumped the parents’ shared intent (see also Hofmann v. Sender, 716 F3d 282 [2d Cir2013] ). It concluded that the mother met her burden to show, by clear and convincing evidence, that the children’s return to Norway would result in a grave risk of harm to them (Blondin v. Dubois, 189 F3d 240, 245 [2d Cir1999] ). The mother presented detailed testimony of multiple acts of domestic abuse towards her by the father, at times in the presence of the parties’ children. She also presented corroborating evidence, including the testimony of the maternal grandmother, who witnessed two of the violent incidents, including the February 2014 incident, and testified to visible signs of injury to her daughter, which was also noted in a Domestic Incident Report. The mother also submitted copies of text messages sent by the father threatening the mother’s life. She further showed that the father had a propensity for violent abuse, as demonstrated by his violent acts, jealous rages, and, on at least two instances, forceful treatment toward the older daughter (see Ermini v. Vittori, 758 F3d 153, 164–165 [2d Cir2014]; Souratgar v. Lee, 720 F3d 96, 104 [2d Cir2013]; Blondin, 189 F3d at 247). The mother presented evidence that the nature of the abuse was such that it would inevitably resume if the parties were reunited. The father acknowledged that the parties fought over the mother’s infidelity, but broadly denied the mother’s claims, other than admitting to pushing or grabbing the mother to restrain her. His testimony, however, was entirely uncorroborated. The mother further presented evidence that, as a noncitizen of Norway, there would be minimal, if any, domestic violence resources available to her if she were to move there with the children, and that, due to her immigration status, she would not be allowed to live there for more than 90 days.
In Cohen v Cohen, --- F.3d ----, 2017 WL 2453777 (8th Cir.2017 ) the 8th Circuit affirmed the district court’s denial of Yaccov Cohen’s petition for return . Yaccov Cohen and Ocean Cohen were the parents of O.N.C., who was born on December 6, 2009 in Israel. During the first three years of O.N.C.’s life, the Cohens lived together as a family in Israel. Between 2010 and 2011, Yaccov served approximately one year in jail on various criminal charges. Shortly after Yaccov’s release, Ocean and two of her brothers discussed the possibility of her family moving to St. Louis to join them. However, Yaccov was subject to a Stay of Exit Order placed on his visa that prevented him from leaving Israel until he paid his accumulated debt, which included criminal fines, penalties, and restitution payments. Yaccov and Ocean decided that Ocean and O.N.C. would move to St. Louis, and that once there Ocean would work to help Yaccov pay off his debt so he could join them. Ocean testified that they intended to move permanently to the United States, while Yaccov testified that they intended to move for a period of three to five years. To prepare for the move, Yaccov and Ocean went to the United States Embassy together to submit naturalization paperwork for O.N.C. In December 2012, Ocean and O.N.C. traveled to St. Louis. Ocean promptly enrolled O.N.C. in school and speech therapy, found O.N.C. a pediatrician, and secured employment. Ocean purchased a vehicle, obtained a driver’s license, and eventually rented an apartment. As arranged, Ocean sent money to Yaccov to help pay off his debts. In May 2013 and April 2014, Ocean and O.N.C. visited Yaccov in Israel for approximately two weeks each time. During the April 2014 visit, it became apparent that the marriage was deteriorating. Shortly before Ocean and O.N.C. were scheduled to return to St. Louis, Yaccov asked a lawyer to draft a “travel agreement” requiring Ocean and O.N.C. to return to Israel if Yaccov remained unable to join them in St. Louis within six months. Ocean signed the agreement after adding a clause requiring Yaccov to “stay away from crime and not get into trouble.” If he breached this condition, Ocean and O.N.C. would not be obligated to return to Israel at the end of the six-month period. In August 2014, Yaccov was arrested for driving without a valid license. In July 2014, Ocean filed for divorce in St. Louis County. The St. Louis County Circuit Court entered a default judgment granting the divorce in March 2015, giving Ocean sole custody of O.N.C. and Yaccov supervised visitation. In September 2015, Yaccov filed a complaint requesting O.N.C.’s return under the Convention.
The 8th Circuit observed that habitual residence is determined as of the time “immediately before the removal or retention” and depends on “past experience, not future intentions.” Silverman v. Silverman, 338 F.3d 886, 897-98 (8th Cir. 2003) Habitual residence encompasses some form of settled purpose but only requires that the familyhave a sufficient degree of continuity to be properly described as settled. However, this settled purpose need not be to stay in a new location forever. The Eighth Circuit determines settled purpose from the child’s perspective, although parental intent is also taken into account. That said, parental intent need not be completely clear, and one spouse harboring reluctance during a move does not eliminate the settled purpose from the child’s perspective. In addition to settled purpose and parental intent, relevant factors include the change in geography, the passage of time, and the acclimatization of the child to the new country.Stern v. Stern, 639 F.3d 449, 451 (8th Cir. 2011). It held that the district court did not err in finding that O.N.C.’s habitual residence was the United States. From O.N.C.’s perspective, his move to the United States resulted in a sufficient degree of continuity to be properly described as settled. The record supports that the alleged wrongful retention occurred either in July 2014, when Ocean filed for divorce, or in October 2014, when the six-month period under the travel agreement expired. At either of these junctures, O.N.C. had been living in the United States for almost two years—a significant portion of his young life. From his perspective, his family had moved to the United States indefinitely and established a home there, and he maintained considerable connections to his environment. O.N.C.’s mother obtained employment, purchased a vehicle, and rented an apartment for the family. O.N.C. attended school and speech-therapy classes, had a pediatrician, socialized with friends, and had extended family in the area. During the relevant time period, he primarily spoke English and participated in activities at his local Jewish Community Center. At the same time, little evidence established O.N.C.’s connection to Israel. In sum, O.N.C. experienced “a clear change in geography” and had acclimated to life in the United States. Moreover, the parents’ intent supported this conclusion. Both Yaccov and Ocean intended to move O.N.C. to the United States for at least three to five years, if not indefinitely. They applied together for O.N.C.’s U.S. citizenship and planned for Ocean and O.N.C. to settle in St. Louis and establish a home there until Yaccov could join them. In furtherance of this plan, Ocean established a life in St. Louis—all the while sending money to Yaccov in an effort to enable him to join his family. Both parties understood that O.N.C. would be without Yaccov for a significant period of time and that Ocean would establish a home in his absence.
The parties disputed the circumstances under which Ocean signed the travel agreement, but Yaccov did not seek to enforce the agreement. Rather, he offered it only for the purpose of demonstrating parental intent. The 8th Circuit noted that even if Yaccov had sought to enforce the agreement, parents cannot establish the child’s habitual residence by contract. Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir. 2010). The 8th Circuit agreed with the district court that Yaccov had not demonstrated by a preponderance of the evidence that O.N.C.’s habitual residence was Israel.
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.
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.
