Eubanks v Eubanks, 2017 WL 3235446 (E.D. Louisiana, 2017)[Cayman Islands][Habitual Residence][Petition denied]

          In Eubanks v Eubanks, 2017 WL 3235446 (E.D. Louisiana, 2017) the district court denied the Petition of Ivan Eubanks’ for the return of his children to the Cayman Islands.

          The district court found that the parties were both American Citizens. They were married on December 1, 2007 in Louisiana. In 2008, they moved to Boston, Massachusetts after Mr. Eubanks accepted a teaching position at Boston University. E.E. and P.E. were born on April 18, 2013 in Boston, Massachusetts. Shortly after the birth of E.E. and P.E., Mr. Eubanks secured a job as a professor in Moscow, Russia. Mr. Eubanks moved to Moscow in August of 2013. Ms. Eubanks and the two children followed in October of 2013.  While in Russia, Mr. Eubanks applied for over ninety different jobs, almost all of which were teaching positions in the United States. At some point prior to January 2016, Mr. Eubanks, accepted a position teaching freshman English at the University College of the Cayman Islands. Mr. Eubanks’ teaching contract with the University College of the Cayman Islands was for two-years. Mr. Eubanks told Ms. Eubanks that the move to the Cayman Islands would be a temporary move for the duration of one semester, until he received a position in the United States. Ms. Eubanks agreed to the move because the parties were desperate to leave Russia and because Mr. Eubanks promised their stay in the Cayman Islands was to be temporary and that it would provide an opportunity for them to decompress after leaving Russia. Mr. Eubanks specifically told Ms. Eubanks that he was 100 percent positive he would be offered a teaching position at the University of San Diego by the end of the semester. The parties moved to the Cayman Islands on or about January 1, 2016.

          The court found that Ms Eubanks was the more credible witness, and that E.E. and P.E. lived in the Cayman Islands, with both Mr. and Ms. Eubanks, from January 1, 2016 until August 26, 2016. Neither Mr. Eubanks nor Ms. Eubanks had any relatives residing in the Cayman Islands. Mr. Eubanks did not change the mailing address on his credit cards or bank statements to the Cayman Islands and, instead, they are mailed to his father’s address in South Carolina. Mr. Eubanks was registered to vote in Florida. The parties rented a furnished condominium in the Cayman Islands and continued to store their personal belongings in their storage facility in New Orleans, Louisiana. The lease agreement for the condominium contained, at the parties’ request, an “escape clause” allowing the parties to break to break the lease, without penalty, at any time prior to May 31, 2016.  The escape clause was included in the lease so that the parties could break the lease if Mr. Eubanks received an offer to work in the United States.  Shortly after moving to the Cayman Islands and participating in a Skype interview, Mr. Eubanks learned on January 18 that he was not chosen for the teaching position at the University of San Diego. After learning he did not get the job at the University of San Diego, Mr. Eubanks assured Ms. Eubanks his chances of getting hired by the State Department were good.  In June 2016, Mr. Eubanks accepted a position as Acting Dean of Academic Affairs with his current employer, the University College of the Cayman Islands. Mr. Eubanks told Ms. Eubanks that accepting this position would make him a more desirable applicant in his job search.  E.E. and P.E. were registered but had not started school in the Cayman Islands as of August 26, 2016.  Both Mr. Eubanks and Ms. Eubanks wanted E.E. and P.E. to be raised and educated in the United States. From the time of arrival in the Cayman Islands to the date of this trial, Mr. Eubanks actively sought employment in the United States.  Ms. Eubanks did not intend for the children’s habitual residence to be in the Cayman Islands.  Ms. Eubanks removed E.E. and P.E. from the Cayman Islands to New Orleans, Louisiana on August 26, 2016, without the consent of Mr. Eubanks.  E.E and P.E. continued to reside in New Orleans, Louisiana with Ms. Eubanks.  On February 10, 2017, Mr. Eubanks filed his Verified Complaint for the Return of Children to the Cayman Islands.

          The Court’s habitual residence analysis was accordance with the Ninth Circuits decision in Mozes v Mozes, 299 F.3d at 1070. As E.E. and P.E. were only three years old at the time of removal, the Court found that its inquiry as to their habitual residence depended solely on the parents’ intentions. The Court did not need to determine E.E. and P.E.’s habitual residence before they moved to the Cayman Islands.  Even assuming the children were at one point habitually resident in Russia, it was undisputed that there was a clear meeting of the minds between Mr. and Ms. Eubanks to abandon Russia as the children’s habitual residence. As a result, the issue was whether the parties mutually intended to establish the Cayman Islands as the children’s habitual residence. The Fifth Circuit has explicitly held that the shared intent to abandon a habitual residence and move somewhere new does not require that the parents must agree on the new country of residence. Further, the Fifth Circuit has noted “it is possible for a young child to have no habitual residence when there is no evidence of a shared intention for the child to be settled in any particular location.” Berezowsky v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014) (citing Delvoyle v. Lee, 329 F.3d 330, 334 (3d Cir. 2003)).

           At trial, the parties offered conflicting testimony regarding whether they intended to establish a habitual residence in the Cayman Islands. Ms. Eubanks testified that she agreed to the move only because Mr. Eubanks told her the move to the Cayman Islands would be temporary. Ms. Eubanks introduced evidence that Mr. Eubanks continued to seek employment in the United States after the parties moved to the Cayman Islands. Her sister testified that Mr. Eubanks applied for jobs after moving to the Cayman Islands and that he told her the move to the Cayman Islands was temporary and his family would be moving as soon as he found another job on the mainland. Ms. Eubanks testified that the parties specifically required that an “escape-clause” be included in the rental agreement for their condominium so that the parties would be able to break their lease, without penalty, when Mr. Eubanks received a position in the United States. Ms. Eubanks also testified that in June, after Mr. Eubanks accepted the position as Acting Dean, the parties looked to purchase a home in order to reduce monthly expenses, but that the parties would only purchase a house on the water so that it could either be rented or sold relatively quickly. Ms. Eubanks testified that the parties did not purchase a home because they could not find property in their price range that fit this criteria. Although both parties testified that they took affirmative steps to purchase a home in the Cayman Islands, this fact alone is not dispositive to the Court’s habitual residence analysis. The Court found that Ms. Eubanks put forth credible reasons as to why the parties may have considered purchasing a home despite their intention to leave the Cayman Islands as soon as Mr. Eubanks received a job offer in the United States. Although Ms. Eubanks testified that the children were registered for school in the Cayman Islands but had not yet started, Ms. Eubanks also testified that both she and Mr. Eubanks wanted E.E. and P.E. to be raised and educated in the United States. Evidence that the children were enrolled to start school in the Cayman Islands is not substantial evidence that the parties intended to remain in the Cayman Islands indefinitely. Ms. Eubanks also testified that Mr. Eubanks told her he was not content with his job in the Cayman Islands and that Mr. Eubanks often complained that the job was beneath his qualifications. Although Mr. Eubanks unequivocally testified that he did not actively seek other employment while living in the Cayman Islands, emails proved his testimony clearly was not true. Included in these emails were countless communications between Mr. Eubanks and potential employers during 2016, including the State Department. Mr. Eubanks continued his quite active search for employment in the United States after he, Ms. Eubanks, and their children moved to the Cayman Islands. The emails corroborate Ms. Eubanks’ testimony that Mr. Eubanks was very actively pursuing a position with the State Department while in the Cayman Islands.

          The Court found that Mr. Eubanks failed to meet his burden of proof by a preponderance of the evidence that he and Ms. Eubanks had a shared intent to establish the children’s habitual residence in the Cayman Islands. As a result, Mr. Eubanks failed to prove by a preponderance of the evidence that the children were habitually resident in the Cayman Islands at the time they were removed by their mother.

Sarabia v Perez, 225 F.Supp.3d 1181 (D. Oregon, 2017) [Mexico][Habitual Residence][Petition denied]

            In Sarabia v Perez, 225 F.Supp.3d 1181 (D. Oregon, 2017) Plaintiff Anita Castro Sarabia (“Castro”) filed a complaint requesting the court order the return of KMRC, her seven year old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to Mexico.

          The district court found that in 2008, Castro and Ruiz met. They lived together for a few months before separating. Two months after the separation, Castro learned she was pregnant with Ruiz’s child, KMRC. When Castro informed Ruiz she was pregnant, Ruiz immediately told Castro he would help support the child. Even before KMRC’s birth, Ruiz began making monthly child support payments to Castro. Castro gave birth to KMRC in April 2009. Ruiz testified that although he worked during the week and lived about an hour’s drive away, he visited KMRC on many weekends. Ruiz testified he would take KMRC shopping to buy toys and “little things like that.” While Ruiz clearly was not a daily fixture in KMRC’s life the Court found that his testimony more credible than Castro’s. Ruiz was at the hospital and held KMRC on the date of his birth. Castro’s attempts to minimize Ruiz’s involvement in KMRC’s life while in the United States were not credible in light of all of the evidence.

           In 2011, Castro decided to go to Mexico. Ruiz testified the parties got into an argument in mid–2011 when Castro called Ruiz and informed him she was taking KMRC to Mexico to visit her parents. Ruiz, who did not want KMRC going to Mexico, informed Castro that taking KMRC without his consent was illegal. Castro continued pressing Ruiz on the subject of the visit, although she was unwilling to commit to a time frame with respect to the length of the trip. At one point, Castro said she would go for three months. Later, she said six months. As Castro had not seen her parents in a long time, Ruiz ultimately consented to the request. The Court found the parties reached an agreement that Castro could take KMRC to Mexico on a seven month trip. Because Castro needed Ruiz’s permission to take KMRC out of the country, on October 25, 2011 Ruiz signed a notarized statement giving Castro permission to take KMRC “on their trip to Pachuca Hidalgo, Mexico. The trip is scheduled for departure on November 2nd, 2011 with an approximant [sic] 7 month stay, returning on May 15, 2012.”

          By May of 2012, contrary to her agreement with Ruiz, Castro had essentially settled in Mexico. KMRC at this time was one month past his third birthday. Castro married in August 2012 and lived on her parents’ ranch in a rural area outside of Mexico City. Ruiz asked Castro to send KMRC back to the United States in accordance with the parties’ agreement. Ruiz testified he told Castro “I want to see the boy. Send him to me.” Castro did not agree but said she would send KMRC at some later point if Ruiz gave her an extension. Ruiz testified, convincingly, that he really had no choice at this time but to agree to an extension. On June 15, 2012, Ruiz signed a second notarized permission slip.  This slip extended the Mexico trip, “scheduled for departure on November 2, 2011 with an approximate returning date of May 15, 2014.” The court found that by June 2012, Castro made the unilateral decision to keep KMRC in Mexico.

          Ruiz testified he called Castro attempting to speak with his son. But Castro usually made excuses why Ruiz could not talk to KMRC. For instance, Castro would say KMRC was sleeping or visiting with his grandparents. With Castro limiting even phone calls between Ruiz and his son, and with Castro simply not returning in accordance to the original agreement, Ruiz had to agree to the two year extension as his best hope for his son to someday return to the United States. Ruiz consistently held the desire and belief that KMRC would one day return home to live permanently in the United States. During the entire time KMRC remained in Mexico, Ruiz continued to make relatively consistent child support payments to Castro.  Like the first deadline to return, the second deadline came and went. Eventually, by September 2015, Castro decided to send KMRC to live in Oregon with her sister for two months. Castro, her sister, and her parents all testified the purpose of this trip was for KMRC to receive medical treatment for a neck issue. Castro sent KMRC, accompanied by his grandparents, back to the United States. Nearly four years had passed since six year old KMRC last set foot in the United States. Ruiz provided a notarized permission slip for KMRC to travel. The Court found that Ruiz by this point would sign pretty much anything if, in his mind, it increased his chances of seeing his son.

          The district court found that the child’s habitual residence was the United States. Castro made the unilateral decision to change KMRC’s country of habitual residence from the United States to Mexico. Ruiz never consented or acquiesced to that change. Instead, Ruiz always firmly wished for KMRC to return to live in the United States. The courts reading of Mozes, along with practically no evidence of KMRC’s acclimatization in Mexico, led to this conclusion.  The court noted that a young child may acquire a new habitual residence in one of two ways: (1) through the parents’ shared settled intention to abandon the initial habitual residence; or (2) if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.”  There was no dispute that when KMRC was born, he was a habitual resident of the United States. KMRC was born in Oregon. Both of his parents had lived in Oregon for years and, at least at that time, had no intention of leaving. KMRC then spent the next 30 months or so in the United States.

          In Mozes, 239 F.3d at 1076–77 the court described four scenarios commonly arising in Hague cases. This case involved multiple scenarios described in Mozes. When Castro first took KMRC to Mexico, the parties agreed on a “specific, delimited period” of seven months. After those seven months, Castro simply decided to stay in Mexico with KMRC. The parties then negotiated, for lack of a better term, on an extension. Castro, however, held all the cards in this negotiation. Ruiz could not leave the country and simply had to agree to whatever Castro suggested. Agreeing to whatever terms Castro supplied represented Ruiz’s only chance for KMRC’s return to the United States. Ruiz never abandoned the United States as KMRC’s country of habitual residence. But shared parental intent is not the only way a child can acquire a new habitual residence. At some point, a child obtains a new habitual residence if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.”  Courts look to a child’s acclimatization to a new country and to all the facts of the particular case in determining how deeply rooted the child’s ties are to the new country. Regarding KMRC’s acclimatization in Mexico from 2012 to 2016, other than a few isolated statements from Castro and her parents that KMRC was “happy” in Mexico, there was literally no evidence from Castro about how KMRC acclimated to Mexico. Ruiz, however, presented evidence that KMRC did not acclimatize to life in Mexico. The only credible evidence demonstrated KMRC never really acclimated to life in Mexico. The facts demonstrated that rather than acclimating to life in Mexico, KMRC instead developed PTSD and never felt entirely safe there.  Castro failed to establish that Mexico was KMRC’s habitual residence in October 2015. Because KMRC’s habitual residence remained the United States, Castro’s petition for return was denied.

Gutierrez v Juarez, 2017 WL 3215659 (D. Arizona, 2017)[Mexico] [Habitual Residence][Petition Granted

          In Gutierrez v Juarez, 2017 WL 3215659 (D. Arizona, 2017) the district court granted the Petition for the return of child A to Mexico.

          Zaragoza and Respondent Octavio Ramirez Juarez were the parents of Child A.  They were Mexican citizens. Child A was born in Phoenix, Arizona on July 23, 2006. Zaragoza and Ramirez never married. In November 2009, Zaragoza and Child A returned to Mexico. Ramirez remained in the United States. It was agreed that Child A would remain in Mexico with Zaragoza. Beginning in 2013, Zaragoza and Ramirez agreed that Child A would visit Ramirez in the United States for one month each summer. Child A spent a month visiting Ramirez in the summers of 2013, 2014 and 2015, each time returning to Zaragoza in Mexico at the conclusion of the visit. Child A again came to the United States in the summer of 2016, under circumstances which Zaragoza and Ramirez disputed. According to Zaragoza, Ramirez had been pushing throughout 2015 and 2016 for Child A to come live with him in Phoenix for the 2016–17 school year, but Zaragoza refused, as she believed that Ramirez did not have the time to take good care of Child A. Ultimately, Ramirez’s parents came down to Zaragoza in Mexico on July 20, and Zaragoza agreed to another summer visit, on the understanding that Child A would return in a month. Zaragoza testified that she packed one bag for Child A, containing about eight changes of clothes and no other personal belongings. Child A left for the United States on July 21. In August, a week before Child A was to return to school in Mexico, Zaragoza testified, Ramirez told Zaragoza that he would keep Child A in the United States so that she could learn English. Ramirez, on the other hand, testified that Zaragoza and Ramirez agreed that Child A would spend two years in the United States and that they would determine what the next steps were depending on how Child A was doing in school after those two years. In September 2016, Zaragoza filed a Hague Convention application with the Central Authority of Mexico, seeking the return of Child A.

          The district court found that Zaragoza has demonstrated that Child A was wrongfully retained in the United States when her habitual residence was Mexico. The retention occurred on August 13, 2016, when Ramirez informed Zaragoza that he intended to keep Child A in the United States. See Mozes, 239 F.3d at 1070 & n.5 (citing case where “mother wrongfully retained children by announcing her intent not to return them” to their home country).  Where, as here, children already have a well-established habitual residence, simple consent to their presence in another forum is not usually enough to shift it there. Rather the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration. While the parents disputed exactly how long Child A was intended to remain in the United States, neither asserted that it was supposed to be an indefinite stay. Zaragoza said that they agreed to a definite stay of one month; Ramirez said that they agreed to a definite stay of two years. Prior to that, Child A had spent the previous seven years of her life in Mexico (with the exception of summer visits to the United States). There was thus no “settled intent” on the part of the parents for Child A to abandon her prior habitual residence of Mexico. While there had been a geographic shift with respect to where Child A was living, there was only a short period of time between her arrival in the United States and the retention. Nothing after that matters, because “a parent cannot create a new habitual residence by wrongfully removing and sequestering a child.” Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001).

          The court also found that petitioner had custody rights under Guanajuato law and was exercising them. It also found that Ramirez could not demonstrate that any of the “narrow exceptions set forth in the Convention applied.

          The district court indicated primary dispute on which evidence was presented and on which the case turned was whether Zaragoza consented to or acquiesced in the retention of Child A in the United States. In examining a consent defense, it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. The nature and scope of the petitioner’s consent, and any conditions or limitations, should be taken into account. The fact that a petitioner initially allows children to travel, and knows their location and how to contact them, does not necessarily constitute consent to removal or retention under the Convention. Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005). The parties disputed the extent to which Zaragoza consented to Child A’s stay in the United States. Zaragoza asserted that she agreed to a summer visit; Ramirez asserted that Zaragoza agreed to a stay of two years.  As an affirmative defense, the burden of demonstrating this exception was on Ramirez. Based on the courts credibility determination, he did not carry that burden by a preponderance of the evidence.

Kovacic v Harris, 2017 WL 2719362 (D. Maryland, 2017)[Croatia][Federal & State Judicial Remedies] [Motion to dismiss]

          In Kovacic v Harris, 2017 WL 2719362 (D. Maryland, 2017) Plaintiff Ivica Kovačić brought an action seeking the return of his daughter, “N.K.,” to her “habitual residence” in the country of Croatia. N.K.’s mother, Defendant Danijela Harris with whom N.K. currently resided in the United States, filed a Motion to Dismiss this action, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. After a hearing, the motion was denied.

          Plaintiff and Defendant were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.,” was born in Sisak, Croatia.  The family lived together in Sisak, Croatia until the mother, Danijela, moved out of the home in April of 2007. On February 9, 2009, the parties dissolved their marriage in Croatia.  In a Judgment dated that same day the Municipal Court of Sisak, Croatia ordered that N.K. would “live with the mother Danijela Kovačić in Sisak ... [and that p] arental care remain[ed] shared.”. The Croatian Court further ordered that Mr. Kovačić would have specified visitation time with N.K. Around December of 2015, Mr. Kovačić consented to N.K.’s mother taking N.K. to the United States to visit the mother’s aunt and uncle for the winter holiday, but with the understanding that she and N.K would return to Croatia at the end of N.K.’s winter school vacation. N.K.’s mother began a relationship with a man named Christopher Harris while on that trip. Around January 7, 2016, N.K.’s mother informed Mr. Kovačić via a text message and Facebook message that she planned to remain in the United States with N.K, contrary to their agreement before the trip. N.K.’s mother ultimately married Harris in June of 2016. N.K. now resides with Christopher Harris and her mother, now Mrs. Danijela Harris, in Elkton, Maryland. On January 6, 2017, Mr. Kovačić filed this action.

          The district court observed that to survive a motion under Fed. R. Civ. P. 12(b) (6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl., Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Although a court “accepts the facts as alleged” in the Plaintiff’s complaint in reviewing a Rule 12(b)(6) motion to dismiss, Quintana, 2017 WL 2438774 at *1, a court may properly consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits....” Goines, 822 F.3d at 166 (citations omitted); see Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).

          Although Mr. Kovačić’s Complaint characterized the Judgment of the Municipal Court of Sisak, Croatia as a “joint custody and visitation arrangement,” Harris argued that Mr. Kovačić did not have “rights of custody” over N.K., but merely had “rights of access” under that Judgment. She pointed out that the Judgment clearly “entrust[s]” the “care and upbringing” of N.K. to her mother and dictated that N.K. live with her mother, which she interpreted as “sole custody.” Accordingly, she moves for dismissal of the Complaint for failure to state a claim for relief, pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure.

          The district court found that Mr. Kovačić stated a prima facie case of “wrongful removal” under the Hague Convention and International Child Abduction Remedies Act. Mr. Kovačić  alleged that, prior to N.K.’s trip to the United States with her mother in December of 2015, N.K. lived in Croatia for her entire life, spending significant time with both parents. Additionally, he has alleged that the Municipal Court of Sisak, Croatia granted him “shared” “parental care,” pursuant to a “joint custody and visitation agreement” (although Mrs. Harris objected to this characterization), and that Mrs. Harris’ wrongful retention of N.K. in the United States now violated his rights as a “physical custodian” and prevents him from “exercising his rights of custody.”  

          Additionally, Mrs. Harris argued that the Complaint should be dismissed pursuant to Rule 12(b) (1) of the Federal Rules of Civil Procedure because the Court lacks jurisdiction to hear Mr. Kovačić’s “access claims” or to return N.K. to Croatia for the purpose of resolving a “visitation” or “access dispute.” She argued that the court with jurisdiction to hear an “access claim” under the Hague Convention was the Circuit Court for Cecil County, Maryland. Mr. Kovačić contended that he does not merely have “access rights,” but has “rights of custody” under Croatian Law and the Croatian Court’s Judgment in the parties’ divorce case. The Croatian Court’s Judgment specifically provided that “[p]arental care remains shared.” Mr. Kovačić appended the Declaration of Sunčica Lončar, Senior Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy of the Republic of Croatia.  She indicated that it is the official position of the Ministry for Demography, Family, Social Policy and Youth that Mr. Kovačić does have custody rights over N.K. She further stated that Croatian law recognizes both “legal custody” and “physical custody.”  In accordance with Articles 91(3), 99(2), and 100(1) of the Family Act, she explained that parents can only be deprived of legal custody if they are deceased or if a court has deprived them of “legal capacity.” It was her opinion that the Croatian Court’s ordering that “parental care remains shared” preserved Mr. Kovačić’s “legal custody rights.” She further stated that the version of the Croatian Family Act in effect at the time of the parties’ divorce “undisputed[ly]” provided that “both parents, regardless of physical custody, have the right to determine the child’s place of residence.”

          The district court noted that it is s well-established that the Hague Convention envisions that proof of foreign law may be established via “certificates or affidavits,” Central Authority opinions, letters, and expert testimony. See Pérez-Vera Report3, note 19, ¶ 101; see also Whallon v. Lynn, 230 F.3d 450, 458 (1st Cir. 2000); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004) (establishing foreign law via letters from Argentine Central Authority). Mrs. Harris did not challenge the authority, admissibility, or authenticity of Sunčica Lončar’s Declaration. For these reasons, Plaintiff established by a preponderance of the evidence that the Court had subject matter jurisdiction over his case.

Gonzalez v Batres, 2015 WL 12819198 (D. New Mexico, 2015) [Mexico] [Federal & State Judicial Remedies] [Judicial Notice]

In Gonzalez v Batres, 2015 WL 12819198 (D. New Mexico, 2015) the Petitioner , citing to Article 14 of the Hague Convention and Federal Rule of Civil Procedure 44.1,  asked that the Court take judicial notice of Articles 278 through 280, Articles 406 through 419, Articles 438 through 439, and Articles 441 through 443 of the Civil Code for the State of Durango, Mexico, all of which govern the Mexican legal concept of patria potestas. She also asked that the Court “take judicial notice” of her expert report, including her expert witness’s conclusions of law; and that the Court “take judicial notice” of several specific conclusions of law regarding the nature of patria potestas and the rights afforded to her by that concept. 

The district court explained that Petitioner misunderstood  the purposes of these authorities. Rule 44.1 simply allows the Court to “consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence,” when determining foreign law. FED. R. CIV. P. 44.1. Rather than “imposing an obligation on the court to take „judicial notice’ of foreign law,” the Rule “provides flexible procedures for presenting and utilizing material on issues of foreign law.” Likewise, Article 14 simply allows the Court to “take notice directly of the law of, and of judicial or administrative decisions ... in the State of the habitual residence of the child.” Hague Convention on the Civil Aspects of International Child Abduction, art. 14, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. Both authorities allow the Court to consider foreign legal codes and judicial or administrative decisions, as well as expert testimony, in making determinations of foreign law. However, neither authority provides any basis for simply adopting a party’s conclusions regarding foreign law as the Court’s own. It therefore, granted the motion only insofar as Petitioner sought to have the Court (1) take judicial notice of the portions of the Durango Civil Code that she provided to the Court, pursuant to Article 14 of the Hague Convention; and (2) consider the submitted portions of the Durango Civil Code and the testimony and report of Petitioner’s expert witness, pursuant to Rule 44.1, in reaching any relevant determinations of Mexican law.

Benitez v Hernandez, 2017 WL 1404317 (D.NJ, 2017)[Ecuador] [Consent] [Petition denied]

          In Benitez v Hernandez, 2017 WL 1404317 (D. NJ, 2017) J.G.A. Guillermo Albornoz Benitez (“Guillermo”) brought a proceeding against his wife, Kristhel Angelica Diaz Hernandez (“Kristhel”), for the return of their children to Ecuador. Their daughter, “T.A.A.,” was born in 2006, and was 11 years old; their son, “J.G.A.,” was born in 2008 and was 9 years old. Mr. Albornoz alleged 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 district court denied the petition.

          The district court accepted as true the evidence that Albornoz and Diaz agreed in 2014 that the sojourn in Ecuador was to be temporary. It accepted the evidence that Diaz’s June 2015 return to the United States with the children was not wrongful, but agreed-to. The picture that emerged was that 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 appeared 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 seemed that he brought the petition for return of children either concurrently with, or as a response to, Diaz’s filing for divorce.

Pinto v Barone, 2017 WL 2779700 (S.D. California, 2017)[Brazil] [Grave Risk of Harm] [Petition granted]

          In Pinto v Barone, 2017 WL 2779700 (S.D. California, 2017) Brazilian citizens Luciana and Andre Barone entered a divorce agreement that provided for joint custody and allowed Luciana to travel to Boston with their two children, ages 5 and 11, for a temporary four month visit. The agreement specified that after four months, Andre would travel to Boston, which he did, and return to Brazil with the children.  The agreement also provided that the stay in Boston is “non-extendable,” that the children “shall be delivered” to Andre on January 13, 2017, and that Andre “shall return with them to Brazil” where “they shall be delivered to the mother, for the beginning of the school year in Sao Paulo.” Instead of turning the children over to Andre on January 13, 2017, Luciana fled to San Diego with the children. Applying the Hague Convention to these facts, the court concluded that Luciana breached Andre’s rights of custody as provided in the Brazilian divorce agreement.  Since Luciana wrongfully retained the children in the United States and no grave risk of harm was presented to the children by returning them to Brazil, the Court granted Andre’s petition.

          At the hearing, Luciana suggested that the United States was the children’s habitual residence since they had been present here since September 2016 and two state courts (Massachusetts and California) issued TROs. However, it was undisputed that “immediately before” Luciana retained the children in Boston, and then in San Diego, the children were habitually resident in Brazil. The terms of the divorce agreement made clear that “the settled intention of the parents” was for the children to return to school in Sao Paulo and retain their Brazilian domicile. Mozes v. Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001). Moreover, the argument that the children had acclimated to the United States lacked merit. Luciana was temporarily permitted to be in the United States on a student visa, did not have a job, and did not have a place for the children to stay. She was dependent on financial support from Andre pursuant to the Brazilian divorce agreement. During the course of several months, Luciana moved the children from Brazil, to Boston, and then to San Diego, where the children were staying in a hotel until funds were exhausted.  At the time the TRO issued, Luciana had vacated the hotel and her plans for food and shelter were uncertain The Court stated that it “can say with confidence” that the children’s attachments to the United States have not “changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed.”

          The district court indicated that the only colorable exception to return was whether a “grave risk” of harm exists if the Court orders the children returned to Brazil. Luciana obtained a domestic violence restraining order from a state court in Boston and another one in San Diego. In the restraining order request. Luciana alleged that Andre called her on January 29, 2017, and threatened to kill her and the kids. To overcome the Convention’s imperative that courts return wrongfully retained children under the grave risk exception, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Souratgar v. Lee 720 F.3d 96, 103 (2d Cir. 2013. Some courts, however, have found that a threat to kill the children or a history of domestic violence qualifies as a grave risk. See Van De Sande v. Van De Sande, 431 F 3d 567, 570 (7th Cir. 2005); Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). To determine if a grave risk of harm exists, the Court heard testimony from Andre and Luciana. Luciana testified that in twenty years of marriage, Andre never behaved violently except for a fight the day they divorced—she says Andre hit her. Luciana claimed that after she obtained a TRO in Boston, Andre threatened to kill her and the kids. Andre categorically denied both allegations. He also offered a third-party declaration from Carmen Gomide, Luciana’s good Samaritan host for a few weeks in San Diego, who opined Luciana was unstable and said she feared Luciana would kill the kids.

          The Court concludes Luciana has failed to show by clear and convincing evidence a “probability” that Andre will harm the children.  The testimony revealed that both parents deeply loved their children and were highly protective of them. There was no credible evidence that Andre presents a grave risk of harm to the children. Notably, after Andre was alleged to have threatened Luciana in Brazil, Luciana agreed to shared custody of the children. No reports of violence were ever filed. And the Brazilian divorce agreement was thereafter entered, in which joint custody was awarded. In addition, when Luciana refused to comply with the divorce agreement and called the police in Boston, Andre did not react with violence. He returned to Brazil and pursued lawful options through the courts; he filed suit in Brazil to enforce the divorce agreement, contacted the Central Authority (State Department), and retained legal counsel in the United States and filed this petition. Andre’s past actions confirmed that he would l comply with the Court’s order to safely return the children to Brazil and abide by any custody decision in the Brazilian courts, where that determination is properly made.

          The court granted the petition and directed that Andre return to Brazil with Pedro and Luiz Felipe so the important matter of child custody can be determined by the Brazilian courts. Andre was directed to pay all reasonable travel expenses for the children and Luciana to return to Brazil.