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Friday, December 8, 2017

Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017)


In Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017), the district court granted the Petition of Leticia Isabel Velarde for the return of her son A.G. to Mexico. 

Petitioner Leticia Isabel Velarde was born in Laredo, Texas and was a United States citizen. Petitioner grew up in Mexico and was also a Mexican citizen. Her family resided in Nuevo Laredo, Mexico. Respondent Johnathan Asher Gurgan was a United States citizen. Petitioner came to the United States in 2002 for employment and stayed until 2013.  On November 8, 2012, A.G. was born in New Braunfels, Comal County, Texas. He was a United States citizen. Petitioner testified that she believed he was also a Mexican citizen by virtue of his birth to a Mexican mother. In August 2013, Respondent enrolled in University of Texas San Antonio (“UTSA”). The family lived together in an apartment in New Braunfels from the time of A.G.’s birth in November 2012 until October 2013, when they moved together to Mexico. During this time, they discussed moving to and living in Mexico. Due to financial issues, the cheaper cost of living in Mexico, the desire to be near Petitioner’s family in Mexico while being close to the university in Laredo, Texas, and possibly a desire to remove themselves from issues with Child Protective Services, Petitioner and Respondent jointly agreed to move the family to Mexico in October 2013. Although it was undisputed that the parents jointly agreed to move to Mexico, the duration of the planned move was disputed. Respondent testified that, at the time of the move, he did not have the intent to abandon the United States to take permanent residence in Mexico. Petitioner testified that they were “finally moving to Mexico” as they had talked about ever since they met, and her intention at the time of the move was not to return to the United States. She testified that they had visited often and always talked about living there, and when A.G. was born it seemed like the perfect opportunity for her to go back to her family and friends there with her son and husband. In mid-2016, Petitioner started discussing the possibility of divorce with Respondent. Respondent was upset and was opposed to getting a divorce. Petitioner testified that Respondent’s attitude about staying in Mexico changed sometime after June 2016. She testified that her intent to stay in Mexico had not changed. On November 25, 2016, Petitioner filed for divorce in Mexico (3rd Judicial District of Nuevo Laredo, Tamaulipas, Mexico). On November 30, 2016, Respondent said he was taking A.G. to the park but instead took the child to San Marcos, Hays County to the residence of his mother. A.G. was four years old and had been living in Mexico with his parents continuously since he was 11 months old. Before taking A.G. to San Marcos, Respondent researched the requirements of the Hague Convention, and he left some of his research and notes behind in Mexico. Next to the sentence “Therefore, failing to consider shared parental intent could potentially cause the court to overlook whether a parent is acting unilaterally to alter what had been previously agreed to by both parents,” which Respondent partially underlined, Respondent wrote, “we had agreed to stay in Mexico if possible from an employment perspective but I knew that Letty would not want to return. I didn’t either except for the divorce idea.” Also in the margin he had written “this is our house”; “1 yr lease”; “intention.” 

  On December 5, 2016, Respondent filed a suit for possession and custody in 22nd District Court, Hays County.  He stated that he did not want a divorce. On July 13, 2017, the Mexican court issued a divorce decree. On August 21, 2017, this proceeding was filed. The only real dispute was whether Mexico or the United States was the country of A.G.’s habitual residence immediately prior to the removal in November 2016. Petitioner contended that the parties agreed to move to Mexico permanently, and that Respondent unilaterally changed his mind in 2016 when his behavior and religious views changed and Petitioner began discussing a possible divorce. Respondent contended that he and Petitioner never agreed to move to Mexico permanently, but only for a limited duration while Respondent completed his education, and that A.G.’s country of habitual residence had always remained the United States. 
The district court noted that in 2012, the Fifth Circuit “join[ed] the majority of circuits that ‘have adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence.’ ”  “This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age” and “parents’ intentions should be dispositive where ... the child is so young that ‘he or she cannot possibly decide the issue of residency.” In such cases, “the threshold test is whether both parents intended for the child to ‘abandon the [habitual residence] left behind.” Absent shared intent, prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion. Context, rather than specific periods of time spent in one location or another, is key. Berezowsky v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014). 

The Court did not agree with Respondent’s version of the facts, and a preponderance of the evidence indicated that the family abandoned Texas and intended to and did make A.G.’s home in Mexico indefinitely or permanently. Rather than finding an intent to move for a maximum amount of time, the Court found that the initial move was intended to be permanent, or alternatively for a minimum of two years. The Court further found that, at least by 2015, the parents had mutually agreed to stay in Mexico if possible, and there was no agreement to return to the United States at any specific time. The undisputed evidence is that the family abandoned the only “home” A.G. had had in Texas and there was no indication that anyone viewed him as having his habitual home in Texas from which he was temporarily absent while living in Nuevo Laredo. Rather, the evidence showed that the “two parents reached an agreement to raise [A.G.] in Mexico” permanently or indefinitely. Berezowsky, 765 F.3d at 471. Because A.G.’s home in November 2016 was Mexico, and both parents intended it to be Mexico at that time, the Convention dictated that Mexico was his country of habitual residence and A.G. had to be returned there. 

Alemu v Zerihum, 2017 WL 5989213 (D. Colorado, 2017) [Israel][Habitual Residence][Default] [Petition granted

]
In Alemu v Zerihum, 2017 WL 5989213 (D. Colorado, 2017) the district court granted Seleshi Tegan Alemu’s Petition for the return of YT to Israel. YT was born to petitioner and respondent in 2007 in Israel and was 9 years of age. Petitioner and respondent divorced in 2011. As of late 2015, YT was a resident of Israel, living in a home there with Respondent, a Mr. Berhano Terunech, and a half-sibling. In November 2015, Petitioner signed a letter allowing respondent to take YT to the United States for a three-week visit with family. After three weeks passed, Respondent indicated during phone conversations that she wanted to remain in the United States for an additional three months. Petitioner objected but agreed to allow Respondent to remain in the United States for a total of three months. After three months passed, Respondent informed Petitioner that she was not returning YT to Israel. Petitioner objected and told Respondent “that was not right.” Respondent thereafter sent Petitioner a message indicating that he would not see YT again. Petitioner filed the action on December 9, 2016, within one year of Respondent’s refusal to return YT to Israel. Although Respondent was properly served, she did not appear at the hearing, and failed to participate in the action. 

  The district court found that YT was a habitual resident of Israel at the time of removal. Petitioner testified that YT was born in Israel in 2007, and remained there until his removal in 2015. The Court had no trouble concluding that YT was a habitual resident of Israel. Israeli law provides that parents of children are vested with custodial rights, including the right to determine a place of residence. Petitioner testified and submitted exhibits indicating that he was vested with court-ordered custodial rights. The Court concluded that Petitioner set forth sufficient facts to make a prima facie showing of an unlawful removal. Because Respondent declined to attend the hearing, or to otherwise participate in this litigation, she failed to meet her burden of establishing a defense. 

Monday, December 4, 2017

Marks v. Hochhauser 2017 WL 5760345 (2d Cir., 2017) [Thailand] [Federal & State Judicial Remedies] [Retention] [Accession]



          In Marks v. Hochhauser 2017 WL 5760345 (2d Cir., 2017) the Second Circuit held that for purposes of the Convention  “retention” is a singular and not a continuing act; and that the Convention does not enter into force until a ratifying state accepts an acceding state's accession.

          The parties were American citizens who were living in Hong Kong when their three sons were born, one in 2002 and twins in 2005. In July 2005, the parties and the children relocated to Bangkok, Thailand. In August 2015, Marks and Hochhauser were divorced, in Thailand, and the divorce judgment granted Hochhauser sole custody of the Children. On September 18, 2015, Hochhauser and the Children traveled to the United States to visit Hochhauser’s ill mother. Before their departure, Hochhauser represented to Marks and the Thai court that she and the Children would stay in New York for three weeks and then return to Thailand on October 10, 2015. On October 7, 2015, Hochhauser sent Marks an email as follows: “I have made the decision to remain in the United States with the boys. It is clear to me now that there is no workable solution for us to live in Thailand. This decision was based upon trying to build a future for both myself and them, not out of any anger toward you about the past or any desire to exclude you from their lives. The boys need you to continue to be an important part of their lives and I will do as much as I can to facilitate that. Hopefully we can find a way to build a working relationship for their benefit.” On January 25, 2016, the Thai Court of Appeals vacated the trial court’s judgment in part and held that Marks and Hochhauser “shall exercise joint custody of all of their three minor children.”  

          Marks filed a petition for the return of the Children to Thailand on September 9, 2016, within one year of the date Hochhauser advised Marks that she and the Children would not be returning to Thailand. Hochhauser moved to dismiss the petition, arguing, inter alia, that any wrongful retention of the Children took place prior to the Convention’s entry into force between the United States and Thailand. The district court granted the motion to dismiss the petition. It first concluded that “retention” is a singular and not a continuing act and that the singular act here occurred on October 7, 2015, when Hochhauser sent her email to Marks advising that she and the Children were not returning to Thailand. It then concluded that the Convention did not enter into force between the United States and Thailand until April 2016, after the United States accepted Thailand’s accession to the Convention. The district court held that the retention occurred before the Convention entered into force between the two countries and entered judgment on November 7, 2016, granting the motion to dismiss the petition.

          The Second Circuit affirmed. It agreed with the district court that “retention” for these purposes is a singular and not a continuing act. It concluded that the Convention contemplates that “retention” occurs on a fixed date. Here, that date was October 7, 2015, when Hochhauser advised Marks that she would not be returning with the Children to Thailand.

          The Second Circuit observed that Article 35 of the Convention provides that it “shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Convention, art. 35. Hence, if the removal or retention occurs before the Convention has entered into force between two States, the Convention does not apply.

          The Court noted that the Convention does not define “Contracting State,” but Articles 37 and 38 provide two separate procedures for countries to accept the Convention. Under Article 37, “[t]he Convention shall be open for signature by the States which were Members of the Hague Conference of Private International Law [the ‘CPIL’] at the time of its Fourteenth Session.” Convention, art. 37. Once a State signs, the Convention must be “ratified, accepted or approved and the instruments of ratification, acceptance or approval” must be deposited with the Ministry of Foreign Affairs in the Netherlands. Convention, art. 37. Article 38 provides an acceptance procedure for states that were not members of the CPIL at the time of its fourteenth session. In lieu of ratification, these states may “accede” to the Convention. Article 38 explains that: Any other State may accede to the Convention. ... The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. ... The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Convention, art. 38. As Article 38 makes clear, accession requires the acceptance of other states before the Convention “will enter into force,” i.e., the accession has effect only as to Contracting States that “have declared their acceptance of the accession.” Id.

          At the time the Convention was opened for signature, the United States was a member of the CPIL and Thailand was not. The United States signed the Convention in 1981 and ratified it, thereby becoming a Contracting State, in 1988, and the Convention entered into force in the United States on July 1, 1988. See Contracting State Status Table; Souratgar, 720 F.3d at 102 n.5. Thailand acceded to the Convention, pursuant to Article 38, on August 14, 2002, and it entered into force in Thailand on November 1, 2002. Id.  The United States accepted Thailand’s accession to the Convention on January 26, 2016. See Acceptances of Accessions: Thailand, Hague Conference on Private International Law, https://www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=670 (last visited Sept. 26, 2017) (“Acceptances of Accessions Table”). The first day of the third calendar month after the United States accepted Thailand’s accession was April 1, 2016. See id.; Convention, art. 38.


          The Court then held that the Convention does not enter into force until a ratifying state accepts an acceding state's accession and that Article 35 limits the Convention's application to removals and retentions taking place after the Convention has entered into force between the two states involved. Therefore, because the Convention did not enter into force between the United States and Thailand until April 1, 2016, after the allegedly wrongful retention of the children in New York on October 7, 2015, the Convention did not apply to petitioner's claim.

Taglieri v. Monasky ,2017 WL 5895196 (6th Cir., 2017) [Italy] [Habitual Residence][Grave Risk of Harm] [Petition granted]



          In Taglieri v. Monasky, 2017 WL 5895196 (6th Cir., 2017) the Sixth Circuit held that where a child lives exclusively in one country, that country is presumed to be the child’s habitual residence. In this case the country of habitual residence was Italy and that there was no grave risk of harm to the child under the meaning of the Convention. It affirmed the district court’s judgment ordering the return of A.M.T. to Italy under the Hague Convention.

          Taglieri, a citizen of Italy, was studying in Chicago when he met Monasky, an American citizen. They married and decided to move to Italy. Taglieri was licensed to practice medicine in Italy. Monasky had a fellowship in Milan. Monasky became pregnant. Monasky alleged that Taglieri was sexually abusive and frequently hit her. Monasky encountered professional difficulties and did not speak much Italian. Monasky applied for jobs in the U.S., contacted divorce lawyers, and researched American childcare options.  After an argument, Monasky took baby A, sought refuge in a safe house, and left Italy with eight-week-old A. Taglieri obtained the termination of Monasky’s parental rights in Italy, and Taglieri filed a petition in the United States District Court for the Northern District of Ohio on May 14, 2015, seeking the return of his daughter to Italy pursuant to the Convention. The district court held a four-day trial in March 2016. In an order issued six months later, the district court granted Taglieri’s petition for the return of A.M.T. to Italy, to be accomplished within forty-five days.

          The Sixth Circuit affirmed. It found that Taglieri had established that A.M.T. was removed in breach of the law of the State in which she was habitually resident. It noted that Simcox and Friedrich I stand for the proposition that when a child has lived exclusively in one country, that country is presumed to be the child’s habitual residence. In Robert v. Tesson, 507 F.3d (6th Cir. 2007), it held that “a child’s habitual residence is the nation where, at the time of their removal, the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ” In Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017), a case involving very young children traveling between nations it  concluded that, under those circumstances, a court may determine a very young child’s habitual residence by considering the “shared parental intent” of where the parents last mutually intended the child to live. The Court indicated that it uses three distinct standards to determine a child’s habitual residence under the Convention. In cases where the child has resided exclusively in a single country, that country is the child’s habitual residence. But when the child has alternated residences between two or more nations, the analysis is more complicated. In such cases, it begins by applying the acclimatization standard. If that test supports the conclusion that a particular country is the child’s habitual residence, then that is the end of the analysis. But if the case cannot be resolved through application of the acclimatization standard, such as those cases that involve “especially young children who lack the cognizance to acclimate to any residence,” it then considers the shared parental intent of the child’s parents.

A straightforward application of precedent compelled the conclusion that the habitual residence of A.M.T. was Italy. A.M.T. was born in Italy and resided there exclusively until Monasky took A.M.T. to the United States in April 2015.  It rejected Monasky’s argument that the opinion in Ahmed required a different result. Ahmed spoke broadly about young children, but it dealt specifically with the application of the acclimatization standard, which both Robert and Simcox recognized as difficult to apply in cases of small children. Robert made clear that the acclimatization test did not apply to children who had remained in one nation; rather, that test “should apply when a child has alternated residences between two or more nations.” Ahmed’s adoption of a shared-parental-intent standard made such intent relevant only in those cases where the acclimatization standard both applies and fails. Ahmed did not modify or displace the alternative standard and guidance that Friedrich I and Simcox provided for children with exclusively one country of residence. Robert and Ahmed dealt with one situation, while Friedrich I and (in part) Simcox dealt with another. This was not a case where “a child has alternated residences between two or more nations,” the situation that Robert’s acclimatization test was crafted to address and the one that faced the Ahmed panel. Prior to the removal, A.M.T. never was outside of Italy. “Where a child has remained in one place for its entire life, that place is the expected location where it may be found and may be considered its residence. Thus, A.M.T.’s habitual residence was the country from which she was taken, Italy.1


          The district court found Monasky’s testimony with respect to the domestic and sexual abuse against her to be credible. But the court also observed that “the frequency with which Taglieri subjected Monasky to physical violence and severity of the physical violence is unclear,” and found that there was “no evidence to suggest that Taglieri was ever physically violent towards A.M.T.” The first half of the exception makes plain that the risk of physical or psychological harm is directed to the child. Chief Judge Oliver found that the frequency and severity of violence to Monasky were unclear, and that there was no evidence that violence was ever directed at A.M.T. The facts, while demonstrating that Taglieri engaged in appalling and justly censurable activity, did not “show that the risk to the child is grave, not merely serious.” Friedrich II, 78 F.3d at 1068 (quoting Public Notice 957, 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986)). As a result, Monasky failed to meet her burden to show by clear and convincing evidence that a grave risk of harm to A.M.T. exists or that there is a grave risk that A.M.T. would be placed in an intolerable situation.




Tuesday, October 10, 2017

Salguero v Argueta, 2017 WL 4475995 (E.D. North Carolina, 2017) [El Salvador ][Costs]


          In Salguero v Argueta, 2017 WL 4475995 (E.D. North Carolina, 2017) the matter was before the clerk on petitioner Jose Gustavo Moneterros Salguero’s motion for payment of costs following the court’s order to return his minor child to El Salvador.. Respondent did not file a response, and the deadline for doing so passed. This matter was referred to the clerk for ruling at the direction of the presiding judge.

        The clerk’s decision stated that under the plain language of the statute, 22 U.S.C. § 9007(b)(3)  the court has the duty to order the payment of necessary expenses and legal fees unless respondent satisfies her burden of showing that such an order would be clearly inappropriate. In this case, respondent failed to offer any response, and therefore the clerk could not find that she  met her burden in establishing that an award of expenses to petitioner was clearly inappropriate. Accordingly, the clerk only considered whether the expenses requested by petitioner constituted a “necessary expense” related to the return of the minor child and are reasonable. See Dawson v. McPherson, No. 1:14CV225, 2014 WL 4748512, at *2 (M.D.N.C. Sept. 23, 2014); Trudrung v. Trudrung, No. 1:10CV73, 2010 WL 2867593, at *1 (M.D.N.C. July 21, 2010).

          Petitioner sought $2,064.20 for expenses incurred by him personally, and submitted supporting receipts. His expenses included the costs he incurred in purchasing a visa and passport to travel to the United States ($219.00), a round trip flight from El Salvador ($777.60), a one-way flight to El Salvador for the child ($426.60), and his lodging in North Carolina during the custody exchange of the child ($641.00). The clerk found these costs were all necessary expenses related to the return of the child and were reasonable. See Hirst v. Tiberghien, Civil Action No., 6:13-00729-JM, 2012 WL 6827813, at *5 (D.S.C. Dec. 20, 2013) (awarding a petitioner expenses including roundtrip airfare for petitioner, lodging, and return airfare for children); Judge v. Williams, No. 4:11-CV-119-F, 2011 WL 3759476, at *2 (E.D.N.C. August 25, 2011) (awarding expenses for petitioner’s roundtrip airfare, lodging, and return airfare for child).

           Petitioner also sought expenses incurred by counsel on his behalf, in the amount of $12,427.36. In declarations, petitioner’s current and prior counsel stated that their retention agreements with petitioner required him to reimburse counsel’s law firms for costs incurred on his behalf during the representation of him in this action. In support of his request for these expenses, petitioner submitted  declarations of counsel, and for some expenses, supporting invoices. The expenses for which petitioner submitted supporting receipts or invoices include the costs for court interpreters for the hearing in this matter ($3,682.00), costs for translation of documents offered as exhibits in the case ($2,149.29), fees for the transcripts of the hearing on the petition ($1,695.75), lodging for his counsel and some meals during the hearing on the petition ($873.03), lodging for his counsel during the custody exchange ($208.69), the services of a private investigator to confirm the location of the child within the Eastern District ($731.80), the costs of subpoenaing airline records ($20.00, and the fee for an expert witness ($350.00). The clerk found  that these constituted necessary expenses related to the return of the child. See Cuellar v. Joyce, 603 F.3d 1142-43 (9th Cir. 2010) (finding the expenses incurred by attorney for lodging and meals during oral argument and post-argument mediation to be “necessary expenses incurred by or on behalf of petitioner); Dawson, 2014 WL 4748512, at * 8 (awarding petitioner expenses for, inter alia, the cost of a private investigator to locate the abducted children in the United States); Saldivar v. Rodela, 894 F. Supp. 2d 916, 945 (W.D. Tex. 2012) (awarding costs for expert witness fees); Neves v. Neves, 637 F. Supp. 2d 322, 344 (W.D.N.C. 2009) (awarding petitioner translation expenses); Friedrich v. Thompson, No. 1:00-CV-772, 1999 WL 33951234, at *2 (M.D.N.C. Nov. 26, 1999) (awarding petitioner the cost of translating documents from German to English). See also 28 U.S.C. § 1920 (providing for the taxation of costs of fees of court reporters for transcripts necessarily obtained for use in the case, compensation of interpreters, and fees for copies of papers necessarily obtained for use in the case); Saldivar, 894 F. Supp. 2d at 943 (concluding that costs taxable under 28 U.S.C. § 1920 are “per se awardable” under ICARA). The clerk also finds that these requested expenses, supported by invoices, are reasonable.

          Petitioner also sought expenses incurred by his counsel on his behalf which were not supported by invoices; his current and prior counsel stated in declarations that invoices are not available. These expenses included costs for counsel’s travel for trial and the custody exchange ($1,034.45); meals during the trial and custody exchange ($243.02);1 postage, telephone, and courier costs ($843.36); color copies, scanning, and printing costs ($31.40); long distance phone charges ($24.26); filing fee ($400.00), and attempted service of process costs ($140.31). With the exception of the filing fee, which was documented in the record = these remaining expenses were not awarded. Without supporting invoices, additional documentation, or some further explanation from counsel, the clerk could not find that the costs for postage, telephone, courier costs, copies, scanning, printing or long distance phone charges were necessary, nor can the clerk find any of the other expenses were reasonable. See Whallon v. Lynn, No. Civ.A.00-11009-RWZ, 2003 WL 1906174, at * (D. Mass. April 18, 2003) (declining to award petitioner “inadequately documented” expenses), aff’d, 356 F.3d 138 (1st Cir. 2004); Dawson, 2014 WL 4748512, at *9 (refusing to award expenses for which a petitioner provided no documentation because “[i]f the Court cannot assess the validity of the expenses, it cannot begin to address whether such expenses were in fact reasonable or necessary”). 

          Petitioner’s request for expenses incurred on his behalf by counsel was reduced by the amount of $2,316.80., Petitioner was awarded costs in the amount of $12,174.76.


Wednesday, October 4, 2017

Pliego v Hayes, 2017 WL 4322445 (2017, W.D. Kentucky)[Turkey] [Fees, Costs and Expenses]



In Pliego v Hayes, 2017 WL 4322445 (2017, W.D. Kentucky) Petitioner Pliego Moved for Fees, Costs, and Expenses. At the request of the Court, the parties filed affidavits in support and in opposition to the motion. 

  The Court observed that there were two prior cases in the district court in which it granted Pliego’s petition and awarded fees. Following Pliego I, the Court awarded fees to Pliego in the amount of $75,091.425, which represented a 50% reduction in the award sought by Pliego. Pliego, 2015 WL 1893426, at *1–3 (W.D. Ky. Apr. 24, 2015). Following Pliego II, the Court awarded Pliego fees in the amount of $100,471.18. Following the Court’s grant of Pliego’s second Petition for Return of Child in Pliego II, Hayes appealed to the Sixth Circuit Court of Appeals, which affirmed the decision of the Court. Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016). Pliego now sought the fees, costs, and expenses incurred during the appeal of Pliego II to the Sixth Circuit.  Though Pliego requested that the Sixth Circuit award him those fees on appeal, the Sixth Circuit found that the district court was the proper Court to determine any potential award of fees, and it therefore “d [id] not reach the issue of whether the district court that ordered the child’s return in Pliego II may, upon separate motion, award fees incurred on th[e] appeal.” Pliego, 843 F.3d at 238. Pliego requested total attorney and paralegal fees of $56,122.50. Additionally, Pliego requests costs and expenses incurred during the appeal in the amount of $2,477.94. 

Hayes argued that the Court should not give an award of fees for several reasons. Among these are the facts that, according to Hayes, she has since been awarded custody by Turkish courts, Pliego has refused to comply with Turkish custody orders, Pliego has continued to assert his immunity to avoid paying any child support or legal fees to Hayes, that Pliego was incurring about $750 a month for supervised visits with her son, and that an award of fees would render Hayes unable to care for her son. Moreover, Hayes contended that $58,600.44 was excessive. Hayes stated that she had incurred additional costs and attorney fees resulting from the wrongful acts of the Petitioner, including: (a) refusing to comply with custody and visitation orders of the Ankara 11th Family Court; (b) directly interfering in timely execution of all custody and visitation orders by reasserting diplomatic immunity rights; (c) refusing to disclose the whereabouts of the child; and (d) filing three separate additional suits, all dismissed by the courts. 

The district court held that many of the issues detailed in Hayes’ supporting Affidavits, such as Pliego’s alleged “wrongful” actions in the Turkish courts, were irrelevant to the Court’s determination. However, certain matters, such as Hayes’ custody of her son, ability to obtain child support, and her ability to pay an award of costs and fees were relevant to this determination. The effect of Pliego’s requested costs and fees on Hayes’ ability to care for her child was a concern for the Court. Hayes argued that, should her award of sole custody be affirmed, she will be solely “financially responsible for the child, since the Petitioner specifically excluded any action for child support from his immunity waiver.” Second, the Court was also concerned with Hayes’ ability to pay such a high amount of fees and costs, having already been ordered to pay more than $175,000 in costs and fees following prior proceedings in this matter. Hayes further states in her response that “[s]he is not a diplomat, she does not have her living expenses paid by the US Government, [and that] she has been self supporting at a far lower salary than Petitioner’s, with far greater living expenses.” The Court found these arguments to be meritorious.

Based on a review of the information and supporting documents, the Court found that an award of $58,600.44 would be clearly inappropriate, and reduced the overall legal fees by 75%. Petitioner was awarded $14,650.11 for necessary attorney’s fees and costs. 

Wednesday, September 20, 2017

Crane v Merriman, 2017 WL 4079406 (W.D. Oklahoma, 2017[New Zealand] [Habitual Residence][Consent][Petition granted]


          In Crane v Merriman, 2017 WL 4079406 (W.D. Oklahoma, 2017) the district court granted the Petition by the father for the return of the children to New Zealand.

          The district court found that parties lived together in Auckland, New Zealand, in a domestic partnership which produced two children, A.E.C. who was born in August 2013, and R.F.A.C., who was born in September 2016. Both children were dual citizens of New Zealand and the United States. In April 2016, the parties decided to end their domestic partnership. Ultimately they agreed that Merriman would depart New Zealand with the children after Christmas 2016. Until her departure, Merriman had resided in New Zealand for about fifteen years. The children resided with both parents in New Zealand following their births. The oldest, A.E.C., was three years old when she left for the United States with Merriman; the youngest, R.F.A.C., was a little over two months old. Between April 2016 and December 2016, the parties agreed to, and executed, an agreement for property division and an agreement regarding the custody and care of the children. The Custody and Access Agreement executed in November of 2016 made clear that the parties would continue to be joint guardians of the children and share custody. The Custody Agreement provided that Merriman would “initially” have “primary care” of the children, subject to a specific plan for visitation by Crane during the period of 2017-2020 , as well as alternating residences over Christmas, with Christmas 2017 to be spent in New Zealand. The Custody Agreement stated that “no attempt will be made to overturn this agreement in the United States,” and provided that any review of the Agreement will be subject to “New Zealand law and jurisdiction.”  It included a provision reflecting Crane’s consent to the children relocating to the United States with Merriman, this provision appearing immediately after the provision stating that Merriman will “initially have primary care of the children ....”. It provided for visitation by Crane in New Zealand for two months in 2017, and that such visit to New Zealand will take place “as agreed in the period from the end of May to the end of August ... or as mutually agreed by both parties.” In mid-April 2017, Merriman asked Crane to agree to delay the planned visitation until July, to which he assented. The purpose of the delay was to accommodate Merriman’s job search in Oklahoma. On June 29, 2017, Merriman caused to be filed in the District Court of Oklahoma County a Petition for Paternity, Custody, Visitation and Child Support, seeking sole custody of the children. Merriman did not return with the children as previously agreed, and had Crane served with the Oklahoma state court Petition in early July 2017.

          The district court found that Merriman’s desire to obtain a court order in Oklahoma regarding custody of the children before returning them to New Zealand illuminated an underlying intent to avoid the parties’ New Zealand Custody Agreement, and was precisely the type of conduct the Hague Convention and ICARA seeks to prevent.

          The district court found that Crane established by a preponderance of the evidence that (1) the children habitually resided in New Zealand at the time of the retention. It noted that Courts in this circuit, adopting the approach implemented by the First, Fourth, and Fifth Circuits, have stated that “[i]n determining a child’s habitual residence, [the court] looks first to the shared intent or settled purpose of the persons entitled to determine the child’s permanent home; as a secondary factor, [it] may consider the child’s acclimatization to his or her current place of residence.” Mertens v. Kleinsorge-Mertens, 157 F. Supp. 3d 1092, 1103 (D.N.M. 2015). This approach is consistent with a prior unpublished decision from the Tenth Circuit, which states: “[a]lthough it is the child’s habitual residence that the court must determine, in the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the [retention] are important factors to be considered.” Kanth v. Kanth, No. 99-4246, 2000 WL 1644099, at *1 (10th Cir. Nov. 2, 2000) (unpublished).

          The Court found that, prior to their retention in the United States, the children habitually resided in Auckland, New Zealand. At birth, both children resided with the parties in New Zealand. A.E.C. resided with the parties for over three years in New Zealand; R.F.A.C. was a little more than two months old when he departed New Zealand with Merriman. Although the children had been in Oklahoma for nine months, had Merriman abided by the Custody Agreement, two out of the nine months would have been spent in New Zealand. Moreover, it was a stretch to contend, as Merriman did, that the Custody Agreement reflected a mutual intent to permanently relocate the children to Oklahoma, and thus establish Oklahoma as the place where they habitually reside as those terms are used in the Convention. A more consistent and sensical reading of the Custody Agreement was that it sought to preserve the children’s ties to New Zealand, in that it acknowledged the children’s strong ties to that country, and established a 50/50 residential regime as between Oklahoma and New Zealand for each child beginning at age six – two years from now for A.E.C. In any event, the Court found that, absent an expression of mutual intent to establish Oklahoma as their new permanent residence, presence here for nine months, under the circumstances of this case, was insufficient to support a finding that the children have acclimatized here and habitually reside in Oklahoma as opposed to New Zealand. Thus, the Court found that Crane has established the first element of his prima facie case by a preponderance of the evidence.

          The Court found that Crane established wrongful retention of the children in Oklahoma in violation of his custodial rights and that Crane was exercising his joint guardian at the time of the wrongful retention.  It rejected the defense advanced by Merriman that Crane consented to the relocation of the children in the Custody Agreement, and otherwise acquiesced in the relocation by agreeing to delay the visitation called for in the Agreement and assisting Defendant in the purchase of her home in Oklahoma. The evidence wass clear that Crane’s agreement to include relocation of the children to Oklahoma in the Custody Agreement was made in the context of the Agreement as a whole, which provided for extensive involvement and visitation by Crane until the children reach the age of six, and then required a 50/50 residential split between New Zealand and Oklahoma.