In Cruz v Sanchez, 2018 WL 4359217 (D.
South Carolina, 2018) the district court granted the parties’ joint motion
requesting that the Court authorize remote testimony for the Petitioner and for
certain witnesses who are likely to be called to testify by the parties. It
observed that under Rule 43(a), a court may permit remote testimony “[f]or good
cause in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P.
43(a). As the Fourth Circuit has noted, remote testimony does not
“preclude the respondent from confronting and conducting relevant
cross-examination of the witnesses,” so it does not offend due process
considerations. United States v.
Baker, 45 F.3d 837, 843-44 (4th Cir. 1995). Allowing
remote testimony in Hague Convention actions, as long as subject to certain
safeguards, is not without precedent. In Alcala v. Hernandez,
No. 4:14-CV-04176-RBH, 2015 WL 1893291, at *3 (D.S.C. Apr. 27, 2015), the court
required petitioner to be properly identified and testify from a private room,
free of outside influence. The petitioner’s counsel was also required to
troubleshoot his video-conferencing connection with the courthouse staff prior
to his testimony. The court found those safeguards were appropriate here to
ensure reliable testimony. As indicated in the Motion, the parties agreed to
ensure that their witnesses utilize an appropriate room from which to testify
by video-conference, free from outside interference. The parties also agreed to
require the witnesses to present official identification prior to testifying,
and have explained their willingness to work with the Court’s IT staff to
troubleshoot the video-conferencing system prior to trial. The court directed
that where
video-conferencing is not available or if technical difficulties arise, those
witnesses may also testify telephonically.
In our International Child Abduction Blog we report Hague Convention Child Abduction Cases decided by the US Supreme Court, the Second Circuit Court of Appeals, Circuit Courts of Appeals, district courts and New York State Courts. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.
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Monday, September 17, 2018
Crane v Merriman, 2018 WL 4291755 (W.D. Oklahoma, 2018)[New Zealand] [Necessary expenses] [Clearly inappropriate]
[New
Zealand] [Necessary expenses] [Clearly inappropriate]
In Crane v Merriman, 2018
WL 4291755 (W.D. Oklahoma, 2018) the district court granted in part and denied
in part the successful Plaintiff’s motions for attorney’s fees and costs by
denying an award of attorney’s fees but awarding non-attorneys fees costs.
Plaintiff brought the present action seeking
the return of his children to New Zealand. On September 14, 2017, the Court
granted Plaintiff’s petition and ordered that the couple’s minor children,
A.E.C. and R.F.A.C., be returned to New Zealand and placed in Plaintiff’s
custody pending further order of a New Zealand court or other disposition of
the underlying custody issues. The district court observed that ICARA provides,
in pertinent part, as follows: “Any court ordering the return of a child
pursuant to an action brought under section 9003 of this title shall order the
respondent to pay necessary expenses incurred by or on behalf of the
petitioner, including court costs, legal fees, foster home or other care during
the course of proceedings in the action, and transportation costs related to the
return of the child, unless the respondent establishes that such order would be
clearly inappropriate. See 22 U.S.C. § 2007(a)(3).
Plaintiff moved the Court for an award
of his attorney’s fees, transportation costs, and other expenditures related to
the return of the children: 1) $22,670.00 for legal work performed by his
Oklahoma counsel, Laura McConnell-Corbyn and Shane M. Riddles-Hill, incurred in
connection with these proceedings and an award of $1,015.05 in costs;1 2) $2,473.44 for legal work
performed by his New Zealand counsel, Margaret Casey QC, incurred in securing
representation in the United States and assisting moving counsel with case
preparation; 3) $1,770.58 for legal work performed by his New Zealand counsel,
Antonia Fisher QC, incurred in connection with proceedings in New Zealand and
locating additional assistance; 4) $1,926.58 for round-trip airfare from New
Zealand to Oklahoma; 5) $1,666.68 for airfare for A.E.C. from Oklahoma to New
Zealand; 6) $182.19 for accommodations from September 11, 2017 through
September 13, 2017, and an award of $866.25 for accommodations from September
13, 2017 to September 18, 2017; and 7) $226.55 incurred for a car rental from
September 11, 2017 through September 18, 2017.
Defendant argued
that any award of legal fees and expenses would be clearly inappropriate under
the circumstances. Defendant cited the financial disparity between the parties,
which Plaintiff did not refute: (1) Defendant’s annual salary was 53,000 New
Zealand Dollars (“NZD”); (2) Defendant had no significant assets of her own,
(3) Defendant’s monthly expenses exceeded her monthly income, (4) Defendant had
substantial debt, and (5) Defendant was on some governmental assistance and had
applied for child support. By comparison, Plaintiff (1) owned his own company,
(2) drew a salary of 84,000 NZD, and (3) owned two helicopters, a boat, and
three residential properties, one of which is valued at nearly 1 million
NZD.
The district court observed that “clearly
inappropriate” caveat to ICARA’s award of attorney’s fees to a prevailing
petitioner retains “the equitable nature of cost awards,” such that a
prevailing petitioner’s presumptive entitlement to an award is “subject to the
application of equitable principles by the district court.” Souratgar v. Lee
Jen Fair, 818 F.2d 72, 79 (2d Cir. 2016) (The term “clearly inappropriate”
is not defined in the statute, yet some considerations have arisen with
frequency in the relevant case law. One is whether a fee award would impose
such a financial hardship that it would significantly impair the respondent’s
ability to care for the child; a second is whether the respondent had a good
faith belief that her actions in removing a child were legal or justified. See
Rath v. Marcoski,
No. 18-10403, 2018 WL 3799875, at *4 (11th Cir. Aug. 10, 2018)
(unpublished) (collecting cases).
Another consideration—which bears some
relevance to the first—is whether an award would be “clearly inappropriate” in
light of the financial disparity between the parties. It is this consideration
that led to the conclusion that, under the circumstances of this specific case,
an award of attorney’s fees would be clearly inappropriate. Although employed,
Defendant has demonstrated that due to her income and expenditures, payment of
Plaintiff’s attorney’s fees would present a financial hardship and affect her
own ability to care for her children. Citing similar financial circumstances
and disparities, federal courts have denied a prevailing petitioner’s motion
for attorney’s fees as “clearly inappropriate.”
However, Defendant wa not blameless in
these proceedings and the Court found it appropriate to award Plaintiff his
non-attorney fee expenses in prosecuting this action. See Souratgar,
818 F.3d at 79 (“[I]n determining whether expenses are
‘clearly inappropriate,’ courts have considered the degree to which the
petitioner bears responsibility for the circumstances giving rise to the fees
and costs associated with a petition.”). The
Court awarded Plaintiff costs and expenses in the amount of $5,883.30,
which represents the following items: $1,015.05 in court costs; $1,926.58 for
Plaintiff’s round-trip airfare from New Zealand to Oklahoma; $1,666.68 for
airfare for A.E.C. from Oklahoma to New Zealand; $182.19 for Plaintiff’s
accommodations from September 11, 2017 through September 13, 2017, and $866.25
for Plaintiff’s accommodations from September 13, 2017 to September 18, 2017;
and $226.55 Plaintiff incurred for a car rental from September 11, 2017 through
September 18, 2017.
Moonga v Moonga, 2018 WL 4026020 (N.D. Georgia, 2018)[United Kingdom] [Necessary expenses]
In Moonga v Moonga, 2018 WL
4026020 (N.D. Georgia, 2018) the Plaintiff originally filed the action
seeking a return of his minor child to the United Kingdom. After a hearing the
Court granted the Plaintiff’s petition, and ordered that the child be
immediately returned to the United Kingdom in the company of her father, the
Plaintiff. The district court then granted Plaintiff George Choonga Moonga’s
Motion for Necessary Expenses in the reduced sum of $40,000.
The district court observed that Section
8(b)(3) of ICARA states that: Any court ordering the return of a child pursuant
to an action brought under section 9003 of this title shall order the
respondent to pay necessary expenses incurred by or on behalf of the petitioner,
including court costs, legal fees, foster home or other care during the course
of proceedings in the action, and transportation costs related to the return of
the child, unless the respondent establishes that such order would be clearly
inappropriate.
The district court noted that the statute creates a
“mandatory obligation on courts to award necessary expenses to a successful
petitioner, except when the respondent demonstrates that an award would be
clearly inappropriate.”
This creates a strong, rebuttable presumption in favor of a fee award.
Thus, the Court must proceed with two inquiries. The first asks whether
the petitioner’s requested fees were “necessary.” The second asks whether an
award of such fees would be “‘clearly inappropriate’ in light of respondent’s
financial circumstances, subjective good faith in his actions, or other
equitable circumstances that suggest further diminution is just.”
The Plaintiff requested a
total of $60,676.92 in fees and expenses. Included in this was $1,720.53 for
court costs, $50,365.00 for legal fees and expenses, and $8,591.39 for
transportation costs related to the return of the child. The inquiry was guided
by the lodestar framework.
Given the evidence and
totality of the circumstances, the Court found that the Plaintiff’s reported
costs of $60,676.92 were both reasonable and necessary.
The Court’s inquiry continued by determining the
appropriateness of awarding the Plaintiff’s requested fee. It noted that among
the relevant considerations in ICARA fee awards is whether a full fee award
would leave a parent unable to care for her child and “whether a respondent had
a good-faith belief that her actions in removing or retaining a child were
legal or justified.” The
Defendant bears the “substantial burden of establishing that a fee award is
clearly inappropriate.”
The defendant argued that an award would
be inappropriate because of her financial situation. Defendant claimed that she
“is currently unemployed with no source of income,” and that she is incurring
significant financial costs as a result of both this litigation and the ongoing
litigation in the United Kingdom. During the course of this case, however, the
Court found the Defendant to be fundamentally lacking in credibility. She
consistently made wild claims that have no basis in evidence or in fact, and
this situation was no different. Less than a year earlier she filed a sworn
statement in an English court saying that she was employed with a relatively
good salary. Although
she now claimed she was unemployed, she presented no evidence to support that
assertion. Nor had she
provided any evidence to suggest she would be so financially burdened by an
award of fees that she would no longer be able to care for the child. Given the
nature of this case, the Court found it entirely appropriate to award fees. However, some reduction in the award was also
warranted. Assuming the Defendant still had her job a full-fee award would
constitute over 80% of her annual salary before tax. That is a substantial
burden. The Court found that a reduction of approximately one-third was appropriate.
Miller v Miller, 2018 WL 4008779 (E.D. Tennessee, 2018) [Canada] [Habitual Residence] [Petition denied]
In Miller v Miller, 2018 WL 4008779 (E.D.
Tennessee, 2018) the
district court denied the Petition of James Christopher for the return of their
three children to Humboldt, Saskatchewan, Canada.
Mr. Miller and Mrs. Miller have been
married for nine years and were the biological parents of J.M.M. A.B.M., and
C.J.M., who were born in 2007, 2010, and 2012, respectively. In 2013, Mr.
Miller and Mrs. Miller mutually decided to move their family from Chattanooga
to Humboldt, Saskatchewan, Canada, to pursue economic opportunities and to
avoid creditors associated with a failed business venture that Mr. Miller had
launched in Chattanooga. They also mutually envisioned the move as a “five-year
plan,” which meant that after five years they planned to reevaluate their
decision to relocate to Canada and determine whether they wanted to live there
for a longer time.
After the Millers completed the move
in May 2013, they eventually settled into a rental house in Humboldt, where
J.M.M. had his own bedroom and A.B.M. and C.J.M shared a bedroom. At the time,
J.M.M. was six years old, A.B.M. was three years old, and C.J.M. was five and a
half months old. The Millers began to build their life in Canada. As a family,
they applied for permanent resident status. Mr. Miller obtained employment in
the construction industry. Mrs. Miller also obtained employment, though she was
principally the children’s caretaker. The two oldest children, J.M.M. and
A.B.M., enrolled in school, while the youngest, C.J.M., remained with Mrs.
Miller or under a babysitter’s supervision. Mr. Miller and Mrs. Miller also
enrolled the children in Canadian healthcare plans. As for the children’s
social lives and activities, the children made friends in their neighborhood
and through participation in sports programs.
J.M.M. became well-known by neighbors and picked vegetables from their
yards, and the children viewed a pair of local family friends, Michael and
Sherry Kwasnica, as their surrogate grandparents and referred to them as
“grandpa” and “grandma.” J.M.M. and A.B.M. played youth-league ice hockey,
though C.J.M. was too young for it. The children also took part in numerous
outdoor activities, including Ducks Unlimited,3 canoeing, camping, quidding,
kayaking, and ice fishing.
Mr. Miller
sensed that Mrs. Miller was depressed and not coping well with being away from
her family. Their marriage suffered, and Mr. Miller knew it was “on the rocks.”
They had lengthy discussions about their marital problems, and at one point, in
February 2017, Mrs. Miller told Mr. Miller that they were “headed for a
divorce.” In the throes of their
capsizing marriage, Mrs. Miller was eager for her family’s company. According
to Mr. Miller, she issued an ultimatum to him: she was going to leave Canada and
return to Chattanooga with or without him. In response, Mr. Miller agreed that
he, Mrs. Miller, and the children would leave Canada together as a family,
hoping that the move would buoy their marriage. The family began preparing for
the move. They rented two U-Haul trucks, which they fully loaded with their
belongings—including all the children’s belongings—and they sold or gave away
anything that did not fit into the trucks. They also packed the ATV and the
canoe they used for quadding and canoeing, respectively. The Millers’ friends
threw farewell parties for them. Their friends also helped them empty and clean
their house. The Millers canceled their utilities. They returned the house keys
to the owner. Mr. Miller quit his job.
On September 19, 2017, the Millers
left Canada for Chattanooga.
During the trip, Mrs. Miller asked Mr.
Miller for all the passports, and he surrendered them to her.
The children arrived there with their parents on September 21 or
22. he family unloaded the children’s and Mrs. Miller’s belongings into Mrs.
Miller’s mother’s basement, which became the children’s new living space, but
the family’s belongings were so numerous that they had to unload some of them
into local storage units. Mr. Miller did not cohabitate with Mrs. Miller in the
basement; they had agreed to maintain separate residences once they arrived in Chattanooga.
Mr. Miller moved in temporarily with Mr. Castle, who opened his home to him,
while Mrs. Miller stayed at her mother’s house with the children. Later in September, Mr. Miller enrolled J.M.M.
and A.B.M. in school. Despite living apart from the children, Mr. Miller
continued to see them at least two weeknights and most weekends. In November,
Mrs. Miller told him that she wanted a divorce. Within days of receiving this
news, he returned to Canada and looked into resuming his old job and the
availability of the family’s old house. Afterwards, he called Mrs. Miller, and
he informed her that he “wanted to go back” to Canada and “wanted the boys to
come back with [him].” According to Mr. Miller, Mrs. Miller expressed her
desire for the children to remain in Chattanooga. While
still in Canada, Mr. Miller did “homework” on the Hague Convention, and he
pursued additional legal advice specifically relating to “how ... it work[s].” He
returned to Chattanooga without contacting the Saskatchewan Central Authority
and requesting the children’s return to Canada under the Hague Convention.
On March 27, 2018, Mrs. Miller filed
for divorce. On the same day, Mr. Miller contacted the Saskatchewan Central
Authority and applied for the children’s return to Canada. After making the
trip back from Florida a few days later, Mr. Miller arrived at Mrs. Miller’s
mother’s house to drop off the children. He fled from the house—with the
children—after learning that a process server was waiting there to serve him.
Mrs. Miller testified that Mr. Miller refused to return the children to her
until she instructed the process server to leave. Finally, during the course of
all these events—which occurred roughly between September 2017 and March
2018—the bulk of the evidence indicated that the children had made friends in
Chattanooga. Mr. Miller resided in Canada, in the same house that he once lived
in with his family.
The district court found that Mr.
Miller indisputably agreed to leave Canada and return to Chattanooga with his
family, out of concern for Mrs. Millers’ mental health and out of hope to boost
their marriage. The Millers’ departure from Canada had every semblance of
permanency. They packed all their belongings—so many that they actually had to
unload some of them into storage facilities, and they sold or gave away the
belongings that they were unable to pack. They canceled the utilities. They
returned the keys. Mr. Miller resigned from his job. The Millers’ friends threw
farewell parties for them, with going-away gifts. Other than claiming that one
of these parties was actually a birthday party and not a farewell party, Mr.
Miller opposed none of these facts.
The district court observed that the record
suggested that Mr. Miller initiated this case with the intent to forum shop—to
postpone or circumvent custody-related proceedings in Tennessee and arrange for
them to occur, if at all, in only one possible location, Canada. From this evidence, the Court had a
hardened conviction that Mr. Miller invoked the Hague Convention to duck the
proceedings in Hamilton County Circuit Court and place Mrs. Miller in the
difficult position of having to pursue those proceedings in his preferred
forum, Canada. The evidence supporting the Court’s conviction of forum shopping
was by itself a basis for denial of his Petition. See Jenkins,
569 F.3d at 557–58 .
The court indicated that to establish wrongful retention
under the Hague Convention, Mr. Miller must prove first by a preponderance of
the evidence that Canada was the children’s country of habitual residence. Friedrich,
983 F.2d at 1400; Guevara,
180 F. Supp. 3d at 525; Hague Convention, art. 3; see
generally Text and Analysis,
51 Fed. Reg. at 10504 If he succeeds in establishing
that Canada is the children’s country of habitual residence, he must then prove
by a preponderance of the evidence that (1) Mrs. Miller, by retaining the
children in Chattanooga, breached his custody rights under Canadian law and (2)
at the time of their retention, he was actually exercising those rights, or
would have exercised them if not for their retention. Friedrich,
983 F.2d at 1400; Guevara,
180 F. Supp. 3d at 525; Hague Convention, art. 3. The Sixth Circuit identified five lodestars to
guide itself—and district courts in future cases—to a proper determination of a
child’s habitual residence: First, habitual residence should not be determined
through the “technical” rules governing legal residence or common law domicile.
Instead, courts should look closely at “[t]he facts and circumstances of each case.”
Second, because the Hague Convention is concerned with the habitual residence
of the child, the court should consider only the child’s experience in
determining habitual residence. Third, this inquiry should focus exclusively on
the child’s “past experience.” “Any future plans” that the parents may have
“are irrelevant to our inquiry.” Fourth, “[a] person can have only one habitual
residence.” Finally, a child’s habitual residence is not determined by the
nationality of the child’s primary care-giver. Only “a change in geography and
the passage of time” may combine to establish a new habitual residence. Robert,
507 F.3d at 989 (quoting Friedrich,
983 F.2d at 1401–02).
In Robert v. Tesson, the Sixth
Circuit revisited the issue of habitual residence in a more complex context,
addressing how to determine habitual residence “when a child has alternated
residences between two or more nations.” 507 F.3d at 992. Concerned
with the need for emotional and social stability in a child’s life, the Sixth
Circuit adopted an “acclimatization standard.” Under this now well-known
standard, “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.’” Id. (quoting Feder v.
Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) ). The
Sixth Circuit has not fitted the terms “acclimatization” or “settled purpose”
with a tailored definition because every inquiry into habitual residence is a
pliant, fact-specific analysis. See id.
at 990 (stating that an analysis of a child’s habitual residence is not
a formulaic one and requires courts to “look closely at ‘[t]he facts and
circumstances of each case’ ” ; Friedrich,
983 F.2d at 1402 (“Every family dispute has its own unique set
of facts.”).
Under this fact-specific
inquiry, various aspects of a child’s life may be pertinent to reaching a
decision as to whether a child has become acclimated to and settled in a
particular country. They include the child’s academic activities, social
engagements, participation in sports programs and excursions, any personal
belongings in the child’s possession when the child alternated residences, the
child’s own stated desire, and any other relevant circumstances or meaningful
connections with people or places. Robert,
507 F.3d at 996; see Jenkins,
569 F.3d at 556 (“[A]ll [of these things] point to the child
being acclimatized.” But all of these aspects surrounding a child’s life in a
new country, depending on the time of their occurrence, are not necessarily
proper for consideration in an analysis under the acclimatization standard.
A lynchpin of any inquiry under this
standard is a determination of the time of the wrongful removal—or in this
case, the time of the wrongful retention—because it lays the parameters for the
Court’s analysis. See Robert,
507 F.3d at 993 (“[A] child’s habitual residence is the
country where, at the time of their removal, the child has been present
long enough to allow acclimatization[.]”; see also Panteleris v.
Panteleris, 601 Fed.Appx. 345, 349 (6th Cir. 2015) (“[O]ur
court’s precedent instructs courts to look back in time from the period of
wrongful retention, not forward.”); Friedrich,
983 F.2d at 1401 (“[T]he court must focus on the child, not the
parents, and examine past experience, not future intentions.”). In other words,
the date of the children’s retention in Chattanooga operates as an expiration
point, which means that the Court, when determining the children’s habitual
residence, has to limit its review to the social and familial aspects of the
children’s lives that developed before that point and not beyond it.
Mr. Miller contended that Mrs. Miller
began wrongfully retaining the children in Chattanooga on November 17, 2017,
because on this date he expressed a desire to have the children return to
Canada with him and Mrs. Miller expressed her desire for them to remain in
Chattanooga with her. All the evidence led the Court to only one possible
conclusion: the first time that Mr. Miller expressed anything weightier than
tacit grumblings about the children’s presence in Chattanooga was when he
pursued their return to Canada on March 27, 2018, by filing his application
with the Saskatchewan Central Authority. And on this date—the same date when
Mrs. Miller filed for divorce—Mrs. Miller had also announced her unequivocal
intention to retain the children in Chattanooga through state custody
proceedings.
Having determined the date of the
children’s retention, the Court—when it looked backward from that date—had no
doubt that the children were present in Chattanooga long enough to become
acclimated and settled. With the exception of C.J.M., who was too young, they were
enrolled in Chattanooga’s school system, and J.M.M. became a member of the
Science Olympiad Club and attended a playground-renovation project meeting. See
Ahmed,
867 F.3d at 687 (“ ‘[A]cademic activities’ are ‘highly
suggestive of acclimatization[.]’ ” They were doing well in school and showed
no behavioral problems. See Jenkins,
569 F.3d at 556 (holding that a child was acclimated to his
new country partly because he “was attending preschool ... and was, by all
first-person accounts, doing well in that environment”). They also
had family in the area and interacted with them.
The district court found that Mr.
Miller failed to establish by a preponderance of the evidence that Canada was
the children’s habitual residence at the time of their retention in
Chattanooga—whether the Court views the date of retention as March 27, 2018, or
November 17, 2017. Their retention in Chattanooga was therefore not “wrongful”
as the Hague Convention defines the term.
Flores v Alvardo, 2018 WL 3715753 (W.D. North Carolina, 2018) [El Salvador] [Habitual Residence] [Petition granted]
In Flores v Alvardo, 2018 WL 3715753 (W.D.
North Carolina, 2018) the district court found that Petitioner established by
preponderance of the evidence a prima facie case warranting the return
of V.S.G.M., a minor to El Salvador. Respondent failed to establish by clear
and convincing evidence an affirmative defense proving a grave risk of harm to
V.S.G.M.
Petitioner and Respondent married in
El Salvador in December of 2012. In 2013, Respondent gave birth to a child in
San Salvador, El Salvador. As Petitioner tells it, he lived with Respondent and
Child in a familial residence in El Salvador until Respondent left with the
Child in January of 2017. When Respondent left, she originally told Petitioner
that she and the Child were going to stay with her aunts for a week in La
Union, El Salvador. The truth, however, was that Respondent took the Child to
the United States after disconnecting her cell phone. Petitioner found out Respondent’s location
after receiving a video showing her crossing the United States border with the
Child. Petitioner promptly filed an abduction report to the local authorities.
Petitioner and Respondent remain married today and no court in either El
Salvador or the United States has entered an order regarding custody.
The Child was removed from El Salvador to the United States on or
about on or about January 8, 2017. The Petitioner filed the petition on August
25, 2017, which is within one year of the Child’s removal from El Salvador. At
the hearing, the parties also stipulated that the Minor’s habitual residence is
in El Salvador.
The Court found that Petitioner succeeded in establishing
his prima facie case by a preponderance of the evidence. It also found
that Respondent failed to prove an affirmative defense under the Convention’s
grave risk exception or failure-to-exercise-custody exception. Respondent
presented no other evidence besides her own testimony and what allegations she
posited were more geared to the best interest of the Child rather than the
relevant query before the Court.
The Court rejected
Respondents Article 13(a) defense, Failure to Exercise Custody Rights. Respondent’s
argument was that no custody order granted Petitioner custody rights over the
Child. However, Petitioner successfully refuted this argument. Under El
Salvador law, the parents of a child share custody jointly unless a custody
order finds otherwise. Family Code, arts. 206, 207. Respondent admitted
that no custody order exists that altered the default joint custody rule. As
such, Respondent’s argument cut against the very assertion she attempted to
make.
Respondent also argued that returning
the Child to El Salvador constituted a grave risk of physical or psychological
harm. Respondent alleged that Petitioner habitually smoked marijuana and drank
heavily around the Child. At one point, Respondent claimed that the Child was
caught with a bag of marijuana in his mouth. Respondent also claimed that
Petitioner endangered the Child by drinking and driving with him in the car. At
least once, Respondent stated that the Child was in the car when Petitioner was
involved in a minor car accident. Finally, Respondent claimed that Petitioner
would argue with her and began kicking her out of the house. Respondent states that Petitioner would
“violently” remove her from the hoes when she refused to go without her son.
The
district Court found Respondent’s claims general and unsubstantiated.
Respondent provided no other evidence besides her word, which the Court found
less than credible. While Respondent stated that neighbors and a nanny
witnessed the violence Petitioner subjected her to, she presented none of these
parties as witnesses during the hearing. Respondent admitted that Petitioner
showed no physical violence toward the Child.
The Court was faced with Respondent’s
testimony of drug and alcohol use against Petitioner’s testimony of a happy
family that was abruptly separated by Respondent’s wrongful removal of the
Child. Respondent faced a higher evidentiary standard than Petitioner and quite
simply failed to produce sufficient evidence to corroborate her claims.
Asumadu v Baffoe, 2018 WL 3957696 (D. Arizona, 2018)[Canada] [Habitual residence] [Petition granted in part and denied in part]
In Asumadu v Baffoe, 2018 WL 3957696 (D. Arizona, 2018) the
district court granted in part and denied in part Asumadu’s
Petition for Return of Children to Canada. Based on the Court’s finding that
A.K.A.’s habitual residence was the United States, Asumadu
did not make the showing required under the Hague Convention for a mandatory
return of A.K.A. to Canada. However, based
on the Court’s finding that K.A.A.’s habitual residence was Canada and that
Baffoe had not established by the requisite levels of proof that any of the
narrow exceptions apply, Asumadu made the showing required for a mandatory
return of K.A.A. to Canada.
Asumadu and Baffoe were both born in Ghana. Asumadu
immigrated to Canada in 1995 and was a Canadian citizen. Baffoe immigrated to
the United States in 2004 and was a United States citizen. In 2005, the couple
began a long-distance relationship. Although the couple lived apart for the
majority of their relationship, Baffoe periodically traveled to Canada to visit
Asumadu and visa-versa. In September 2016, Baffoe relocated to Canada, where
she lived with Asumadu until returning to the United States in January 2018. Asumadu
and Baffoe had two children together. Their son, K.A.A., was born on February
6, 2008, and their daughter, A.K.A., was born on July 20, 2011. Both children
were born in the United States.
K.A.A. lived in the United States with Baffoe until January
2010, when he moved to Canada to live with Asumadu. K.A.A. lived there since January 2010. Baffoe
contended that between 2010 and 2015 she made three unsuccessful trips to
Canada to retrieve K.A.A. and return him to the United States. Baffoe testified
that her efforts were thwarted by her fears of violent and physical retribution
by Asumadu. Baffoe failed to take any legal action to have K.A.A. returned,
testifying that doing so would be contrary to Ghanan custom and cultural norms.
According to Baffoe, consistent with these cultural norms, she sought
assistance from Asumadu’s parents and the elders of their village in Ghana. She
was instructed to be patient.
A.K.A., always lived in the United States with Baffoe. In
2016, Baffoe was in contact with Asumadu’s father, who advised her that Asumadu
had changed and promised that if she joined Asumadu in Canada he would not
mistreat her. In September 2016, Baffoe and A.K.A. made the trip to Canada.
According to Baffoe, her plan was to give Asumadu a chance to prove that he
would not be abusive. If he behaved, Baffoe intended to stay; if not, she
intended to return to the United States with both children. Baffoe claimed
that, upon her arrival in Canada, she immediately discovered that K.A.A. had
suffered an untreated serious head injury. In support, she offered a picture
K.A.A.’s head showing a small scarred area.
Baffoe, Asumadu, and their two children resided together in
Canada from September 2016 until January 2018. During that period, Baffoe
testified that there were three serious incidents of domestic disturbance
arising out of seemingly minor disagreements. In January 2018, while Asumadu
was at work, Baffoe left Canada for the United States with both children. She
did not tell Asumadu she was leaving or where she was going. After Asumadu
located Baffoe in Arizona, he filed a petition for return of his two minor
children, K.A.A. and A.K.A., to Canada.
The
district court found that Asumadu had not proven by a preponderance of the
evidence that the parties had a shared intent for A.K.A. to habitually reside
in Canada. After A.K.A. was born in July 2011, Baffoe and A.K.A. lived together
in the United States until November 2015, when they visited Petitioner for ten
to eleven weeks. Baffoe and A.K.A. made the 2015 visit and returned without
abandoning their residence in the United States. The two made another lengthy
trip to Canada in September 2016 on a trial basis. The Court credited Baffoe’s
testimony that it was not her intent to make Canada her and A.K.A.’s permanent
home unless and until she was convinced that Asumadu no longer would be
abusive. Shortly after living with Asumadu during this trip, Baffoe concluded
that he had not changed and began planning her return to the United States.
Although she lived in Canada for more than a year, there was never a shared
intent for A.K.A. to live anywhere other than with Baffoe. As such, A.K.A.’s
habitual residence remained the United States. Because Asumadu had not proven
by a preponderance of the evidence that A.K.A.’s habitual residence was Canada,
his petition was denied as to this child. See Papakosmas v.
Papakosmas, 483 F.3d 617, 621 (9th Cir. 2007).
On the other had the court found that Asumadu had proven,
that the parties had a shared intent for K.A.A. to habitually reside in Canada.
For example, in January 2010, Asumadu travelled to the United States and moved
K.A.A. to Canada. K.A.A. lived in Canada with Asumadu for eight years until he
was removed by Baffoe in 2018. Although Baffoe contended Asumadu moved K.A.A.
to Canada without her consent, the evidence did not support her contention. For
instance, Baffoe signed an authorization for Asumadu to receive the Canadian
tax benefit because K.A.A. lived with him in Canada. Baffoe also visited Canada
multiple times after K.A.A. moved there, but until 2018 always returned to the
United States without him. Nor did she inform law enforcement or file a
petition under the Hague Convention seeking return of K.A.A. to the United
States. Moreno v. Zank, 895 F.3d 917, 924-925 (6th Cir. 2018) (“[I]f
Convention procedures are not fully pursued when a child is first abducted, it
makes little sense to categorically permit later self-help abduction in the
other direction, after the child has been acclimatized in the second
country.”). Instead, Baffoe first raised her alleged lack of consent in the
context of this proceeding, eight years after K.A.A. moved to Canada. The Court
therefore found that the parties agreed in 2010 for K.A.A. to live in Canada
with Asumadu and that his habitual residence is Canada.
Baffoe
raised the grave risk exception, which provides that the Court “is not bound to
order the return of the child if ... there is a grave risk that his or her
return would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation.” Id. at 13(b), 19 I.L.M. at
1502. The party raising this exception must prove by clear and convincing
evidence that returning the child to his habitual residence would expose him to
physical or psychological harm or otherwise place him in an intolerable
situation. Gonzalez, 194 F. Supp. 3d at 901. Baffoe
claimed that Asumadu’s threats and acts of violence toward her committed in the
presence of the children demonstrate that the children would be exposed to a
grave risk of physical or psychological harm. Despite the lack of corroborative evidence,
the Court found he description of events provided by Baffoe was consistent with
her having been the victim of some form of domestic violence. It was difficult
to determine the full nature of the violence, but the Court found Asumadu
likely struck Baffoe on more than one occasion. The Court, did not find the
allegation that Asumadu put a knife to Baffoe’s throat credible. Nevertheless,
physical abuse or threats towards a spouse are not the same as physical abuse
or threats towards a child. See Nunez
Escudero v. Tice-Menley, 58 F.3d 374, 375-78 (8th Cir. 1995);
Tabacchi v.
Harrison, No. 99-C-4130, 2000 WL 190576, at *12-16 (N.D. Ill.
Feb. 10, 2000) (“Although [Petitioner’s abusive] behavior toward
his wife is unacceptable, to qualify as a grave risk of harm under the
convention, the risk must be to the child.”). Given the narrowness of this
exception, the Court could not conclude that Asumadu’s acts of violence against
Baffoe satisfied the grave risk requirement under the Convention. It held that Baffoe had not proven by clear and
convincing evidence that there was a grave risk that the return of K.A.A. would
expose him to physical or psychological harm or otherwise place him in an
intolerable situation.
Baffoe
argued that the consent or acquiescence exception applies. The Court found that
the parties’ actions surrounding the removal were not consistent with a
consensual removal of the children. Based on this evidence, Baffoe had not
shown by a preponderance of the evidence that Asumadu consented to K.A.A.’s
removal to the United States from Canada.
Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018) [Ecuador] [Habitual Residence] [Petition granted]
In Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018)
the district court granted Petitioner Ronald Javier Velez Saltos’ petition for
the return of the seven-year-old minor child, R.C., to Ecuador.
Petitioner was the father of R.C., a citizen of Ecuador,
and was living in Ecuador. Respondent was R.C.’s mother, a citizen of Ecuador,
and residing in New Jersey with her new husband, Dalton Mejia, who was an
American citizen. Petitioner and Respondent were married in Ecuador on February
13, 2010, and had R.C. on July 7, 2011. R.C. was born in Ecuador and lived
there for the first five years of her life. The parties separated in February
2012, and later divorced on December 7, 2016.
On
November 23, 2012, the parties entered into a custody agreement, whereby R.C.
would live with Respondent, and Petitioner would have visitation rights from
5:30 p.m. to 9:30 p.m. on weekdays, and noon to 5:00 p.m. on the last Sunday of
each month. An Ecuadorian Court approved the custody agreement the following
day. (Petitioner testified that, because R.C. was very young at the time of the
custody agreement, the Ecuadorian Court thought it would be best for her to be
in the primary care of her mother. Petitioner spent time with R.C. under the
terms of the agreement, which included seeing R.C. at school and for birthdays
and holidays, as well as taking R.C. to visit his three other children from a
prior marriage. Petitioner was also required to pay child support to R.C. and
his other three children in the amount of $800 per month. Petitioner’s child
support payments for R.C. were made through a judicial process pursuant to a
court order. Under Ecuadorian law, Petitioner was prohibited from leaving the
country because he was paying child support through a court order. At some point after the separation, Petitioner
declared bankruptcy and, based on financial status and inability to make the
child support payments, the amount that Petitioner paid in child support was
reduced. Because
Petitioner fell behind on his payments, Respondent alleges that Petitioner owed
about $5,000.00 in child support arrears. Respondent also claims that
Petitioner cancelled R.C.’s medical insurance, which Petitioner clarified was
automatically cancelled after he declared bankruptcy, and that the child
support payments were supposed to cover health insurance.
In
early April 2017, Respondent informed Petitioner that she wanted to take R.C.
on vacation to Disney World in Orlando, Florida from April 23, 2017 to May 1,
2017, and wanted Petitioner to authorize the travel. According to Petitioner,
he expressed concerns that, if something were to happen to R.C., he would be
unable to travel to the United States because the court-mandated child support
payments prevented him from travelling. Petitioner would only agree to
authorize Respondent and R.C.’s trip if Respondent removed her claim with the
court that he owed $5,000.00 in child support payments, and agree to let
Petitioner pay child support directly to Respondent instead of through the
court. Respondent indicated that she reluctantly agreed, and the parties
completed the necessary exit permit for R.C. to travel from April 23, 2017 to
May 1, 2017. Before the trip to Orlando, Petitioner paid a portion of R.C.’s
school registration fees, and Respondent enrolled R.C. for the upcoming school
year in Ecuador.
On
April 23, 2017, Respondent and R.C. traveled to the United States from Ecuador.
On April 30, 2017, Petitioner received an anonymous phone call informing him
that Respondent intended on remaining in the United States with R.C. On May 1, 2017,
Respondent called Petitioner and explained that her then-boyfriend, Dalton
Mejia, proposed, and that Respondent will be staying in the United States with
R.C. permanently, in order to give R.C. more opportunities for her future. At
no time prior to this phone call did Respondent tell Petitioner that she
intended to get married in the United States or that she intended on taking
R.C. to New Jersey. Respondent and R.C. then traveled from Orlando, Florida to
Union, New Jersey, where they still reside today. R.C. was five at the time.
R.C. completed first grade in New Jersey and was enrolled at Hannah Caldwell
School, where she has been excelling both academically and socially.
Since
May 1, 2017, Petitioner was unable to contact R.C. Petitioner filed this
emergency petition with the Court on May 1, 2018. Service of the emergency
petition was made on Respondent, and the Court issued an Order to Show Cause
why R.C. should not be returned to Ecuador.
The
district court found that the parties agreed that R.C. would travel to the
United States from April 21, 2017 until May 1, 2017. Petitioner testified that
he expected R.C. to return to Ecuador on May 1, 2017. Therefore, the date the
allegedly wrongful retention occurred was May 1, 2017. The parties did not
dispute that R.C.’s habitual residence prior to her allegedly wrongful
retention was Ecuador, which was bolstered by the fact that R.C.’s family,
school, and entire life was in Ecuador prior to her trip to Orlando, Florida.
Therefore, it found that R.C. was a habitual resident of Ecuador before her
allegedly wrongful retention in the United States.
According
to Petitioner, Respondent’s wrongful retention violated his custody rights
under Ecuadorian law, which hold that both parents have joint custody unless
there is a court order to the contrary. There was no court order that
terminated Petitioner’s joint custody rights. Additionally, Petitioner asserted
that R.C.’s wrongful retention violated his rights under the custody agreement
entered into by the parties on November 23, 2012. Respondent conceded that
Petitioner had joint custody based on this custody agreement. Petitioner was
unable to exercise these rights or otherwise contact R.C. since May 1, 2017,
when R.C. was retained in the United States without his consent. Therefore,
Petitioner had shown by a preponderance of the evidence that his custody rights
were breached by R.C.’s allegedly wrongful retention in the United States. Based on the facts, it was clear to the Court
that Petitioner was sufficiently exercising his custody rights at the time of
R.C.’s retention in the United States. Therefore, Petitioner made out a prima
facie case that Respondent wrongfully retained R.C. in the United States in
violation of the Hague Convention.
Respondent
asserted several of the affirmative defenses recognized by the Hague
Convention. These affirmative defenses included: (1) that R.C. had been here
for at least a year and was well settled in her home and school in New Jersey,
where she was excelling socially and academically; (2) that R.C. was of
sufficient maturity and has articulated her desire to stay in the United States
and did not want to return to Ecuador; (3) that Petitioner was not exercising
his custody rights because he did not visit or care for R.C. as articulated in
the custody agreement; and (4) that R.C. would be exposed to a “grave risk of
harm” if she is returned to Ecuador, based on (a) the possible abuse she may
face under Petitioner’s care and (b) the human rights concerns associated with
Ecuador, including the sexual exploitation of minors. The Court rejected each
affirmative defense.
The
Court found Petitioner filed this emergency petition on May 1, 2018. Petitioner
argued in his brief that the wrongful retention began on May 2, 2018, and that
his emergency petition was therefore filed less than a year later. However, the
date of R.C.’s wrongful retention was May 1, 2017. Therefore, R.C.’s wrongful
retention fells into the year or more required for Respondent to invoke Article
12’s “well-settled” exception. Nevertheless, Respondent had not shown by a
preponderance of the evidence that R.C. is “well-settled” within the meaning of
Article 12. Upon finding that a year or more has passed, the Court must weigh
several factors “informative of the child’s connection with his or her
environment,” including the age of the child, the stability of the child’s
residence in the new environment, whether the child attends school or day care
consistently, whether the child attends church regularly, the stability of the
mother’s employment or other means of support, whether the child has friends
and relatives in the area, and to what extent the child has maintained any ties
to the country of habitual residence. Silvestri v. Oliva, 403 F. Supp.
2d 378, 387–88 (D.N.J. 2005).
While
several of these factors weighed in favor of Respondent there were very serious
concerns that weighed against applying the “well-settled” exception to this
case. First, the majority of R.C.’s family lived in Ecuador, including her
grandparents who R.C. remained in contact with. Second, R.C. wa at the very
young age of seven, and her testimony is to be weighed accordingly.
Furthermore, R.C.’s desire to remain in the United States was in part based on
her living with, and under the influence of, Respondent. Notably, when R.C. was
asked what she would want to do if her mother returned to Ecuador, R.C.
responded, “I will go back to Ecuador because wherever [Respondent] is, I am. I
am with her because we are a team.” This exchange, along with others, indicated
to the Court that R.C.’s preference for New Jersey had less to do with her life
in the United States, and more to do with being close to her mother. Last, and
perhaps most important, Respondent and R.C. currently had an uncertain
immigration status. Both Respondent and R.C. came to this country on a travel
visa to Orlando, Florida, which was for a limited period of eight days. Respondent’s Husband, Dalton Mejia, is an
American citizen and was currently filing relative petitions for Respondent and
R.C. to remain in the United States. However, the Court wasn’t convinced that
Respondent and R.C.’s ability to remain in this country is certain, as they were
vulnerable to deportation in the event that their relative petitions are
denied. This fact, in conjunction with the other factors weighing against
Respondent, outweighed those factors supporting the application of the
“well-settled” exception. Therefore, the Court finds that Article 12’s
“well-settled” exception did not apply to this case.
For
similar reasons as those expressed above, the Court found that Article 13’s
second-to-last paragraph, also known as the “wishes of the child” exception,
does not apply to this case either. R.C. testified about how much she
likes New Jersey, that she does not miss Ecuador, and that she does not want to
return to Ecuador. The most specific
example R.C. gave as to why she does not want to return to Ecuador is that her
half-sisters will tease her and pull her hair when they visit her. R.C. also
testified that she wants to remain in the United States because she prefers her
school here. However, much like the minor child in Tsai-Yi Yang, 499
F.3d at 279, R.C.’s testimony is more focused on why she prefers New Jersey,
rather than why she specifically objects to returning to Ecuador.
The
Court also found that Respondent had not set forth sufficient facts to support
the application of the exception articulated in Article 13(a) of the Hague
Convention.
A
thorough review of the record in this case and Respondent’s arguments compelled
the Court to conclude that there was no clear and convincing evidence that R.C.
would suffer a grave risk of physical or psychological harm should she be
returned to Ecuador. First, R.C. was not at risk of serious abuse or neglect if
she returned to Ecuador. Respondent claimed that she had always been R.C.’s
primary caretaker and to remove R.C. to Petitioner, whom she had not formed the
same type of bond with, would cause R.C. great distress. R.C. also testified
that she is afraid to return to Ecuador because she would no longer live with
her mother. The distress caused from separating a child from their parent with
whom they have a strong bond is generally not considered a grave psychological
harm in cases brought under the Hague Convention. See, e.g., Carranco v.
Munoz, Civil Action No. 12-7299, 2013 WL 150760, at *9
(D.N.J. Jan. 14, 2013) The Court rejected Respondent’s arguments regarding R.C.’s risk
of serious abuse or neglect in Ecuador. The
Court also found that returning R.C. to Ecuador would not result in any risk of
“imminent danger.” Respondent argues that the conditions in Ecuador make the
country “not a safe place for a child.” For support, Respondent pointed to a
2017 Human Rights Report of Ecuador which reported high amounts of sexual abuse
and exploitation of children. While this
report wass disturbing, it was not relevant to the Court’s determination, as it
did not directly affect R.C. See Baxter, 423 F.3d at 373. Respondent
conceded that “there is no direct evidence” to suggest that R.C. was or will be
exposed to sexual abuse or exploitation in her hometown in Ecuador.
Furthermore, the unfortunate fact that sexual abuse or exploitation can occur
in Ecuador, like it can occur in almost any country, does not rise to the level
of imminent danger articulated by the “grave risk of harm,” i.e., a war
zone or the outbreak of a deadly virus. See Baxter, 423 F.3d at 373.
Respondent also argues that the school system in the United States offers more
opportunity than that of Ecuador. However, the loss of economic or educational
opportunities alone does not rise to the level of “a grave risk of harm.” See
Baxter, 423 F.3d at 373 (quoting Blondin v. Dubois, 238 F.3d 153,
162 (2d Cir.2001)). Therefore, the Court rejects both of Respondent’s arguments
regarding R.C.’s risk of “imminent danger,” and found that Respondent cannot
meet Article 13(b)’s “grave risk of harm” requirements as to apply the
exception to this case.
Finally, even if any of
the exceptions articulated above could be met, the Court would still act in its
discretion to remove R.C., as almost all of Respondent’s arguments were focused
on custody and the best interest of the child.
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