Djeric v Dejeric, 2019 WL 1046893 ( S.D. Ohio, 2019)[Serbia][Habitual residence][Petition granted]

[Serbia][Habitual residence][Petition granted]

       In Djeric v Dejeric, 2019 WL 1046893 ( S.D. Ohio, 2019) after an evidentiary hearing, at which the Court heard testimony from Mr. Djeric, who was present, and from Ms. Djeric via video conference from Serbia. the Court granted Ms. Djeric’s Petition for Return to Serbia.

          Mr. and Ms. Djeric were married in Serbia and had a son, M.D. In 2013, Mr. and Ms. Djeric divorced.  On September 26, 2013, the First Basic Court in Belgrade, Serbia, granted Ms. Djeric “sole parental right” over M.D., including the rights to “care, upbringing, and custody. Thereafter, Mr. Djeric moved to the United States. In August of 2017, Ms. Djeric allowed M.D. to attend school in Columbus, Ohio, subject to certain terms, which Ms. Djeric laid out in a letter, stating: “[D.M. can] continue his education in Worthingway Middle School in Columbus.... During his education in the United States, [M.D.] will live with [Mr. Djeric], who will be taking care of him, and consult with me about everything.”

          Unbeknownst to Ms. Djeric, Mr. Djeric filed actions for custody in the Franklin County Court of Common Pleas. On March 17, 2018, Ms. Djeric learned about the Second Franklin Action and began writing letters to the court, stating “I strongly oppose to the plan that [ ] full custody be given to [Mr. Djeric]. In another letter, Ms. Djeric wrote, “I did not and will not sign any document about giving [ ] custody to anyone, in this case, to [M.D.]. I will never give up [ ] my own child.”. And in another, Ms. Djeric stated, “This is already the third letter I am sending you. I don’t know what’s going on in America, about this case. I’m completely confused by what [Mr. Djeric] is trying through your court.... I’m scared too, because I just realized it was an attempt to take my child away, for good.” Ms. Djeric also directly communicated with Mr. Djeric, texting him “... I cannot sign the documents where you are asking to disown my child.... I hereby inform you that the final deadline has been set when [M.D.] has to return to Serbia, which is on May 25, 2018.” M.D. did not return to Serbia after the school year ended on May 25, 2018

          The District Court held that the dispositive inquiry in this case was the country of the child’s habitual residence. See Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018) (en banc). The court noted that there are five “principles” to consider when determining 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 the 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. Panteleris v. Panteleris, 601 F. Appx. 345, 349 (6th Cir. 2015). Therefore, in wrongful retention cases, courts look to the last date upon which it is undisputed that the child was in the new country with both parents’ consent. Karkkainen v. Kovalchuk, 445 F.3d 280, 290 (3d Cir. 2006). Specifically, courts look to the date when the non-abducting parent was truly on notice that the abducting parent was not going to return the child. Blanc v. Morgan, 721 F. Supp. 2d 749, 762 (W.D. Term. 2010).

          Ms. Djeric offered a letter she mailed to M.D.’s school, Mr. Djeric’s attorney in Serbia, and the Franklin County Court of Common Pleas. That letter stated: I, Ivana Djeric, Mother of M.D., ... hereby give my consent and agree that he can stay for the purpose of education in the United States of America, until May 25, 2018. Ms. Djeric also offered text messages, dated May 9th, 2018, which require Mr. Djeric to return M.D. to Serbia by May 25, 2018. Based on this evidence, the Court concluded that Mr. Djeric wrongfully retained M.D. on May 25, 2018, the date Mr. Djeric kept M.D. from returning to Serbia, thereby defying the limited consent of Ms. Djeric—M.D.’s sole custodian. This was also the date Ms. Djeric (the non-abducting parent) was on notice that Mr. Djeric (the abducting parent) was not returning M.D. to Serbia. See Blanc, 721 F. Supp. 2d at 762. To determine M.D.’s habitual residence, the Court limited the record to evidence related to M.D.’s experiences prior to May 25, 2018.

          The court held that only the acclimatization standard applied. Under this approach, the question is “whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Ahmed, 867 F.3d at 687. Some questions relevant to determining if a child has acclimatized to a particular country include: “whether the child participated in academic activities, social engagement, sports programs and excursions, and whether the child formed meaningful connections with the country’s people and places.” Taglieri, 907 F.3d at 408 (citing Ahmed, 867 F.3d at 687).

          The parties offered evidence that M.D. had engaged in productive activities during his time in both Serbia and the United States. Over the first thirteen years of his life in Serbia, M.D. achieved academic and athletic success. M.D. enjoyed playing soccer, basketball, and swimming at a local sports club in Belgrade. And, even while in the United States, M.D. has remained in touch with his friends and family in Serbia and he spoke to Ms. Djeric on the phone every day, sometimes for several hours at a time. During his first eight months in the United States, M.D. established close ties with his family—especially his grandmother and aunt. Mr. Djeric testified that M.D. had become friends with several classmates and neighbors. M.D.’s principal, Nathan Kellenberger, testified that M.D. and succeeded in school and had impressed teachers with his leadership skills and kindness to others. Mr. Kellenberger also explained that during M.D.’s seventh grade schoolyear, he never missed class and was a top academic student.²

          Although the record illustrated that M.D. participated in academic activities, social engagements, and sports programs, and formed meaningful connections with others during his brief time in the United States, this evidence did not overcome the significant ties M.D. still held to Serbia. See Jenkins v. Jenkins, 659 F.3d 549, 562 (6th Cir. 2009) (“sufficiency of acclimatization to a new place will vary based on the strength of a child’s relationship with his or her prior habitual residence.”) Since there was no dispute that M.D.’s prior habitual residence was Serbia, the evidence must establish a change in habitual residence to the United States.. Mr. Djeric did not carry that burden. M.D. lived in Serbia for thirteen years and, by all accounts, thrived academically, athletically, and socially. It was no surprise then that M.D. transitioned so well during his stay in the United States. Still, the Court was not convinced that M.D.’s success in the United States over a brief period transcends the meaningful connections that M.D. established over his thirteen years in Serbia. Therefore, the Court found that Serbia was M.D.’s habitual residence.

           Mr. Djeric conceded that Ms. Djeric had established the last two elements of her prima facie case. First, Mr. Djeric acknowledged that the First Basic Court of Belgrade granted Ms. Djeric “sole custody” over M.D. Second, Mr. Djeric conceded that his refusal to return M.D. to Serbia violated the First Basic Court’s order, which granted Ms. Djeric the rights to “care, upbringing, and custody” of M.D. Therefore, Ms. Djeric established her prima facie case for wrongful retention under the Hague Convention and ICARA.

          Mr. Djeric raised one affirmative defense: that Ms. Djeric had consented to or subsequently acquiesced in Mr. Djeric’s retention of M.D. See 22 U.S.C. § 9003(e)(2)(B). Ms. Djeric contended that this defense does not apply because Mr. Djeric failed to meet the requisite standard, which is narrowly construed and has a high evidentiary bar. The affirmative defense of consent or acquiescence by the petitioner “requires either (1) a formal act or statement, such as testimony in a judicial proceeding, (2) a written renunciation of rights, or (3) a consistent attitude of acquiescence over a significant period of time.” Flores-Aldape v. Kamash, 202 F. Supp. 3d 793, 804 (N.D. Ohio 2016) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996) (“Friedrich II”) ). Mr. Djeric argued that Ms. Djeric’s letter, dated August 11, 2017, amounted to a written renunciation of custody rights over M.D. This argument was rejected. In the letter dated August 11, 2017, Ms. Djeric stated “[d]uring his education in the United States, [M.D.] will live with his father, [Mr. Djeric], who will be taking care of him, and consult with me about everything.” Ms. Djeric’s declaration that Mr. Djeric “will be taking care” of M.D. while he continues his education in the United States is consistent with her custodial powers under the Serbian Divorce Decree. Moreover, Ms. Djeric had consistently refused to renounce—or even reduce—her sole parental rights over M.D. Therefore, the Court concluded that the Ms. Djeric did not renounce her rights with the August 11, 2017 letter.  Additionally, nothing in the record illustrated that Ms. Djeric consented to or acquiesced in Mr. Djeric’s wrongful retention of M.D.

          Mr. Djeric pointed out that Article 13 of the Hague Convention provides that a district court “may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” During an in camera discussion with M.D., the Court learned that M.D. enjoyed the United States and prefered to stay here. While M.D.’s maturity and demeanor were undeniably impressive, the Court held that it would not exercise its discretionary power to refuse ordering his return because M.D.’s stated preference did not amount to a “particularized objection.” See Neumann v. Neumann, 310 F. Supp. 3d 823, 835 (E.D. Mich. 2018) (“courts have required that children subject to the Convention set forth particularized reasons why they object to return, as opposed to a generalized opposition”). As a result, none of the affirmative defenses apply.

Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019)[Mexico] [Motion for Costs][Clearly inappropriate]

         In Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019) on December 19, 2018, the Court granted Petitioner’s Petition and ordered the immediate return of A.V., a twelve-year-old child (the “Child”), to his habitual residence of Hidalgo, Mexico. Following the issuance of the Order, Petitioner filed a Motion for Costs.

         The district court observed that Article 26 of the Hague Convention permits a court to award expenses to a prevailing party “where appropriate.” Similarly, ICARA allows for an award of costs, stating in relevant part: Any court ordering the return of a child pursuant to an action brought under [ICARA] 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. 22 U.S.C. § 9007(b)(3).

         The district court pointed out that although the Fourth Circuit has not spoken on the issue, other courts have interpreted this statutory provision to give district courts “broad discretion” to determine when an award of costs is appropriate. See, e.g., West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013) (noting the “broad discretion” conferred by ICARA); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004) (”We also read the statute as giving the district court broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.”).

          The motion sought $13,521.97 in costs, including interpretation fees, translation expenses, and other related litigation expenses. The Court reviewed the records submitted by counsel and found these costs to be reasonable in light of the nature and complexity of this case. Nonetheless, the Court considered the totality of the circumstances in determining whether an award of costs is “clearly inappropriate.” Respondent was indisputably indigent and had a large family to support in the United States. In the event Respondent was even able to pay costs, it would be to the detriment of her other children. Furthermore, Respondent relied entirely on her partner’s finances, as she did not make any income. Additionally, the case presented a very close question. Finally, Petitioner’s counsel served in a pro bono capacity, and Petitioner had not personally incurred any costs. The law firms involved in this case participated in a pro bono capacity and received no remuneration for their work. Considering the unique circumstances of this case and financial conditions of the parties, the Court held that it would be “clearly inappropriate” to award Petitioner costs. See in re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Co. 2014) (”The Court finds that an award of filing fees and deposition costs is inappropriate in this [Hague Convention] matter, given the petitioner’s pro bono representation and respondent’s relatively low salary, total savings of slightly over $2,000, the fact that respondent spends 80% of her income on housing, and the fact that most of her other expenses relate to providing for [the child].”).

Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019)[Colombia] [Habitual Residence] [On remand]

          In Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019) on September 1, 2017, Mr. Calixto filed an action against Ms. Lesmes, M.A.Y.’s mother, for the return of five-year old M.A.Y., to Colombia. The Court referred the matter to a Magistrate Judge to hold an evidentiary hearing. Her Report and Recommendation reasoned: “Because the United States, not Colombia, is M.A.Y.’s habitual residence, Petitioner cannot establish a prima facie case of Respondent’s wrongful retention of M.A.Y.,” and therefore Mr. Calixto’s Verified Petition to Return the Child to Colombia should be denied. The District Court adopted the initial Report and Recommendation and denied Mr. Calixto’s Petition.

          On appeal the Eleventh Circuit remanded the case for further fact finding noting: “The critical question, as the district court correctly understood, is whether in November of 2016 M.A.Y. remained a habitual resident of Colombia or whether her habitual residence had changed to the United States.” According to the Eleventh Circuit, “If it is the former, Mr. Calixto established a prima facie case requiring M.A.Y.’s return to Colombia.”. However, the Eleventh Circuit explained that if M.A.Y.’s habitual residence changed to the United States, then “M.A.Y.’s retention was not wrongful under the Convention, and Mr. Calixto’s petition fails.”.

The Eleventh Circuit pointed out that the District Court “did not resolve the significant conflicts in the testimony, such as the status of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015, the reason for Mr. Calixto’s execution of the travel consent form, and the circumstances surrounding the travel of Ms. Lesmes and M.A.Y. to the United States.” Further, the Eleventh Circuit noted that the District Court failed to “address whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States.” The Eleventh Circuit highlighted the instances where Mr. Calixto and Ms. Lesmes offered differing accounts of critical facts and directed this Court to make further findings of fact to resolve the discrepancies. And, in an effort to prevent subsequent appeals, the Eleventh Circuit directed the District Court to address on remand whether the evidence provides either of the alternative means of establishing habitual residence as set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). (Doc. # 67 at 29). The Eleventh Circuit retained jurisdiction over the appeal in order to issue an expedited ruling. The District Court thereafter referred the matter to the Magistrate Judge for supplemental findings in accordance with the Eleventh Circuit’s directives.

          Thereafter, the Magistrate Judge held a status conference and asked the parties to brief the issues. The Magistrate Judge held oral argument after receiving the parties’ briefs.  On January 15, 2019, she issued her Supplemental Report and Recommendation.  The Magistrate Judge recommended that the Court find that “the travel consent form indicates Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he could not gain entry into the United States.” The Magistrate Judge explained: “Centrally, because Mr. Calixto and Ms. Lesmes were not a couple [in November of 2015, when he signed the travel consent form], Mr. Calixto’s belief that they would travel to the United States as a family is unsupported.”  The Magistrate Judge highlighted that Mr. Calixto made no reasonable efforts to gain permanent residency status in the United States.  Instead, he only applied for tourist visas, and such visas were denied.  The Magistrate Judge noted: “The evidence suggests his visa applications were denied because he lied on them.”  After making numerous factual findings and credibility determinations, the Magistrate Judge found that “Mr. Calixto shared an unconditional intent to change M.A.Y.’s habitual residence to the United States, regardless of his ability to enter the United States.” The Magistrate found that M.A.Y.’s habitual residence changed to the United States, and that the alternative means discussed in Ruiz, 392 F.3d at 1254, were not satisfied. The Magistrate Judge ultimately recommended that the Court “find that M.A.Y.’s habitual residence changed to the United States based on her parents’ shared, unconditional intent.”

          After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepted the factual findings and legal conclusions of the Magistrate Judge and the recommendation of the Magistrate Judge. The Court determined that it was appropriate to adopt the Supplemental Report and Recommendation. In so doing, the Court stated that it was aware of the Eleventh Circuit’s strong admonition: “The return remedy is the Convention’s central operating feature.” Fernandez v. Bailey, 909 F.3d 353, 363 (11th Cir. 2018)(citing Abbott v. Abbott, 560 U.S. 1, 9 (2010)). The Fernandez Court explains: “Based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence, return must be the default in order to lay venue for the ultimate custody determination in the child’s country of habitual residence rather than the country to which the child is abducted.” In Fernandez, it was undisputed that the abducted children were habitual residents of Panama. The petitioning father established a prima facie case under the Hague Convention for return of the children to Panama, but the Court determined that the respondent mother demonstrated that an exception applied. The Court’s analysis of the exception, regarding the children being well settled in the new country, was reversed. Here, rather than dealing with an exception to repatriation, the Court was called upon to determine whether Mr. Calixto had met his prima facie burden of demonstrating that M.A.Y. was a habitual resident of Colombia. This Court adopted all of the factual findings and credibility determinations of the Supplemental Report and Recommendation and found that M.A.Y.’s habitual residence changed to the United States based on Mr. Calixto’s unconditional intent, which he shared with Ms. Lesmes, and returned the matter to the Eleventh Circuit

Guevara v Soto, 2018 WL 7108069 (E.D. Tennessee, 2018)[Mexico] [Report and Recommendation of Magistrate Judge] [Enforcement remedies]

In Guevara v Soto, 2018 WL 7108069 (E.D. Tennessee, 2018) on April 15, 2016, the Chief District Judge granted the Verified Petition and directed that defendant is to return the [C]hild to Mexico, the country of the [C]hild’s habitual residence.” In the Memorandum Opinion, the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the [C]hild’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the Child’s return to Mexico, and the issue was referred to a Magistrate Judge.  After hearing from both parties, the Magistrate Judge ordered Respondent to transport the Child to La Luz, Michoacán, Mexico, by May 16, 2016. On May 23, 2016, Petitioner filed an Emergency Petition, stating that Respondent and Child did not arrive in La Luz, Mexico, as ordered. Respondent’s attorney acknowledged that the last contact that he had with Respondent was on May 3, 2016, when he explained the Court’s previous Order and options to appeal. Respondent’s attorney also stated that he has made numerous attempts to contact Respondent to no avail. Prior testimony from Petitioner, which was uncontested, established that Petitioner visited La Luz, Mexico, on several occasions on May 16, 2016, and thereafter, but could not locate the Child or Respondent. The Chief District Judge instructed the Clerk of Court to issue a Writ of Attachment, which ordered the United States Marshals Service to take possession of the Child. Approximately a year later, the United States Marshals Service filed a return, stating that Respondent could not be located. Now, Petitioner stated that NCMEC has received a tip as to the location of the Child. The tip indicated that the Child was located in the United States.

The Petitioner made a Motion for Writ of Body Attachment of Respondent and Minor Child and for a Warrant of Arrest for Respondent .The Report and Recommendation of the Magistrate Judge  found it appropriate in these circumstances to issue another writ of attachment pursuant to Federal Rule of Civil Procedure 70, and determined that it would  recommend such action. Rule 70 provides as follows: (a) Party’s Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done--at the disobedient party’s expense--by another person appointed by the court. When done, the act has the same effect as if done by the party. Respondent was supposed to transport the Child to Mexico pursuant to the Judgment in this case, and later, was specifically ordered to transport the Child to La Luz, Mexico, by May 16, 2016. Accordingly, the Report and Recommendation recommended that the Clerk of Court issue another writ of attachment that directs the United States Marshals Service to execute Judgment and attach the Child. Once the Child is in custody, the Report and Recommendation recommended that the Child be delivered to the Tennessee Department of Human Services (or similar agency in the state in which the Child is found) for temporary placement, after which said agency shall make the appropriate arrangements with the United States Central Authority for the Child’s return to Mexico or to Petitioner.

Petitioner also requested an arrest warrant commanding the pick-up of the Child and Respondent. For authority, Petitioner cited to 22 U.S.C. § 9004, which states as follows: In furtherance of the objectives of article 7(b) and other provisions of the Convention, and subject to the provisions of subsection (b) of this section, any court exercising jurisdiction of an action brought under section 9003(b) of this title may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition. The Report and Recommendation found that by its clear language, § 9004(a) only applies to actions taken “before” the petition is ruled on. Here, the Petition was granted on April 15, 2016, and Petitioner was simply seeking assistance in executing the final Judgment. He was not requesting assistance “before the final disposition of the petition,” and therefore, this statute does not apply under these circumstances. The cases that Petitioner relied on involved arrest warrants that were issued to bring the abducting parent before the court so that the petition could be appropriately litigated. See McCullough v. McCullough, 4 F. Supp. 2d 411, 416 (W.D. Pa. 1998) (directing the United States Marshal to serve respondent with a warrant of arrest for the children and copies of the pleadings and that the United States Marshal bring the children before the court); Marquez v. Castillo, No. 8:14-CV-2407-T-30TBM, 2014 WL 5782812, at *3 (M.D. Fla. Nov. 6, 2014) (finding the provisional remedy in the above statute appropriate and ordering respondent not to remove the child from the court’s jurisdiction pending a hearing on the petition). 

Petitioner also relied on Pesin v Rodriguez, 244 F.3d 1250 (11th Cir. 2001). In Pesin, however, the court did not issue an arrest warrant pursuant to § 9004. Instead, after the court granted the petition, petitioner informed the court that respondent failed to return the children as ordered to do so. The district court set a status conference and ordered the respondent and the children to attend, but they failed to attend.  The court then issued a show cause order as to why respondent should not be held in contempt of court and scheduled another hearing.  Again, neither the respondent, nor the children, attended the show cause hearing. Following the respondent’s failure to attend the second hearing, the district court found respondent in contempt for her multiple refusals to comply with the court’s orders, and the court entered a bench warrant for her arrest. As demonstrated in Pesin, a finding of contempt of court is appropriate when a party fails to abide by the Court’s orders. “When a court seeks to enforce its order or supervise its judgment, one weapon in its arsenal is contempt of court.” Elec. Workers’ Pension Trust Fund of Local Union # 58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) (citing NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987)). The Magistrate Judge’s role in contempt cases is to certify facts relevant to the issue of contempt to the District Judge. See 28 U.S.C. § 636(e)(6)(B); The Euclid Chemical Company v. Ware et. al., No. 1:11-cv-135, 2013 WL 6632436, at *1 (S.D. Ohio Dec. 17, 2013) (stating the same). Accordingly, the Magistrate Judge certified the facts and recommended that the District Judge issue a show cause order to Respondent to appear on a date and time certain to show cause why she should not be held in contempt of Court for the failure to abide by the Court’s Orders to return the Child to Mexico.

Leonard v Lentz, --- Fed.Appx. ----, 2019 WL 181185 (Mem) (8th Cir., 2019)[Turkey][Grave risk of harm][Petition denied]

         In Leonard v Lentz, --- Fed.Appx. ----, 2019 WL 181185 (Mem) (8^th Cir., 2019) Ozgur Leonard, a dual citizen of Turkey and the United States, claimed that Rachel Lentz, a United States citizen, had wrongfully removed the couple’s three minor children, I.Y.L., E.M.L., and S.M.L, to the United States, and he sought the return of the children to the Republic of Turkey. Lentz denied having taken any wrongful action. As an affirmative defense, she asserted, inter alia, that E.M.L., who had been born with End Stage Renal Disease and needed a kidney transplant, required a much more advanced treatment facility and medical team than Turkey could provide; and that returning the children to Turkey would create a grave risk that they would suffer some physical or psychological harm, or place them in an intolerable situation.

          The district court concluded that Leonard had established a prima facie case for wrongful removal.. The district court further determined, however, that Lentz had established the grave risk exception to removal, finding, as relevant, that the evidence, particularly testimony provided by E.M.L.’s doctors at the University of Iowa Health Care (UIHC), showed that ordering E.M.L. to be returned at that time would pose a grave risk to her physical health, and that E.M.L. would need to remain in close proximity to UIHC for the duration of her post-transplant recovery. Accordingly, the court denied Leonard’s request to return the children to Turkey. Just weeks after E.M.L. received a kidney transplant from Lentz, Leonard asked the court to reconsider its decision and, as relevant, to “order the return of the [c]hildren contingent on a future medical ‘release’ by [E.M.L’s nephrologist] stating [she was] satisfied that E.M.L’s further care [could] be provided in Turkey.” The district court found that the issue of whether E.M.L. could be returned to Turkey post-transplant was not ripe for consideration.

          The Eighth Circuit affirmed the judgement. It rejected Leonards argument that, inter alia, that the district court improperly denied his request to return the children to Turkey because the transplant had already occurred and because there was no evidence before the district court demonstrating that Turkish medical facilities were unable to provide adequate post-transplant care. It agreed that the issue was not ripe for consideration, as the record contained neither evidence that E.M.L. had reached the point in her recovery where her medical team was prepared to release her nor evidence establishing the point at which post-transplant return to Turkey would be safe for E.M.L. See Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (ripeness is reviewed de novo; “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all”).

Malmgren v Malmgren, --- Fed.Appx. ----, 2019 WL 211324 (Mem) (4th Cir., 2019)[Sweden] [Well settled defense] [Petition granted]

          In Malmgren v Malmgren, --- Fed.Appx. ----, 2019 WL 211324 (Mem) (4^th Cir., 2019) Dick Goran Malmgren (“father”) filed a petition against Lisha Chevonne Malmgren (mother”). for the return of his daughter to Sweden. The district court determined that the child had been wrongfully removed from Sweden, her country of habitual residence, but because she was well settled in the United States, the court denied the petition and did not order that the child be returned to Sweden. The Fourth Circuit vacated the judgment and and directed the district court on remand to expeditiously grant the petition for return.

          The Court pointed out that it reviews the district court’s factual findings for clear error and reviews de novo the court’s conclusions regarding principles of domestic, foreign, and international law. Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). It noted that Article 12 of the Convention directs that when a child has been wrongfully removed or retained, the Contracting State shall order the prompt return of a child to his or her country of habitual residence if less than a year has elapsed between the wrongful removal or retention and the commencement of the proceeding, unless one of the enumerated exceptions applies. Convention, art. 12. If the petition is not filed within one year of the child’s removal, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”  For a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016). The “well-settled” defense, however, is not applicable if the petition was filed within one year after the wrongful removal or detention. Article 12 states “[t]he general rule that when a court receives a petition for return within one year after the child’s wrongful removal, the court shall order the return of the child forthwith.” Lozano v. Alvarez, 572 U.S. 1, 5 (2014); see also Miller, 240 F.3d at 402 n.14 (finding that “the ‘well-settled’ defense [ ] has no application” because “the petition was filed within a year of the wrongful removal”).

          Tthe district court found that the father established that the child was wrongfully removed from her habitual place of residence in violation of his custody rights. Nevertheless, the court allowed the mother to establish that the child is now well settled in the United States, reasoning that it could consider this defense because the father unreasonably delayed in filing the petition for return even though it was filed within the one-year period. Finding that it had equitable discretion to consider the mother’s “well-settled” defense even when the petition was filed within one year of the wrongful removal, the court determined that the mother established this defense and thereby denied the father’s petition.

          The Eleventh Circuit held that the district court’s finding that it could consider the “well-settled” defense even if the petition was filed within the one-year timeframe is not supported by the Convention or case law analyzing the relevant articles. See Convention, art. 12; Lozano, 572 U.S. at 5. It is mandatory under Article 12 that if the court determines that the petition for return is filed within one year of removal, with exceptions that are not relevant here, the child must be returned to her country of habitual residence. Miller, 240 F.3d at 402 n.14. Accordingly, it vacated the district court’s order denying the petition for return and directed the district court on remand to expeditiously grant the petition for return and order the prompt return of the child to Sweden, her country of habitual residence.

Pfeiffer v Bachotet, 2019 WL 190927 (11th Cir., 2019)[Switzerland] [Rights of custody][Petition denied]

      In Pfeiffer v Bachotet, 2019 WL 190927 (11^th Cir., 2019) the Eleventh Circuit affirmed a judgment of the district court which denied the petition of Plaintiff-Petitioner Marcellinus Pfeiffer, who sought the return of his children N.A.R. and R.H.E. from the United States to Switzerland.

          Pfeiffer and Rachel Bachotet were married in France in 2010. Two years later, in 2012, they moved to Switzerland. Pfeiffer and Bachotet had two children: N.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June 17, 2018, both children had lived continuously in Switzerland since 2012. In June 2017, Pfeiffer and Bachotet obtained a divorce when the District Court of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and Decree of Divorce (the “Divorce Judgment”). Among other provisions, this Divorce Judgment provided for the two children to “remain under shared custody of both parents.” It further “require[d] both parents’ consent [to relocate the children] if the new place of residence is located abroad or if relocation has some impact on the exercise of parental custody or visitation rights of either parent.” Nonetheless, section 3.2.a) of the Divorce Judgment expressly specified that Pfeiffer “does not object to the mother’s taking residence abroad (US or France) at/after the end of the school term 2016/2017.” Other parts of the Divorce Judgment also indicated that it anticipated Bachotet would relocate with the children outside of Switzerland. Paragraph 3.2.c) aa provided, “Until [Bachotet] relocates with the children abroad (see section [3.]2. a [)], last paragraph above), the children’s father is entitled and obliged to exercise his obligation of care towards the children as follows ....” Similarly, paragraph 3.2.c) bb stated, “As from relocation of [Bachotet] and the children abroad (see section [3.]2. a [)] last paragraph) the following visitation regime shall be effective .... Once per year, [Bachotet] shall pay for travelling costs (round trip), when the children visit their father. Any other visitation-related costs shall be borne by the father.”

Until Bachotet relocated the Divorce Judgment awarded Pfeiffer parenting time with the children every other weekend, with additional time for holidays and during the summer. In 2018, the guardian appointed to oversee the custodial arrangement between the parties modified the parents’ custodial agreement so that Pfeiffer and Bachotet had equal time with the children. While she entered a new parenting plan, under Swiss law, she lacked the authority to modify the Divorce Judgment. Therefore, the Divorce Judgment remained unchanged.

          At the end of the children’s 2016-17 school term, Bachotet began the relocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for the children to emigrate from Switzerland to the United States. Bachotet received notice that the United States had authorized the Visas on May 17, 2018. They were valid until July 6, 2018. On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In that letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation with [the] children ... abroad, in the US or in France, as expressed in the [Divorce Judgment] in 2017.” That same afternoon, Bachotet booked plane tickets for herself and her children to the United States for June 17, 2018. On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which had jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he “revoke[d] [his] consent to the relocation of [the] children ... to the United States of America.” He requested that the court “immediately impose a travel ban ... without consultation with ... Bachotet, in order to keep her from leaving [Switzerland] with the children.” The record contained no subsequent order from the Swiss court acting on Pfeiffer’s request. On about June 17, 2018, Bachotet left Switzerland with the children for the United States. The three currently resided in Marietta, Georgia, with Bachotet’s American fiancé.

On July 17, 2018, Pfeiffer filed the litigation seeking return of the children to Switzerland under the Hague Convention.

          Following a hearing, on August 29, 2018, the district court issued an order denying Pfeiffer’s petition. The court reasoned that Pfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the children from Switzerland violated Pfeiffer’s rights of custody, in light of the Divorce Judgment’s provision awarding Bachotet “the exclusive right to determine whether the children would remain in Switzerland or move to the United States or France at the end of the 2016/2017 school year.” The Eleventh Circuit affirmed.  It found that Pfeiffer had established that the children’s habitual residence at the time of removal was Switzerland, but the district court nonetheless correctly denied Pfeiffer’s petition because Pfeiffer had not demonstrated that Bachotet’s removal of the children violated his custody rights under Swiss law.

          The Eleventh Circuit Court noted that in identifying when a child’s habitual residence has been changed, it has set forth two requirements to alter a child’s habitual residence: (1) the parents must share a “settled intention” to leave the old habitual residence behind; and (2) an “actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be present to change a child’s habitual residence. It concluded based on the second requirement, that the children’s habitual residence had not changed as of the date of the challenged removal. As of the time of the challenged removal, June 17, 2018, the children—then seven and nine years old—had lived continuously in Switzerland for six years. Nothing in the record indicated that they had ever lived in—or even spent significant time in—the United States as of that date. Nor did the record suggest or did the parties argue that any other country could have served as the children’s habitual residence as of June 17, 2018. And since acclimatization cannot take place without the parties’ physical presence in a new country, the children’s habitual residence as of the date of removal was Switzerland.

          The court also found that Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s custody rights under Swiss law.  Rights of custody, include “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Convention art. 5(a). It observed that Article 133 of the Swiss Civil Code, Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts with the authority to “regulate [] parental rights and obligations in accordance with the provisions on the legal effects of the parent-child relationship. ... In particular it [has the power to] regulate []: ... residence ....” Under Swiss law, in cases like this one, where the parents enjoy joint parental responsibility, either the consent of the other parent or “a decision of the court or the child protection authority” is necessary before one parent may establish a new place of residence outside Switzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. Here, the Divorce Judgment constituted a decision of the Swiss court. And though Swiss law generally provides parents with a ne exeat right as it pertains to removal of a child from Switzerland, see Swiss Civil Code, Art. 301a, the Divorce Judgment here expressly empowered Bachotet to relocate with the children to either the United States or France “at [or possibly after] the end of the school term 2016/2017.” So, by Swiss law, under the Divorce Judgment, Bachotet had the sole rights of custody as they pertained to determining whether to move the children to the United States.

          Pfeiffer did not contest this analysis, but he nonetheless asserted that events transpiring after the court entered the Divorce Judgment revoked Bachotet’s authority to remove the children from Switzerland. In support of this claim, Pfeiffer urges that Bachotet’s authority to remove the children was time-dependent and automatically expired when Bachotet failed to move them to the United States in June 2017. The Court could not conclude that Bachotet did not take steps to remove the children as soon as possible after the end of the 2016/2017 school term. Second, Pfeiffer contended that, following the court’s entry of the Divorce Judgment, he reestablished his rights of custody to determine the children’s place of residence, based upon the modification to the custodial agreement that the guardian reached and the parents agreed to. But Pfeiffer had not showed that the guardian’s modification of the custodial agreement cognizably revoked the court’s order authorizing Bachotet to remove the children to the United States at the end of the 2016/2017 school term or modified the Swiss Court’s Divorce Judgment. Nor had Pfeiffer showed that the Swiss court ever amended the Divorce Judgment to incorporate or otherwise recognize the modified custodial agreement, even though under Swiss law, the Swiss court retained jurisdiction to amend its orders regarding custody. Under the Divorce Agreement, Pfeiffer did not enjoy a ne exeat right as it pertained to Bachotet’s authority to move the children from Switzerland to the United States. And since the Divorce Agreement was a court order that has not been modified, it constituted Swiss law for purposes of ascertaining the parties’ rights of custody to determine the children’s place of residence. The Court was bound to apply its terms and affirm the district court’s conclusion that Pfeiffer had not satisfied his burden to establish a prima facie case of wrongful removal under the Hague Convention.