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Thursday, September 12, 2019

Watts v Watts, --- F.3d ----, 2019 WL 4197486 (10th Cir., 2019)[Australia] [Habitual residence] [Petition denied]



In Watts v Watts, --- F.3d ----, 2019 WL 4197486 (10th Cir., 2019) the Tenth Circuit affirmed the district courts determination concerning the location of the children’s habitual residence. 

Shane Watts was a dual citizen of Australia and the United States. Carrie Watts was a citizen of the United States. In 2005, Shane and Carrie married in Park City, Utah. From December 2006 to June 2016, the couple lived in North Carolina, where they reared their three children, also dual citizens of Australia and the United States, and ran an international dirt-bike-racing school: DirtWise. In March 2016, the couple learned that their middle child would need specialized medical attention possibly including expensive palate-extension surgery. The family decided to move to Australia to benefit from that country’s universal-healthcare system. The couple intended to live in Australia until completion of their son’s medical treatment. They estimated this would take about two to two-and-a-half years. In spring 2016, the family began preparing for the move. Shane and Carrie rented out their home in North Carolina and temporarily moved the family into Carrie’s parents’ house in Utah. The family lived at this house in Utah from June 2016 to September 2016. While living at Carrie’s parents’ house, the family traveled around the western United States, in part “to evaluate places where they might choose to live when they returned from Australia.” During this time, “the parties had many conversations about their intentions to live in Australia only long enough to obtain [their son’s] healthcare.” 

In September 2016, the family moved to Australia. They rented a home in Shane’s hometown of Maffra, Victoria and shipped many of their belongings to Australia.2 Carrie had also applied for, and was later granted, a temporary visa enabling her to remain in Australia for 12 months. In October 2016, Shane and Carrie enrolled their children in school in Australia. After the rental home proved too small, Shane and Carrie bought a house. In March 2017, the family moved into this home. The move to Australia placed additional stress on Shane and Carrie’s already-strained marriage. Carrie had developed second thoughts about the move and questioned the sustainability of the stint in Australia. Shane continued to travel overseas for work and, while doing so, rarely spoke with Carrie. Concerned that she would be unable to work if she and Shane later divorced, Carrie applied for a permanent visa.

In April 2017, Carrie called a family meeting, attended by Shane’s parents and Carrie’s mother. Everyone agreed that Shane and Carrie needed to remain together so that their child could continue to receive necessary medical care, and so that Carrie could get her permanent visa. Shane and Carrie’s relationship continued to deteriorate. From April 20 to May 20, 2017 and again from May 30 to July 13, 2017, Shane traveled to the United States to teach DirtWise classes. One morning, Carrie discovered that she had been locked out of all their shared accounts and that Shane had cancelled, or set zero-dollar limits on, their joint credit cards. This marked the beginning of the end. 

About July 13, 2017, Shane returned to Australia, and on July 26, 2017, he tried one last time to persuade Carrie to work on the marriage. When she declined, Shane notified the Australian immigration authorities that they had separated, and he withdrew his sponsorship of Carrie’s permanent-visa application. On August 17, 2017, about three days after learning that Shane had withdrawn his sponsorship of her permanent-visa application, Carrie took the children and flew to Utah. She did not tell Shane beforehand, and she lied to customs agents that she was traveling to the United States for a short visit. As the district court found, [before] removing the children and returning to the United States, the parties never had a shared mutual intent to make Victoria, Australia the habitual residence of the children. At no time did Carrie and Shane mutually agree to change their initial plan to be in Australia only long enough for [their son] to receive his medical care—after which they would return to the United States to raise the children.  In total, the family lived in Australia for just over eleven months. 

Shane petitioned a federal court in Utah for the return of the children. The district court denied Shane relief and dismissed the petition. In its order, the district court concluded that Shane had failed to prove by a preponderance that Australia was the children’s habitual residence. The district court noted that courts traditionally rely on two factors when determining a child’s habitual residence under the Convention. The first factor is the child’s acclimatization to the country that the petitioner claims is the habitual residence. As the district court framed it, when determining acclimatization, a court must resolve whether the “children have become so rooted in the new country that” removal “is tantamount to taking the child[ren] out of the family and social environment in which [their] life has developed.” (citing Mertens v. Kleinsorge–Mertens, 157 F. Supp. 3d 1092, 1105 (D.N.M. 2015)). The second factor is the parents’ last shared intent. To that end, the parents must evince “a degree of settled purpose” or “a sufficient degree of continuity to be properly described as settled.” (citing Kanth v. Kanth, No. CIV 99-4246, 232 F.3d 901, 2000 WL 1644099, at *1 (10th Cir. Nov. 2, 2000)). The district court held that under both factors, Shane had failed to show by a preponderance of the evidence that Australia was the children’s habitual residence.

The Tenth Circuit rejected Shane’s argument that the district court erred by conflating the habitual-residence standard with the domicile standard that traditionally governs jurisdiction over American child-custody disputes. He claimed that, as a prerequisite for habitual residency, the district court required that he and Carrie have shared an intent to stay in Australia “permanently or indefinitely.” A review of the district court’s order defeated Shane’s claim. In deciding this case, the district court relied in part on the courts unpublished opinion in Kanth, 2000 WL 1644099, at *1, 232 F.3d 901. In Kanth it observed that the term “habitual residence” is not defined by the Hague Convention or the U.S. Code.  It also observed that the term should not be interpreted technically or restrictively. Instead, a district court should examine the “specific facts and circumstances” presented in each case to determine if there is a “settled purpose,” or “a sufficient degree of continuity to be properly described as settled.” It agreed with Shane that a family need not intend to remain in a given location indefinitely before establishing habitual residency there. The length of an intended stay is just one factor to consider when determining whether the petitioner has proven “a sufficient degree of continuity to be properly described as settled.” The problem with Shane’s argument was that the district court did not require permanency. In its order dismissing Shane’s petition, the district court cited the unpublished order in Kanth and recognized that permanency is not necessary to establish habitual residency. The district court considered the “specific facts and circumstances” surrounding the Watts’ move to Australia and, in doing so, looked to the length of the family’s intended stay as one factor among many. The court noted that the family intended to remain in Australia for “a highly specific purpose which by its nature had a limited duration,” and that “[t]he couple maintained a home in North Carolina; stored many household, holiday, and sentimental possessions in Utah”; and maintained “U.S. financial ties.” Additionally, the court noted that “Shane maintained his company, DirtWise, primarily operating in North America.” Considering these facts together, the court concluded that Australia was not the children’s habitual residence. Despite Shane’s claim to the contrary, the court did not require permanency as a necessary component of proving habitual residency. Accordingly, the court did not err in this regard.

Shane argued that the district court erred by failing to consider his and Carrie’s “present, shared intentions regarding their child[ren]’s presence” in Australia. Here, the court found that the shared intent “was to remain in Australia for a highly specific purpose which by its nature had a limited duration.” Shane cited cases in which courts had found that a shared intent to remain in a location for two to four years was sufficient to sustain a habitual-residence finding. (citing Whiting, 391 F.3d at 551, and Toren v. Toren, 26 F. Supp. 2d 240, 243–44 (D. Mass. 1998)). This timeline alone establishes habitual residency. It held that when determining habitual residency, courts must consider all the facts and circumstances surrounding the family’s life in a given location. Under some facts and circumstances, two years may suffice to establish habitual residency. See Whiting, 391 F.3d at 551. But the intended length of a stay, on its own, does not necessarily demonstrate habitual residence. Instead, a court should consider all the circumstances surrounding a family’s intent to remain in a location and determine if there is a “sufficient degree of continuity to be properly described as settled.” Kanth, 2000 WL 1644099, at *1, 232 F.3d 901 (quoting Feder, 63 F.3d at 223). The district court properly conducted this analysis and, in doing so, committed no legal error.


Shane next argued that the district court ran afoul of Kanth, 2000 WL 164409. In Kanth, it reviewed a district court’s habitual-residence determination. . In doing so, it noted that “[a]lthough it is the child’s habitual residence that the court must determine, in the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the abduction are important factors to be considered.”  The children in Kanth were three and six years old when they were taken from Australia by their mother.  In contrast, Shane and Carrie’s children were 7, 10, and 12 years old when Carrie removed them from Australia. Shane argued that Kanth’s emphasis on parental intent did not apply here, because the Watts children are older. But the record revealed that the court did not, as Shane argued, place “heavy importance on parental intent over child acclimatization.”. Instead, the district court considered both factors independently and equally. In its order dismissing Shane’s petition, the court found that “under the totality of the evidence before it ... the children did not acclimatize to Australia.” The court considered acclimatization from the children’s perspective and relied on evidence demonstrating that the children’s family and social environment had not sufficiently developed in Australia.7 Additionally, the court concluded that “even if the children had acclimatized,” Shane and Carrie’s last shared intent was to stay in Australia “only for a limited time.” The court thus considered both acclimatization and parental intent as independent factors. 


Shane argued that the district court legally erred by not fully crediting how long the children had been in Australia. To that end, Shane argued that “nearly one year spent living in a country in which the children believed they would spend at least a few more years of their lives is indeed a sufficient amount of time to acclimatize.”  The Court held that a child may acclimatize to a new location in a year; however, it is equally true that a year might be an insufficient amount of time for acclimatization. To keep a court’s habitual-residence determination free from technical restrictions, it would not read into the term “habitual residence” any conclusive time frame. Though the length of time a child lives somewhere matters in determining whether the child has acclimatized there, it is merely one factor among many. Thus, the court applied the correct legal standard by considering the totality of the circumstances—not just the amount of time spent in Australia—when determining whether the children had acclimatized.


Shane’s last claim of legal error was that the district court failed to determine which state—Utah or North Carolina—was the children’s habitual residence. Shane relied on Article 31(a) of the Convention and claimed that after the court determined that Australia was not the children’s habitual residence, the court needed to decide which state within the United States was the children’s habitual residence. It rejected this argument. When, as here, the petitioner fails to establish habitual residence, Article 31 is not implicated. See Feder, 63 F.3d at 221–22, n.8 (“If a child’s habitual residence is a State which has more than one territorial unit, the custody rights laws of the territorial unit apply. ... In the United States, the law in force in the state in which the child was habitually resident ... would apply to determine whether a removal or retention was wrongful.” (citing Hague Convention, art. 31)). The Convention does not require a district court to determine where a child habitually resides. Instead, the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. If the child habitually resides there, the Convention demands that the court determine whether the child’s removal from that location was wrongful. See Shealy, 295 F.3d at 1121–22. Here, the court found that the children did not habitually reside in Australia, so it matters not in which state in the United States the children now reside. In any event, the district court had no occasion to apply Article 31 here, because it found that Shane failed at the first step—that is, he did not show that Australia was the children’s habitual residence. 

Saturday, August 31, 2019

Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) [Russian Federation] [Federal & State Judicial Remedies] [ Subject matter jurisdiction]



In Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) Petitioner commenced the case on August 14, 2019 by filing a Petition, alleging that Respondent wrongfully removed their nine-year-old son from the Russian Federation to the United States. As a result, Petitioner sought return of her son pursuant to the Hague Convention. Respondent sought dismissal of the Petition for lack of subject matter jurisdiction. The district court granted the defendants motion to dismiss the proceeding for lack of subject matter jurisdiction.

The district court observed that Countries may bind themselves to the terms of the Convention by either signing and ratifying the Convention pursuant to Article 37, or by acceding to the Convention pursuant to Article 38. The United States signed the Convention in 1981, and the Convention came into force in the United States in 1988. Marks on Behalf of SM v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017). According to Article 38, Any other State may accede to the Convention.  [...] The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. www.hcch.net/en/instruments/conventions/full-text/?cid=24 (last accessed August 27, 2019).\

The Court noted that because the Convention functions solely through the designated Central Authorities in the respective states, and because only contracting parties will have designated such authorities, the Convention can operate only between two signatory states.” United States v. Amer, 110 F.3d 873, 881 (2d Cir. 1997) (citing Convention, Arts. 6 & 7); see also Mezo Elmergawi, 855 F. Supp 59, 62 (E.D.N.Y. 1994); Mohsen v. Mohsen, 715 F. Supp. 1063, 1065 (D. Wyo. 1989). By the terms of the Convention, the accession has effect only if a Contracting State accepts an acceding country’s accession. The Russian Federation acceded to the Convention on July 28, 2011; however, the United States has not accepted that accession. See Status Table, www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last accessed August 27, 2019); see also Acceptances of Accessions, www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=1112 (last accessed August 27, 2019). 

The Court found that although Petitioner alleged that the United States and the Russian Federation were parties to the Convention, the allegation alone did not confer subject matter jurisdiction. This is especially true where the United States has not accepted the Russian Federation’s accession to the Convention, the weight of authority supported a finding that jurisdiction was lacking in this case, and Petitioner provided no authority to the contrary.

The district court found that Petitioner failed to establish that the Court had subject matter jurisdiction over her claim. See Taveras v. Taveras, 397 F. Supp. 2d 908, 911 (S.D. Ohio 2005) (“It is undisputed that the United States and the Dominican Republic have not entered into the negotiations require by Article 38. Consequently, the Convention’s administrative and judicial mechanisms are not yet applicable with regard to relations between the two countries.”); see also Gonzalez v. Gutierrez, 311 F.3d 942, 945 n.2 (9th Cir. 2002), abrogated on other grounds by Abbott v. Abbott, 560 U.S. 1 (2010) (“An accession is effective only between the acceding country and those contracting states that have accepted the accession.”). 

Monday, August 26, 2019

Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019)[Guatemala] [Federal & State Judicial Remedies] [Walsh Act] [Depositions] [live Trial Testimony]



In Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019) in a prior decision dated August 12, 2019, the District Court ordered Respondent Sara Helbrans (“Respondent”) to explain whether there were alternative means to obtain Petitioner’s deposition testimony. See Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *2 (E.D.N.Y. Aug. 12, 2019). This information was necessary to determine whether to authorize a subpoena, pursuant to 28 U.S.C. § 1783, (Walsh Act) for Petitioner’s deposition.  The Court also required Petitioner Aaron Teller to state whether he would be appearing for trial to testify personally. Petitioner indicated that he would not be appearing to testify at trial personally. Petitioner’s refusal to appear for trial to testify in person left the Court no option other than to issue a Walsh Act subpoena requiring his attendance for trial and for a deposition.

The District Court observed that there is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness.” United States v. Int’l Bus. Machines Corp., 90 F.R.D. 377, 381 (S.D.N.Y. 1981). It is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter. The only cases the Court was aware of were those where there are immigration barriers and/or the petitioner was a non-U.S. citizen. That was not an issue in this case: Petitioner was a U.S. citizen and subject to a Walsh Act subpoena.
  
Petitioner asked the Court to permit testimony via videoconference, but provided no reason why that was appropriate, why he refused to travel to the United States, or what circumstances or arrangements could be made to permit such testimony via video, particularly from Guatemala. There was no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States. This absence of any good cause requires the request to appear via videoconference be denied. The Court held that even if such a proffer were made, the Court would exercise its discretion to require live in-person testimony at trial. 

The District Court noted that it had mentioned at previous hearings that conducting cross-examination at a trial via video of a party is near impossible, unless Petitioner is given full advance notice of all documents to be used during such an inquiry. That is highly unorthodox and threatens to prejudice Respondent. As a result, the Court ordered issuance of a Walsh Act subpoena commanding Petitioner’s testimony at trial. E.g., Matovski v. Matovski, No. 06-CV-4259, 2007 WL 1575253, at *3 (S.D.N.Y. May 31, 2007) (denying application for eight witnesses to testify remotely in Hague Convention trial, because they failed to establish necessary good cause; permitting petitioner, who had visa barriers, to appear via video); S.E.C. v. Tourre, No. 10-CV-3229, 2013 WL 3326867, at *2 (S.D.N.Y. June 26, 2013) (denying motion to quash Walsh Act subpoena for trial testimony); United States v. Jefferson, 594 F. Supp. 2d 655, 661 n.1 (E.D. Va. 2009) (“Because Jennifer Douglas Abubakar is an American citizen, she is subject to witness subpoena pursuant to 28 U.S.C. § 1783 even though she currently resides in a foreign country. Accordingly, an Order has entered directing issuance of a subpoena requiring her appearance as a witness at trial.”).

The Court indicated that it noted in its earlier decision, Teller, 2019 WL 3779863, at *2, that depositions in Hague Convention matters have become a norm, in light of the singular importance of the testimony of the parent. The Court, therefore, concluded that a Walsh Act subpoena for Petitioner’s deposition was in the interest of justice. All that remained for issuance of the Walsh Act subpoena was for Respondent to establish that there were no “alternative methods to obtain testimony. In determining whether there were such alternative methods, “courts analyze whether it is practical to obtain the information sought from the witness.” Balk v. N.Y. Inst. of Tech., 974 F. Supp. 2d 147, 156 (E.D.N.Y. 2013). “Subpoenas may be issued when it is impractical to obtain the information.... Impracticality occurs, for example, where resort to alternative methods is unlikely to produce the relevant evidence in time to meet impending discovery deadlines.” S.E.C. v. Sandifur, No. 05-CV-1631, 2006 WL 3692611, at *4 (W.D. Wash. Dec. 11, 2006).

Teller now offered to have his deposition taken in Guatemala. The Court noted that a deposition in Guatemala requires a foreign lawyer, and poses other practical problems, including the need to secure space at a United States consulate to conduct the deposition. Teller now indicated that he had located a lawyer in Guatemala who can assist Respondent in conducting a deposition, and lawyers from Respondent’s firm should travel to Guatemala to conduct the deposition. The Court held that this was both impractical and inappropriate in this case. First, the Court was already ordering Petitioner to appear for the trial in this matter. Any deposition would be scheduled around the date of the trial to avoid any inconvenience and need for Petitioner to appear twice. Second, as required by the Walsh Act, Respondent advanced necessary fees for travel for Petitioner’s deposition and trial testimony. To the extent that the advanced fees were insufficient, the Court would require Respondent to pay the necessary expenses and fees. This obviated any financial burden that could be imposed by a deposition.  Third, the need for multiple groups of lawyers to travel to Guatemala, the retention of local counsel, and research into Guatemalan law is obviated by having Petitioner—who must travel for trial—appear for deposition in the United States. (There were also now three sets of lawyers who represent the children in the case. Many of those counsel worked for legal aid organizations. These counsel would have a right to ask questions at a deposition, and whatever means Respondent’s pro bono counsel had to travel to Guatemala, the Court was doubtful other counsel also had such financial resources). The processes for a Guatemalan deposition take time and expense. Trial was scheduled to commence in little over one month and there were multiple motions pending. A deposition shortly in advance of the trial, in the United States, avoids those complications. See Fuentes-Rangel v. Woodman, No. 14-CV-5, 2014 WL 12656211, at *1 (N.D. Ga. May 6, 2014) The respective burdens on the parties and practicalities did not justify conducting Petitioner’s deposition abroad, and demonstrate that his deposition testimony was unavailable absent a Walsh Act subpoena.

There is a general presumption that a person be deposed near his place of work or home. But that presumption has no place when an American citizen, living abroad, is subpoenaed under the Walsh Act. See S.E.C. v. Banc de Binary, No. 13-CV-993, 2014 WL 1030862, at *9 (D. Nev. Mar. 14, 2014) And it is for that reason that expatriate witnesses have been ordered to the United States.

Teller objected that the subpoena required his attendance at a deposition more than 100 miles from his residence in Guatemala. The 100-mile bulge rule and its penumbras would be pertinent if this were a Rule 45 subpoena—see Fed. R. Civ. P. 45(c) (“Place of Compliance”)—but it is not. NML Capital Ltd. v. Republic of Argentina, No. 14-CV-492, 2014 WL 3898021, at *12 (D. Nev. Aug. 11, 2014). The geographical limitations in Rule 45 are not incorporated into the Walsh Act. The Act authorizes a Court to compel a U.S. citizen located abroad to appear for testimony; it follows that the testimony can be ordered to take place in the district where that Court sits.

Teller objected also on the grounds that the subpoena was not properly served. At this point, because the Court had not yet authorized a Walsh Act subpoena, the service objection was premature. Because the Court was now authorizing the Walsh Act subpoena, and to avoid any further delay, this resolved the question. The Walsh Act provides that a subpoena shall be served pursuant to the Federal Rules of Civil Procedure “relating to service of process on a person in a foreign country,” i.e., Rule 4(f). See 28 U.S.C. § 1783(b). The Court authorized the issuance of Walsh Act subpoenas, but they must be served upon Petitioner in Guatemala, consistent with Rule 4(f). 




Wednesday, August 14, 2019

Teller v Helbrans, 2019 WL 3779863 (E.D. N.Y., 2019)[Guatemala] [Federal & State Judicial Remedies] [Depositions]



In Teller v Helbrans, 2019 WL 3779863 (E.D. N.Y., 2019) the district court denied Respondent Sara Helbrans (“Helbrans”) motion for an order compelling Petitioner Aaron Teller (“Teller”) to appear for a deposition in this action brought under the Hague Convention.
  
Teller was a U.S. citizen who resided in Guatemala. Helbrans sought to depose Teller pursuant to the Walsh Act, 28 U.S.C. § 1783, which permits a court to exercise jurisdiction over a United States citizen, and to require him to appear in the United States to testify. Blackmer v. United States, 284 U.S. 421, 438 (1932). The Act authorizes the Court to issue a subpoena to: a national or resident of the United States who is in a foreign country ... if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner. 28 U.S.C. § 1783(a). 

The Court pointed out that because a Hague Convention case is a civil proceeding, for the Court to issue a subpoena, Helbrans had to demonstrate that Teller’s testimony is (1) necessary in the interest of justice; and (2) that it is not possible to obtain his testimony in admissible form without his personal appearance.. “[W]hen considering the propriety of a subpoena under 28 U.S.C. § 1783, the court should consider factors such as the nature of the proceedings, the nature of the testimony or evidence sought, the convenience of the witness, the convenience of the parties, and other facts bearing upon the reasonableness of requiring a person abroad to appear as a witness.” Safar v. Costco Wholesale Corp., No. 15-CV-469, 2016 WL 1589600, at *2 (E.D. Va. Apr. 19, 2016). “The decision to issue a subpoena under this statute is left to the sound discretion of the court.” Balk v. N.Y. Inst. of Tech., 974 F. Supp. 2d 147, 155 (E.D.N.Y. 2013) .

As to whether Teller’s testimony was necessary, it was clear that without it, the Court could not properly adjudicate the merits of his petition. Teller brought the petition and was a party to the case, alleging that Helbrans kidnapped their six children in violation of his custody rights. Up to this point, despite Court inquires on the issue, there was no firm commitment that Teller will appear for trial testimony. 

Teller argued that a Walsh Act subpoena was invalid because the Hague Convention does not contemplate requiring parents to appear for deposition. The court observed that nothing in the Convention requires attendance at a deposition, but nothing prohibits a deposition or other customary discovery procedures from being used. And the taking of deposition testimony is a common occurrence in Hague Convention matters, because it assists the Court and both parties in clarifying facts and narrowing the issues for decision. See, e.g., Robert v. Tesson, 507 F.3d 981, 995 (6th Cir. 2007). Having presumably propounded his own discovery to Helbrans, pursuant to the schedule in the case, it was incongruous for Teller to object to the use of other discovery devices, like depositions. The first factor was therefore satisfied. 
The second factor—whether it is “possible to obtain [the citizen’s] testimony in admissible form without his personal appearance”—was no satisfied by Helbrans. Balk, 974 F. Supp. 2d at 155. “In assessing the second prong—whether there are potentially alternative methods to obtain testimony—courts analyze whether it is practical to obtain the information sought from the witness.” Teller indicated that he had offered to either sit for a deposition in Guatemala or appear for a deposition via video. Helbrans responded by stating that Teller’s presence was required under the Walsh Act. To obtain a Walsh Act subpoena, and command a citizen’s appearance in the United States, the movant must demonstrate that admissible testimony is otherwise not available, see Balk, 974 F. Supp. 2d at 156; the movant cannot rely on the compulsion of the subpoena—the requirement that the witness appear in the United States—to make that showing. Depositions may be taken remotely, and by video. See Fed. R. Civ. P. 30(b)(4). In some instances, that has been sufficient to deny a request for a Walsh Act subpoena. E.g., Ameris Bank v. Russack, No. 14-CV-2, 2015 WL 4770190, at *2 (S.D. Ga. Apr. 1, 2015), aff’d, 2015 WL 4760694 (Aug. 12, 2015).

The Court found that Helbrans had not made a showing why obtaining Teller’s deposition testimony remotely via video or in-person abroad was not practical or possible. As such, the motion was denied without prejudice to renewal. 

Thursday, August 8, 2019

Pinto Quintero v De Loera Barba, 2019 WL 3604615 (W.D. Texas, 2019)[Mexico] [Necessary expenses]



In Pinto Quintero v De Loera Barba, 2019 WL 3604615 (W.D. Texas, 2019) the Court ordered respondent Alejandra Maria de Loera Barba to return Pinto’s four children based on an application of the Hague Convention. It observed that ICARA requires “[a]ny court ordering the return of a child” to “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 the 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); see also Salazar v. Maimon, 750 F.3d 514, 520 (5th Cir. 2014)

De Loera suggested three reasons why a fee order would be clearly inappropriate here, but none persuade the Court. First, she claimed she “knows nothing else than to be a mom.” The Court noted that de Loera was exceptionally well educated, graduating from Trinity University and an elite private high school in San Antonio. Second, she contended she “does not have the financial means to pay,” attaching a financial disclosure listing $8013 of charitable donations as her lone asset. That was contradicted her in-court admission that she could access over $11,000 in child support payments,  and that she relied on her family for whatever financial support she needs, including buying a $350,000 home through a shell corporation, enrolling the four children in private school (an annual cost exceeding $60,000), and retaining American and Mexican lawyers. Third, she argued she should not have to reimburse Pinto for enforcing the Mexican custody order since she claimed her Mexican lawyer said she could take the children to the United States without violating that order. The Court held that de Loera failed to explain why a fee order was clearly inappropriate.

Pinto’s claimed the following necessary expenses: $110,470.36 in out-of-pocket expenses, including travel expenses and temporary accommodations for two caretakers (one of whom was a relative) and for actual and potential witnesses; security and detective services, including during the months spent searching for his children; and fees incurred visiting the children at the court-approved supervised visitation facility and  $22,541.62 in costs ranging from court clerk and reporter fees; hiring translators, private investigators, and process servers; printing and copying; and renting the house where he and the children lived during the proceedings. 

The court held that Court costs, court reporter fees, printing and copying costs, and translator fees are “per se awardable,” see Saldivar, 894 F. Supp. 2d at 943 (citing 28 U.S.C. § 1920), as are child “care during the course of proceedings ... and transportation costs related to the return of the child[ren].” § 9007(b)(3). Moreover, de Loera never objected to any claimed cost beyond categorizing the total amount as “preposterous” and “outrageous,”, and relying on “attorney arguments attempting to set forth h[er] version of the underlying facts relating to the child[ren]’s retention.” Salazar, 750 F.3d at 522. That fell short of her “statutory obligation to come forward with evidence to show the claimed fees were clearly inappropriate.” Her opposition—just like one the Fifth Circuit rejected in Salazar— “contain[s] no exhibits, affidavits, or any evidence to dispute the necessity or propriety of the claimed expenses. Nor did the Court’s independent review find any expenses not reasonably necessary to Pinto’s quest to get his children back. The Court held Pinto was entitled to $133,011.98 in costs and expenses.

In determining the request for legal fees both sides agreed the calculus begins with the lodestar approach: multiplying the total hours reasonably expended with a reasonable hourly rate. Hours contributing to a successful outcome are “reasonably expended.” Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). To determine a reasonable rate, the Court considers the prevailing market rate in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). And both sides agreed that in the Fifth Circuit, once the Court calculates the lodestar, it must then contemplate adjusting the figure upwards or downwards according to factors explained in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Those factors include “[t]he novelty and difficulty of the legal questions” (the lawyer “should be appropriately compensated for accepting the challenge”); “[t]he skill requisite to perform the legal service properly” (including the attorney’s “work product, his preparation, and general ability before the court”); “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee” (since “various types of legal work command differing scales of compensation”); “limitations imposed by ... the circumstances” (“[p]riority work that delays the lawyer’s other legal work is entitled to some premium”); “[t]he experience, reputation, and ability of the attorneys”; and “[a]wards in similar cases.” Id. at 719.


The court pointed out that Davis Santos attorneys and paralegals spent 617.8 hours securing their client’s total relief. De Loera mustered no more than “Conclusory complaints” that this effort was excessive, even though the law demands “specific reasons, comparisons or established standards by which to measure the objection.” In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F. Supp. 2d 732, 804 n.84 (S.D. Tex. 2008). Confronted with seventeen pages of detailed billing records, de Loera merely retained an expert to conduct “a perfunctory review” and deem the amount of time “questionable, nay, extremely excessive.” It noted that Davis Santos charges an approximate average hourly rate of $364. De Loera argued that’s too much, citing a Texas Bar Journal article reporting $281 as the median statewide hourly rate in 2017. But that’s the wrong comparator, for four reasons. First, this litigation took place in 2019, not 2017. Second, the Court looks to “the prevailing rate ... i[n] the community in which the district court sits”—here, San Antonio, the seventh most populous city in America with a correspondingly sophisticated legal market—not a statewide survey lumping urban and rural markets together. Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998). Third, the Texas Bar Journal did not account for differences among firms. Davis Santos is an elite boutique firm offering services comparable to a large law firm. According to a 2015 survey by the Texas State Bar, large San Antonio law firms charge a $421 median hourly rate—above what Pinto’s attorneys charged here. See Dep’t of Research & Analysis, State Bar of Tex., 2015 Hourly Fact Sheet 13 (2016), ECF No. 79-10. Fourth, the Texas Bar Journal did not account for differences among cases. But the Texas State Bar’s 2015 survey did, finding the statewide median hourly rate for international law cases (like this one) was $385—above what Pinto’s attorneys charged here. Id. at 6. And lacking any other argument from de Loera, the Court could not find a $364 average hourly rate unreasonable. That was all the more true since other judges in this district had approved much higher hourly rates for less complicated cases involving less qualified lawyers. See MidCap Media Fin., LLC v. Pathway Data, Inc., No. 15-60, 2018 WL 7890668, at *2 (W.D. Tex. Dec. 19, 2018) (approving a $755 hourly rate in a breach-of-contract case); Xpel Techs. Corp. v. Carlas Int’l Auto. Accessory, Ltd., No. 16-1308, 2017 WL 9362801, at *9 (W.D. Tex. Nov. 27, 2017) (approving a $545 hourly rate for attorneys at a large law firm who obtained a default judgment in a trademark infringement case); see also City of San Antonio v. Hotels.com, L.P., No. 6-381, 2017 WL 1382553, at *11 (W.D. Tex. Apr. 17, 2017) (awarding attorneys with twenty years experience $625 hourly, attorneys with ten to twenty years experience $475 hourly, and attorneys with five to nine years experience $350 hourly in a class action under the Texas Tax Code); Sierra Club v. Energy Future Holdings Corp., No. 12-108, 2014 WL 12690022, at *6 (W.D. Tex. Aug. 29, 2014) (awarding out-of-district counsel in a Clean Air Act case $925 per hour after finding that rate reasonable given their home market). And even if this hourly rate exceeded the market, the Johnson factors would adequately justify the increase. 

The Court held that Pinto was entitled to $224,835 in legal fees, and an additional $7,230 compensating his attorneys for the twenty-nine hours spent preparing his fee petition. See Johnson v. State of Mississippi, 606 F.2d 635, 637-38 (5th Cir. 1979). Combined with his other costs and expenses, the Court awarded Pinto $365,076.98. 

Sunday, July 28, 2019

Nissim v. Kirsh, 2019 WL 3369450 (S.D. N.Y., 2019)[Israel] [Habitual Residence] [Consent] [Petition granted]


          In Nissim v. Kirsh, 2019 WL 3369450 (S.D. N.Y., 2019) the district court granted the petition for return. It found that the Parties’ decision to move to the United States was conditioned on the parties and child living in the same home as a family. Since Respondent eliminated that condition by unilaterally carrying off the Child to another home on the other side of the country, there was no mutual agreement that the Child’s habitual residence would change from Israel to the United States. 

          In 2008, Orna Kirsh, a dual United States and Israeli citizen, married Dror Nissim, an Israeli citizen. In 2009, their Child, a dual United States and Israeli citizen, was born in Israel and, with the exception of the occasional vacation to the United States, has lived entirely in Israel. In the Spring of 2018, Dror received a promotion that would require him to relocate from Israel to California. Dror and Orna jointly decided to move to California to pursue the promising economic opportunity. The parties agreed to travel separately to California so that Orna could prepare the living arrangements and get settled for the start of the Child’s school. Orna and the Child did, in fact, travel to California on August 1, 2018, and Dror travelled to California on August 13, 2018.On August 6, 2018, while Dror was in Israel, Orna purchased two plane tickets from California to New York for herself and the Child. Orna decided to depart for New York while Dror was in the air, on his way to California. Orna testified that, while in California, she had a “revelation” that she wanted to leave Dror and take the Child with her to New York. At no point, from the booking of the plane tickets to arriving in New York, did Orna disclose this “revelation,” or any relevant facts, to Dror. Upon landing in California, and after brief exchanges via text message and e-mail relating to pick-up at the airport, Dror arrived at the family’s California apartment only to find it empty with a note on the kitchen counter. In the note, received by Dror on August 13, 2018, Orna disclosed her decision to relocate, with the Child, to New York. Dror Nissim (“Petitioner” or “Dror”) initiated this action on December 10, 2018.

  While the Parties disputed the family’s intentions accompanying the move, the district court found that, upon relocating to California, it was the family’s intention to move and live together, and that the Parties intended on returning to Israel after their stay in California. Both Dror and Orna made preparations in accordance with that joint plan. Petitioner never sought any documentation other than a three (3) year work visa. Both Orna and Dror owned property, both jointly and separately, that they were currently renting or constructing in Israel. Both Parties left credit card accounts open in Israel. the family left items in storage that they were not bringing with them to California. They only sought temporary housing. Furthermore, the Parties discussed their intent to remain in California on a temporary basis only. Following Respondent’s arrival to California with the Child, this Court found that Orna’s plan to move the Child to New York was concocted unilaterally without significant pre-meditation. 

          The district court observed that determining a child’s country of habitual residence is a threshold issue in nearly all Hague Convention cases. Guzzo. While the Hague Convention itself does not define “habitual residence,” the Second Circuit has instructed that “courts should begin an analysis of a child’s habitual residence by considering the relevant intentions,” specifically “the intent of the person or persons entitled to fix the place of the child’s residence.” Gitter, 396 F.3d at 131. When those tasked with fixing a child’s place of residence, for instance a child’s parents, disagree on the child’s place of habitual residence, the court must “determine the intentions of the parents as of the last time that their intentions were shared. Without evidence of a “settled mutual intent” to change a child’s habitual residence, courts have been reluctant to fund such a change. Ermini v. Vittori, 2013 WL 1703590, at *12 (S.D.N.Y. July 8, 2014). In addition to shared intent, courts must look to the acclimatization of the child to her new surroundings. See Gitter, 396 F.3d at 133 (“[W]e must consider whether ... the evidence points unequivocally to the conclusion that the child has become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted.”). While a child’s acclimatization may reach a level of completeness such that removal from the new location would cause serious harm, such acclimatization is rarely on display. See Heydt-Benjamin v. Heydt-Benjamin, 404 F.App’x 527, 529 (2d Cir. 2010); Ermini, 2013 WL 1703590, at *12. Further, although the test is two-pronged, analyzing the intention of the persons entitled to fix a child’s place of residence is the most important aspect of the analysis, particularly when a child is young. See Guzzo, 719 F.3d at 110 (2d Cir. 2013).

          The court noted that the Child was born in 2009 in Tel Aviv, Israel. For all intents and purposes, the family’s entire life was in Israel, especially that of the Child. 2In October of 2018, the Parties decided to temporarily relocate, as a family, to California due to a lucrative job opportunity offered to Petitioner by his company. The evidence supported the Court’s finding that the move was intended to be temporary. Dror obtained a temporary visa and demonstrated no intention of obtaining further documentation. Correspondence with the Company indicated that the move was temporary. Thus, the Court found that no settled mutual intent existed to change the Child’s habitual residence from Israel to the United States.

           The Court the had to determine if the Child has acclimated to her new surroundings. See Heydt-Benjamin, 404 F.App’x at 529. At the time Petitioner initiated the proceedings, the Child’s unfortunate reality had taken her from her home in Israel of nine (9) years to Mountain View, California, all just to turn around and trek back to New York, New York. All of this in a matter of twelve (12) days. The Child was enrolled in three different schools in that same time frame, only two of which she actually attended; had no friends, was unfamiliar with the new environment, and was struggling with the fact that her world had been turned upside down. Thus, at the time of filing, the Child had not acclimated to her new surroundings. The district Court found that their last shared intent was for the Child’s habitual residence to be Israel. Furthermore, the evidence did not demonstrate a transition so complete as to “unequivocally point to the conclusion that the child has acclimatized to the new location and has thus acquired a new habitual residence.” Ermini, 2013 WL 1703590, at *12. Petitioner has satisfied his burden of establishing that the Child, who is a habitual resident of Israel, has been removed or retained in the United States.

          The Court found that Petitioner had custody rights under Israeli law. Legal Capacity and Guardianship Law 5728-1962 (stating that both parents are equal guardians of their children). Further, as the Child has spent her entire life with both of her parents, Petitioner was exercising those custody rights and would still be exercising those custody rights if the Child had not been wrongfully retained. 

          The district court held that two Second Circuit cases directly controlled the outcome of this case: Mota and Hofmann. Mota, 692 F.3d at 116; Hofmann, 716 F.3d at 291. In Mota, the Second Circuit considered whether the retention of a child was “wrongful” when the mother consented to the child’s removal to the United States from Mexico on the condition that she would later be able to join her child and the child’s father at a later date. While the child successfully made the journey to the United States, the mother was unable to cross the border. The child’s father then refused to return the child to Mexico and the mother filed a petition pursuant to the Hague Convention. On appeal, the Second Circuit agreed with the district court’s ruling that the mother’s consent to the child’s removal was conditioned on the family living together in the United States. Acknowledging the effect of the unmet condition precedent, the Second Circuit affirmed that the last shared intent of the mother and father was that the child live in Mexico, the state in which she was habitually resident. In Hofmann, a mother and father lived in Canada with their two sons. Hofmann, 716 F.3d at 286. Family difficulties led the couple to explore relocation opportunities to New York. Shortly thereafter, the mother took the two sons on a trip to New York as the first step in their “permanent relocation” to New York. Although the family was in the process of relocating, the district court found that any consent to the children’s removal to New York, on the part of the father, was conditioned on the family living together in New York. Although “this condition may not have been expressly stated, it was understood by the parties,” the mother in particular. Shortly thereafter, the mother decided that she was unhappy in the marriage, sought a divorce, changed her children’s names, and found a home for her and the children. The district court found that at no point did she share any of this with the father of the children. Following their last vacation as a family, the mother told the father to meet her in New York under the guise of sending his children off for the first day of school. When he arrived, however, he was served with divorce papers. On appeal, the Second Circuit agreed with the district court in finding that the mother and father “had a shared intent to relocate to New York, but the extent to which that intent was shared was limited by [the father’s] conditional agreement that the relocation was to be accomplished as a family.” Before the relocation was complete, the mother “developed the unilateral intention to reside in New York with the children but without” the father. The mother’s “decision to retain the children in New York without their father ... precluded satisfaction of the condition on which [the father’s] shared intent was based.” 

          The court found that the facts here mirrored those of both Mota and Hofmann. As in Mota and Hofmann, it was the family’s intent to move and live in California together As in Mota and Hofmann, Petitioner consented to the initial removal of the Child from Israel to the United States. However, although perhaps not expressly stated, that removal was conditioned on the family living together, in California, for a short period of time. At no point was that conditioned satisfied. Thus, the Child continued to be wrongfully retained in New York in violation of Petitioner’s custody rights.

          In 2008, the Parties signed a financial agreement that was approved by court order. In 2009, the Parties entered into an agreement outlining the scope of the custody rights of the Parties in the event of a dispute., Neither agreement operated as a waiver of Petitioner’s custody rights or his rights under the Hague Convention.The 2009 Agreement was entered into prior to the birth of the Child. The third paragraph of the 2009 Agreement states: “If either of the parties decides that they are not interested in continuing their shared life, for any reason whatsoever, it is agreed between the parties that [Respondent] will be the parent with custody, and she may leave Israel and permanently reside abroad together with the daughter who is soon to be born and/or any other child who will be born to the parties in the future in any place that [Respondent] decides at her sole discretion.” Further, the fourth paragraph of the 2009 Agreement reads:“[Petitioner] undertakes not to object to and not to impede in any way the performance of clause 3 above, and he also commits not to undertake any proceedings, legal or otherwise, whether by himself or by someone on his behalf, whether in Israel or abroad, including proceedings under the Hague Convention, and including by means of a departure prohibition order, whether against [Respondent] or against the [Child] who is soon to be born to the parties and/or any other child who will be born to the parties.”
The Court held that while these clauses might be relevant and important in Family Court in Tel Aviv, the 2009 Agreement did not constitute a waiver of any sort in this proceeding. First, although it stated that it supersedes the 2008 Agreement, the 2009 Agreement was not approved by court order. In addition, there was no indication that Dror still consented to the terms of the 2009 Agreement or that the 2009 Agreement was not modified, either orally or otherwise, at some point during the nine (9) years of marriage following its enactment. The Court found that the conduct of the Parties indicated a modification to the 2009 Agreement. From 2009 onward, the family lived together, in Israel. They did so for the entirety of the Child’s life prior to her wrongful retention. She attended school, had friends, and was, by all accounts, doing very well. The Parties provided no evidence indicating the thought of moving the Child or separating as a family. Moreover, the Parties provided no testimony pertaining to discussions or conversations relating to the 2009 Agreement following their initial reconciliation. Furthermore, the validity and relevance of the 2009 Agreement was belied by Petitioner’s surreptitious conduct in this case. According to Respondent, she was acting within the terms of 2009 Agreement when she unilaterally moved to New York with the Child. Yet she still felt the need to move her family to California under the guise of a family relocation, enroll her Child in school, send misleading texts to her husband, and conceal from Dror that her actions were appropriate in accordance with the terms of their previously negotiated 2009 Agreement. The Court was not convinced. If Orna believed the 2009 Agreement to be binding, she would likely have told Dror at some point after she came to the realization that she wanted to leave. Booking plane tickets for the precise time Dror would be in the air, sending texts insinuating her and the Child’s presence in California, and leaving a lone note in an otherwise empty apartment were actions inconsistent with the belief that her actions were protected by the 2009 Agreement. For those reasons, neither the 2009 Agreement constituted a waiver of Petitioner’s rights in the instant case.

           The district court pointed out Article 13(a) of the Hague Convention creates an exception relevant to the case. A respondent may withstand a petition to return a child if:“[T]he person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; ...”To successfully make out a consent defense, a respondent “must establish by a preponderance of the evidence that Petitioner had the subjective intent to permit Respondent to remove and retain the child for an indefinite or permanent time period.” More specifically, the key to the analysis is “the petitioner’s subjective intent” – an inquiry that includes the nature and scope of the alleged consent. Moreno v. Casilio Pena, 2015 WL 4992005, at *11 (S.D.N.Y. Aug. 19, 2015) (quoting In re Kim, 404 F.Supp.2d at 516); see Mota, 692 F.3d at 117  (“[T]he nature and scope of the petitioner’s consent, and any conditions or limitations, should be taken into account.”). In other words, “it is important to consider what the petitioner actually contemplated and agreed to ...”. Chumachenko on Behalf of P.B. v. Belan, 2018 WL 6437062 (S.D.N.Y. Dec. 7, 2018). Here, the only evidence indicating consent was the 2009 Agreement prev. Orna presented no evidence that any consent allegedly bestowed by the 2009 Agreement was still valid in the instant situation. Respondent provided no indication that the Parties discussed the 2009 Agreement at any point following the birth of the Child. Further, even if Dror did consent to the removal of the Child, he did not consent to removal in such a nefarious manner. All of the testimony indicated that the move to California was a family affair, and that Respondent’s “revelation” did not occur until she was in California – long after the decision to move had been made. Validity of the 2009 Agreement aside, it could not be the basis for consent to the particularized and deceitful events that transpired in this case. Thus, Respondent had not satisfied her burden, and consent was not a defense to the Petition. 

Thursday, July 25, 2019

Vasquez v Acevedo, 2019 WL 3310334 (6th Circuit, 2019) [Colombia] [ Habitual Residence] [Petition denied]




In Vasquez v Acevedo, 2019 WL 3310334 (6th Circuit, 2019) the Sixth Circuit affirmed an order of the district court which denied the petition of Colombian father Edison Alberto Carvajal Vasquez (“Carvajal”) for the return of his one-year-old son, TCG, to Colombia.

Carvajal and Gamba were the unmarried parents of minor child TCG. All three were Colombian citizens. TCG was born in Medellín, Colombia, on October 6, 2014. Until the summer of 2016, TCG lived with Gamba in an apartment in Colombia owned by Gamba’s parents. Carvajal lived with his own parents, at least during the week. By the summer of 2016, Carvajal and Gamba had developed a plan for the family to travel to the United States. Carvajal and TCG were able to obtain tourist visas, but Gamba’s multiple visa applications were unsuccessful. Gamba then changed tactics, traveling to Mexico in July 2016 and hiring “coyotes” to smuggle her across the United States border. On August 7, she was discovered and detained by immigration authorities. Gamba claimed that Carvajal planned and funded the scheme, including wiring money to the coyotes in Mexico. Carvajal dissembled when asked about the wire transfers to Mexico and whether he knew about Gamba’s plan to cross the border, but he admitted that he at least had “suspicions” about her intentions. When Gamba was detained, Carvajal wired about $3,000 to Gamba’s sister, Kelly Chambers, to hire an immigration attorney for Gamba and to help her post bond. While Gamba was in immigration custody, on August 26, 2016, Carvajal continued on with the plan and flew with TCG to the home of Gamba’s sister and brother-in-law, Kelly and David Chambers, in Tennessee. He then returned to Colombia two days later, leaving TCG in their care. Gamba was released on bond about a month later, on September 30, and flew to Tennessee on October 13. She and TCG lived at the Chambers’ home for the next several months.  Carvajal came to Tennessee again on December 19, 2016, and stayed with Gamba and TCG at the Chambers’ home for a few weeks. On December 11, shortly before Carvajal arrived, Gamba claimed she received a call from a married Colombian woman named Luz Elena stating that Elena and Carvajal were in a relationship. In contrast, Elena testified that she had never been in a relationship with Carvajal and claimed that romantic emails between the two were planted by Gamba. When Carvajal arrived in December, he and Gamba reconciled, and Carvajal proposed marriage, which Gamba accepted. Carvajal left Tennessee on January 9, 2017, and, when he arrived in Colombia, he gave away Gamba and TCG’s possessions, according to Gamba and her mother. Carvajal claimed that TCG’s toys are still stored at his house.  After several months in Tennessee, Gamba traveled with TCG to Houston, Texas, for a February 2 immigration hearing. They stayed in Houston for about five months. TCG’s tourist visa expired sometime in February. Also, during February, Gamba broke off her engagement with Carvajal, apparently because she was again contacted by Luz Elena. On February 24, 2017, Carvajal filed a criminal complaint in Colombia against Gamba for the crime of arbitrary exercise of custody of an underage child. Gamba and TCG returned to Tennessee at the beginning of July, where they rejoined the Chambers’ household. Gamba filed an application for asylum for herself and TCG in the spring of 2018. Carvajal filed a petition under the Hague Convention in Tennessee on February 9, 2018, almost a year after Gamba broke off their engagement, alleging that Gamba had wrongfully retained TCG in the United States. 

The district court denied Carvajal’s petition, finding that TCG had not been wrongfully retained in the United States in February 2017. The court determined that the United States was TCG’s habitual residence on that date because the last shared intent of Carvajal and Gamba was that TCG live in the United States. In the alternative, the court concluded that the United States was TCG’s habitual residence because TCG had acclimatized to the country.

The Sixth Circuit affirmed. It found that the district court determined that the date of retention was February 24, 2017, which was when Carvajal filed a criminal complaint with Colombian authorities. Neither party challenged this date on appeal, so it adopted it as well.

The Court noted that the crux of the case was determining TCG’s habitual residence immediately prior to February 24, 2017. It pointed out that it used two standards to determine habitual residence. “The primary approach looks to the place in which the child has become ‘acclimatized.’” Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018). Under the acclimatization standard, “the court must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich v. Friedrich (“Friedrich I”), 983 F.2d 1396, 1401 (6th Cir. 1995). This approach is “generally preferred” because it preserves the child’s access to “her family and social environment.” Ahmed v. Ahmed, 867 F.3d 682, 688 (6th Cir. 2017). But it had also recently acknowledged the difficulty of applying the acclimatization standard to “especially young children who lack the cognizance to acclimate to any residence. In such cases, it looks to the parental-intent standard, that is, “the parents’ last ‘settled mutual intent’ for where their child would live.” Ahmed, 867 F.3d at 687 (quoting Gitter v. Gitter, 396 F.3d 124, 133, 135 (2d Cir. 2005)). The petitioner bears the burden to show habitual residence by a preponderance of the evidence under both the parental-intent and acclimatization standards. Id. at 692.

In this case, the district court determined that the parental-intent standard was more appropriate for TCG’s case, because TCG was only two years and four months old on the date of the allegedly wrongful retention. The court then concluded that TCG’s habitual residence was the United States, based on Carvajal and Gamba’s last shared intent.

The Court noted that the standard of review to apply to the district court’s choice of habitual-residence standard appeared to be unsettled under its precedent. It held that it did not need not resolve the issue because it found that the district court’s reliance on the parental-intent standard was not erroneous under either de novo review or a more deferential standard.

Under Ahmed, “it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence.” 867 F.3d at 690. How can a district court tell when a child lacks the necessary cognizance? In some cases, a child is so young or so old that no analysis of the child’s cognizance is necessary, by dint of common sense. The oldest age at which a court in this circuit had categorically rejected the acclimatization standard appeared to be fourteen months. On the other side of the equation, the Third Circuit has held that a child who is four years old “certainly has [the] ability” to “form meaningful connections with the people and places he encounters each day.” Whiting v. Krassner, 391 F.3d 540, 550–51 (3d Cir. 2004). Between those ages, however, lies the gray area of a child’s toddler years, during which time a child at some point develops sufficient cognizance to acclimatize to a country. Faced with such a case, a court must determine whether the evidence shows that a child is cognizant enough to acclimatize, which is most naturally proved by evidence that a child was actually acclimatizing, whether to the child’s current residence or to any past residences. Under its precedent, factors that tend to show acclimatization to a country include participation in academic activities, social engagements, and sports programs; appropriate fluency in the local language; and the formation of “meaningful connections with the people and places” of the country. See Robert, 507 F.3d at 996 (citing Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006)). Therefore, children who are cognizant enough to acclimatize to a country will be able to participate in a variety of acclimatizing activities, to form a sense of routine and environmental normalcy in a country, and to form relationships with people and places in that country. C.f. Whiting, 391 F.3d at 550.


In making its decision that the acclimatization standard was “of limited utility” in TCG’s case, the district court considered both TCG’s age and evidence of TCG’s actual acclimatization. TCG was two years and four months old on the date of wrongful retention. The record supported the district court’s determination that the parental-intent standard was more appropriate in TCG’s case. Gamba’s brother-in-law David testified that TCG would not be old enough to attend the “head start program” in their local Tennessee school district until the fall of 2018, about a year and a half after the date of the allegedly wrongful retention. Gamba’s sister Kelly Chambers testified that TCG did not begin to say words until December 2016, just two months before the date of retention. Facts like these show that it was not unreasonable to find that TCG’s youth and corresponding cognitive limitations would prevent him from systematically forming “ ‘meaningful connections with the people and places’ in a country.” Ahmed, 867 F.3d at 689 (quoting Robert, 507 F.3d at 996).  In sum, while TCG’s attendance in school or day care and in infant swim classes may be relevant to TCG’s ability to acclimatize, such attendance alone, without evidence that TCG was actively acclimatizing, did not persuade the Court that the district court was incorrect. Thus, under either de novo review or a more deferential standard, it found the district court correctly determined that the parental-intent standard was more appropriate for TCG’s case.

The district court found that the last shared intent of Carvajal and Gamba was that TCG live in the United States. The standard of review for the district court’s determination of habitual residence under either the parental-intent standard or the acclimatization standard is unambiguous: the court’s findings are reviewed for clear error. Taglieri, 907 F.3d at 405; Ahmed, 867 F.3d at 686; Robert, 507 F.3d at 995. Clear error review is “highly deferential,” and the district court must be affirmed “unless the fact findings ‘strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.’” In reviewing the district court’s conclusion, “[w]e must trust those with a ring-side seat at the trial to decide whose testimony is most credible and what evidence is most relevant.” Id. at 411. Credibility determinations were especially important in this case, where the bulk of the evidence took the form of testimony by Carvajal, Gamba, and their relatives and acquaintances. The district court’s opinion noted that weighing that evidence was “exceptionally difficult” because of “basic inconsistencies” in the testimony and because all but one witness testified by translator, and many by telephone. On the whole, the district court found Gamba’s story to be “inherently more consistent and plausible,” and her and her witnesses to be “more credible.” 

The Court observed that under the parental-intent standard, when the child is not cognizant enough to acclimatize in a particular country, the district court looks to “the parents’ last ‘settled mutual intent’ for where their child would live.” As the Ninth Circuit pointed out in Mozes [v. Mozes], 239 F.3d [1067] [ (9th Cir.2001) ], “[d]ifficulty arises, of course, when the persons entitled to fix the child’s residence no longer agree on where it has been fixed.” 239 F.3d at 1077. In such a case, if “the representations of the parties cannot be accepted at face value, ... courts must determine [habitual residence] from all available evidence.” Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009) (quoting Gitter, 396 F.3d at 135). In other words, the court must look to “external indicia” of the parents’ intent. Taglieri, 907 F.3d at 417 (Moore, J., dissenting). Under the parental-intent standard, Carvajal bore the burden of proving, by a preponderance of the evidence, that Carvajal and Gamba’s last shared intent was that TCG live in Colombia. The district court concluded that the parents’ last shared intent was that TCG live with Gamba in the United States: “Although it is unclear whether Carvajal ever really intended to move permanently to the United States, the court finds that he knew that Gamba intended to do so and that she intended to have her son with her.” The court based its conclusion on its factual findings that Carvajal voluntarily brought TCG to the United States to stay in the country with Gamba, that Gamba had always intended for TCG to live with her in the United States, and that Carvajal agreed with Gamba’s intentions until Gamba broke off their relationship in February 2017. Although Carvajal testified that he had always intended to bring TCG back to Colombia, the court found no evidence of any such plan. The Sixth Circuit held that the district court’s conclusions were not clearly erroneous. Gamba testified that she planned to stay in the United States permanently. Gamba’s desire to move to the United States, whether legally or illegally, was evidenced by her multiple unsuccessful visa applications and ultimate plan to cross the border covertly. Importantly, Carvajal knew about that desire when he brought TCG to the United Sates and left him in Tennessee. Carvajal almost certainly financed Gamba’s trip by paying “coyotes” to smuggle her across the Mexican border. Carvajal’s aunt, Diana Vasquez, testified that Gamba had long been “bedazzled” by the idea of living in the United States, so Gamba’s desire was clear to those around her. Even after Carvajal proposed marriage in December, he testified that Gamba told him she still wanted to remain in the country. Finally, when Carvajal testified that he thought TCG would be returning to Colombia in February 2017, he claimed that it was Gamba’s sister Kelly, and not Gamba herself, who would accompany TCG. Yet despite knowing Gamba intended to remain in the United States with TCG, Carvajal twice left TCG in the United States—first in August 2016 with Gamba’s sister, then in January 2017 with Gamba.

As for Carvajal’s alleged plans to bring TCG back to Colombia in January or for Kelly to bring TCG back in February before the expiration of his visa, the district court concluded that there was no evidence to support the existence of either plan. Viewing the record as a whole, it was clear from Carvajal’s actions that he acquiesced in Gamba’s plans for TCG to grow up in the United States. It did not find clear error in the district court’s determination that Carvajal and Gamba’s last shared intent was that TCG live in the United States with Gamba. Carvajal’s petition was therefore properly denied.

Because the parental-intent standard was the more appropriate standard for TCG’s case, and because the district court’s findings under that standard were not clearly erroneous, the Court did not not address the district court’s alternative findings under the acclimatization standard.

Wednesday, July 24, 2019

Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) [Italy] [Grave risk of harm] [undertakings]


        In Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) Respondent-Appellant Narkis Aliza Golan (“Ms. Golan”) appealed from an order granting Petitioner-Appellee Isacco Jacky Saada’s (“Mr. Saada”) petition for the return of the parties’ minor child, B.A.S., to Italy. the United States Court of Appeals, agreed with the District Courts habitual residence determination but held that it erred in granting Mr. Saada’s petition because the most important protective measures it imposed were unenforceable and not otherwise accompanied by sufficient guarantees of performance. The District Court’s March 22, 2019 order was v affirmed in part and vacated in part and remanded for further proceedings concerning the availability of alternative ameliorative measures.

  On June 13, 2014, Ms. Golan, a United States citizen then living in New York, and Mr. Saada, an Italian citizen and resident, met at a wedding in Milan, Italy. Approximately two months later, Ms. Golan relocated to Milan and moved in with Mr. Saada. The parties were married on August 18, 2015, and Ms. Golan became pregnant shortly thereafter. The couple’s only child, B.A.S., was born in Milan in June 2016. The couple “fought frequently,” and “Mr. Saada physically, psychologically, emotionally and verbally abused Ms. Golan.” Mr. Saada yelled at Ms. Golan, called her names, slapped her, pushed her, pulled her hair, threw a glass bottle in her direction, and, during a conversation with Ms. Golan’s brother, threatened to kill her. These incidents, many of which occurred in the presence of B.A.S., “were not sporadic or isolated ... but happened repeatedly throughout the course of the parties’ relationship.” Mr. Saada and Ms. Golan continued living together in Milan after B.A.S. was born. They secured for B.A.S. an Italian passport, medical coverage, identification cards, and a certificate of residence, and enrolled B.A.S. in a local daycare. With the exception of several trips abroad, B.A.S. lived continuously in Milan for the first two years of his life. In July 2018, Ms. Golan traveled with B.A.S. to the United States to attend her brother’s wedding. After the wedding, Ms. Golan elected not to return to Italy and moved with B.A.S. to a confidential domestic violence shelter in New York. In Fall 2018, Mr. Saada filed a criminal complaint against Ms. Golan and initiated civil proceedings, including custody proceedings, in Italy. He also commenced this action under the Hague Convention. 

        The District Court first concluded that Italy was B.A.S.’s habitual residence for the purposes of the Hague Convention. The District Court acknowledged that Ms. Golan had repeatedly expressed an intent to return to the United States, and that Mr. Saada was aware of this intent. In the District Court’s view, however, the totality of the circumstances, and, in particular, Ms. Golan’s conduct, “established B.A.S. as a[n] habitual resident of Italy.”  The District Court determined that Ms. Golan had established that repatriating B.A.S. to Italy would expose him to a grave risk of harm. It concluded that exposing B.A.S. to severe and continuing domestic violence of the type documented in this action could have significant adverse effects on his psychological health and development. 

        Nevertheless, the District Court held that a suite of conditions, or “undertakings,” would “sufficiently ameliorate the grave risk of harm to B.A.S.” and granted Mr. Saada’s petition subject to those conditions. The undertakings included, among others, requirements that Mr. Saada (1) give Ms. Golan $30,000 before B.A.S. is returned to Italy, for housing, financial support, and legal fees; (2) stay away from Ms. Golan; and (3) visit B.A.S. only with Ms. Golan’s consent.

The Second Circuit observed that in determining habitual residence, courts in this Circuit “inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared,” considering both “actions” and “declarations.” It has also cautioned that, at bottom, this inquiry “is designed simply to ascertain where a child usually or customarily lives.” It saw no error in the District Court’s conclusion that Italy was B.A.S.’s country of habitual residence. It agreed with the District Court that the parties’ actions demonstrated that Italy, where B.A.S. spent almost the entirety of the first two years of his life, was the country where he “usually or customarily lives.” Accordingly, it affirmed the District Court’s habitual-residence determination.

        Ms. Golan challenged the District Court’s decision to grant Mr. Saada’s petition notwithstanding its determination that repatriating B.A.S. would expose him to a grave risk of harm. The Second Circuit indicated that even where the abducting parent establishes that repatriating his or her child would expose the child to a grave risk of harm, a district court “is not necessarily bound to allow the child to remain with the abducting parent.” In exercising their discretion in such cases, district courts must “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” Insofar as certain of these measures might be undertaken by courts in the country of habitual residence, then “the exercise of comity that is at the heart of the [Hague] Convention” requires us “to place our trust in th[ose] court[s] ... to issue whatever orders may be necessary to safeguard children who come before [them].” However, “reviewing courts are free to enter conditional return orders” but “retain no power to enforce those orders across national borders.” In those instances, in which our courts lack jurisdiction to redress non-compliance, “even the most carefully crafted conditions of return may prove ineffective in protecting a child from risk of harm.” It concluded that  in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other “sufficient guarantees of performance.” The Court found that many of the undertakings the District Court imposed were unenforceable because they need not—or cannot—be executed until after B.A.S. was returned to Italy. This included several conditions that, under the circumstances, were essential to mitigating the grave risk of harm B.A.S. faced, namely, promises by Mr. Saada to stay away from Ms. Golan after she and B.A.S. returned to Italy and to visit B.A.S. only with Ms. Golan’s consent. The District Court’s factual findings provided ample reason to doubt that Mr. Saada would comply with these conditions. Under the circumstances, it was not convinced that these particular undertakings were sufficient to mitigate the undisputed grave risk of harm that B.A.S. faced if returned to Italy. It vacated the District Court’s order insofar as it granted Mr. Saada’s petition subject to the conditions enumerated therein.

        The Court found it appropriate to remand for further proceedings concerning the availability of alternative measures. It directed that on remand, the District Court must determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance. In doing so, the District Court may consider, among other things, whether Italian courts will enforce key conditions such as Mr. Saada’s promises to stay away from Ms. Golan and to visit B.A.S. only with Ms. Golan’s consent. It did not think that international comity precluded district courts from ordering, where practicable, that one or both of the parties apply to courts in the country of habitual residence for any available relief that might ameliorate the grave risk of harm to the child. So long as the purpose of such an order is to ascertain the types of protections actually available, and the district court does not condition a child’s return on any particular action by the foreign court, there is little risk that this “practice would smack of coercion of the foreign court.” Here, the District Court has already found that Italian courts are authorized by Italian law to enter “criminal and civil court orders of protection” and “orders of supervised visitation during the pendency of custody proceedings.” Although the Italian courts had not entered any such orders to date, this might be attributable in part to the parties’ failure to apply for relief, in the ongoing custody proceedings or otherwise. It directed that on remand, the District Court may consider whether it is practicable at this stage of the proceedings to require one or both of the parties to do so. The District Court may then take into account any corresponding decision by the Italian courts in determining whether there are sufficient guarantees of performance of protective measures that will mitigate the grave risk of harm B.A.S. faces if repatriated. As an initial matter, the District Court can attempt to revise certain of the undertakings it imposed in a manner that would render them directly enforceable, for example, by requiring Mr. Saada to comply with the condition before B.A.S. is repatriated. In addition, the District Court can use its “broad equitable discretion” to “request [] the aid of the United States Department of State, which can communicate directly with” the government of Italy to ascertain whether it is willing and able to enforce certain protective measures. Finally, the District Court can solicit from the party’s additional evidence concerning whether, and, if so, to what extent, Mr. Saada had undertaken to abide by any of the currently unenforceable conditions. 
 
The Second Circuit summarized its holdings with regard to undertakings as follows: (1) In cases in which a court has determined that repatriating a child will expose him or her to “a grave risk of harm,” unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other sufficient guarantees of performance. (2) Because the record before the District Court did not support the conclusion that there exist no protective measures sufficient to ameliorate the grave risk of harm B.A.S. faces if repatriated, remand for further proceedings is appropriate. 32) Where, as here, the safety of a minor is at risk, the District Court, if it deems practicable, may direct one or both of the parties to petition Italian courts for the imposition of any appropriate protective measures. The District Court may take into account any corresponding decision by the Italian courts in determining whether to issue an order of return.


Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019)[Mexico] [Age & Maturity Defense] [Petition denied]



In Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019) Petitioner Gabriel Alfaro Gutierrez requested that this Court enter an Order directing that the Parties’ minor child, G.A.A.Q., be returned to Mexico. He alleges that the child’s mother, Brenda Janeth Quintino Sandoval, wrongfully removed the child from Mexico sometime between October 27, 2017 and early November 2017. During the course of the trial, the Court took testimony from G.A.A.Q. in chambers, out of the presence of his parents and their attorneys. 

Mr. Gutierrez and Ms. Sandoval married in 2003, and lived in Monterrey, Mexico. Their son, G.A.A.Q., was born in November 2003, and would be sixteen in November 2019. The Parties separated in 2004 and never lived together again. They divorced in 2012. G.A.A.Q.  always lived with Ms. Sandoval. Following the Parties’ separation, by agreement, Mr. Gutierrez had visitation with G.A.A.Q; however, Mr. Gutierrez spent more time with G.A.A.Q. than was actually set forth in the Parties’ agreement. In August 2017, G.A.A.Q. told his father that he did not want to have any more visitation with him. G.A.A.Q. did not like the way that his father asked him questions about Ms. Sandoval’s personal life. Mr. Gutierrez and Mr. Gutierrez’s mother (G.A.A.Q.’s grandmother) also made G.A.A.Q. feel uncomfortable with comments about his weight and the food that he was eating. Ms. Sandoval brought G.A.A.Q. to the United States in November 2017, to live with her, her new husband, and G.A.A.Q.’s half-sibling. After consulting with her Mexican lawyer, Ms. Sandoval was under the impression that she could legally bring G.A.A.Q. to the United States. She did not make any effort to contact Mr. Gutierrez to let him know that she was moving G.A.A.Q. out of the country or to seek his input on the decision. Mr. Gutierrez had no idea where his child was, and went through an extended period, lasting until December 2018, of trying to find G.A.A.Q. Mr. Gutierrez was notified by G.A.A.Q.’s school that his son had been withdrawn from the school. A letter from the school shows the date of withdrawal as October 27, 2017. Mr. Gutierrez desperately searched for G.A.A.Q., and eventually concluded that G.A.A.Q. was in Nashville, Tennessee. He filed his Petition for Return of Minor Child to Petitioner on October 10, 2018. 

The district court found that G.A.A.Q. would be sixteen in November 2019. He attended a local Nashville high school, and recently completed ninth grade with all A’s. He had many friends at school. He got along well with his mother, stepfather, and half-brother, with whom he lived. He did not keep in touch with anyone in Mexico and did not want to return to Mexico.

The Court found that petitioner met his burden to prove a prima facie case of wrongful removal under the Hague Convention and ICARA. The Court found that Ms. Sandoval had not met her burden of proof to establish the well-settled defense or the grave risk of harm defense. 

The Court observed that Article 13 of the Convention gives the Court the discretionary power to refuse return of the child where the child objects and is of sufficient age and maturity that the objection should be taken into account by the Court. The Court must first determine whether the child has sufficient age and maturity, and then evaluate the child’s objection and determine that it is not the result of “brainwashing of the child by the alleged abductor.” 51 FR 10494-01, Hague Int’l Child Abduction Convention, Text and Legal Analysis, III(I)(2)(d); see also Neumann v. Neumann, 310 F. Supp. 3d 823, 838-39 (E.D. Mich. 2018). The explanatory report on the Convention states that “it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.’” Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law ¶ 30, in 3 Acts and Documents of the Fourteenth Session 426, 433 (1980); see also Neumann, 310 F. Supp. 3d at 839. The Court found that such was the case here. G.A.A.Q. would be 16 in just over four months. The Court spoke with him and took his testimony in camera, out of the presence of either parent or their attorneys. During its interview with G.A.A.Q., the Court found him to be alert, respectful, and intelligent. He exhibited an understanding of the witness oath, which he took, and then testified forthrightly and freely, answering the Court’s questions thoughtfully. Given that G.A.A.Q. was almost 16, and that he exhibited appropriate maturity in his interview and testimony, the Court found that he had the age and maturity required to have his views on the subject of return taken into account. G.A.A.Q. was very clear that he objected to returning to Mexico. He testified specifically as to aspects of return to Mexico that he objected to. He testified that he was no longer in touch with anyone in Mexico and that he would have to start a whole new life there. He further expressed that the thought of going with his father was very stressful, as he has come to dislike spending time with Mr. Gutierrez for specific reasons, including perceived criticisms of his appearance and Mr. Gutierrez’s practice of asking him questions about Ms. Sandoval’s personal life. He also felt that life was Mexico was dangerous. 
The Court also found that G.A.A.Q.’s testimony was not unduly influenced by Ms. Sandoval. The Court found that this defense has been established by a preponderance of the evidence. The establishment of the child maturity or child objection defense did not end the Court’s inquiry. A court retains the discretion to return a child, despite the establishment of an affirmative defense, if return would further the aims of the Convention. Friedrich II, 78 F.3d at 1067. In this case, the further required review did not alter the result.