In Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019) the district court granted the father’s petition for the return of the child to Mexico. Valentin Zarate Diaz (“Father”) and Laura Andrea Rios Ibarra (“Mother”) were the parents of Son V, a minor child.
The parties agreed to forgo an evidentiary hearing and instead submit this case on the briefs. Father and Mother were both citizens of Mexico. They had never been married. They are the parents of Son V, who was born in Mexico in February 2012. They “intermittently lived together for several months when Son V was an infant” but “have not lived together since September 2014.” Their relationship was “tumultuous.” Following their break-up, Son V resided with Mother (in a house owned by Father)2 but Father remained actively involved in Son V’s life.
On November 19, 2015, Father and Mother entered into an agreement addressing their respective rights concerning Son V (the “Agreement”), which contains the following clauses… (2) The parties agree that “the days of cohabitation with [Father] will be any day of the week within a prudent schedule for the child, provided that [Father] doesn’t come in an inconvenient state, and that he doesn’t interrupt the child’s chores,” and further agree that if either party has “an event that requires the child, they will have no inconvenient.” (3) “[T]he addresses where the child will reside will be [a particular house in Sonora, Mexico] where the child currently lives with [Mother].” Additionally, the Agreement contained a provision certifying that “everything relating to the present agreement, is su[b]mitted to the jurisdiction of the pertinent judge of this judicial district” and concludes with a joint request by Mother and Father for the Agreement to be “su[b]mitted to the Judge of First Instance in Family Matter ...for its revision and approval in the terms of the [laws of] the State of Sonora.” On August 23, 2018, Mother requested that Father sign a passport application for Son V to travel to the United States. Sometime between August 31, 2018 and September 3, 2018, Mother moved with Son V to the United States. Father did not consent to Mother’s removal of Son V from Mexico. Mother’s purpose in moving to the United States was to accept a job offer to work as a civil engineer at an engineering firm in Arizona.
On September 12, 2018, Father filed a “Motion to Enforce Agreement” with the family court in Sonora, Mexico. Among other things, Father argued in this motion that Mother had violated the third clause in their Agreement, which required Son V to reside at a particular home in Sonora, Mexico. Father also stated in the motion that “it is true that [Mother] can freely decide where she will live with my minor child” and argued that the violation of the third clause arose from Mother’s “refus[al] to give me true and necessary information of her whereabouts for me to exercise my rights as a parent.” On or about October 15, 2018, the Mexican family court denied the “Motion to Enforce Agreement” that Father had previously filed. The court’s rationale for denying the motion was that “considering the drastic change in circumstances, ([Mother’s] address), it is not materially possible to enforce the agreement regarding parenting time the way the moving party is requesting.” On October 17, 2018, Mother filed a “Notice of Relocation” with the Mexican family court. This notice explained that Mother had moved to the United States for “personal and professional reasons.” On October 18, 2018, Father filed a “Motion to Revoke” the order denying his motion to enforce. On October 23, 2018, the Mexican family court issued an order denying the “Motion to Revoke.” In this order, the court explained that it hadn’t denied Father’s previous motion for any merits-based reason—instead, it had denied the motion because Mother’s relocation to the United States meant that “it is not possible to effectuate the enforcement of the agreement...by virtue of the fact that the minor child no longer lives in the home where it was agreed he would be placed.” The court further clarified that Father’s “rights are preserved and he may exercise them in the appropriate procedure and form.” On July 9, 2019, Mother filed a “Motion to Modify Parenting Time with Our Minor Child” with the Mexican family court. In this motion, Mother described the Agreement as a document that “established parenting time between non-custodial parents and our child.”
The district court observed that to determine whether the removal/retention was “wrongful,” a district court must answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). If the Court answers these questions in the petitioner’s favor, the burden shifts to the party opposing the return of the child—here, Mother—to prove “by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies.” Id. § 9003(e)(2)(A).
The only disputed legal issue in this case concerned the third element of the Mozes test—whether Mother’s removal of Son V from his state of habitual residence (Mexico) on or around August 31, 2018 (the date of the removal) violated the “rights of custody” that were attributed to Father under the laws of the state of habitual residence. “The parties agreed that the only issue in dispute was the third question. As a result, the return of Son V was only mandated if rights of custody were e attributed to Father under the law of the habitual residence.
The Court noted that the seminal decision addressing the meaning of the term “rights of custody” under the Convention is the Supreme Court’s 2010 decision in Abbott v. Abbott, 560 U.S. 1 (2010) where the Supreme Court held that a ne exeat right is a right of custody, not a mere “right of access. A ne exeat right is a right to consent before the mother could take the child out of Mexico. The Court agreed with Father that the parties agreement established rights of custody. The Agreement’s key provision was its third clause, under which Mother and Father jointly agreed that “the address where the child will reside will be” the home owned by Father in Sonora, Mexico, which is the “place where the child currently lives with [Mother].” The necessary implication of this clause was that Mother was precluded from unilaterally moving Son V into a different residence within Mexico—let alone to a different country—without Father’s permission. If a ne exeat right constitutes a “right of custody” for purposes of the Convention, it follows that Father’s rights under the Agreement—which go further than a ne exeat right, because the Agreement implicitly prohibits even the intra-country relocation of Son V by Mother—is a “right of custody,” too.
The father also argued that the Mexican doctrine of patria potestas, or parental authority, granted him a right of custody by operation of law. “The doctrine of patria potestas has its roots in Roman law, where it conveyed absolute and despotic rights of a father over his children; today, in Mexico, the doctrine regulates relations between parents and children until the latter reach the age at which they must fend for themselves.” Gonzalez v. Preston, 107 F. Supp. 3d 1226, 1234 (M.D. Ala. 2015). Patria potestas “constitutes the ‘most comprehensive’ right that a parent can exercise over the person and property of his or her minor children.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 624 (W.D. Tex. 2012). It “establishes the parent’s bundle of rights over a minor child, one of which is formal custody, but it also includes the right to care for the child and make decisions about his or her life.” Preston, 107 F. Supp. 3d at 1234. The Mexican State of Sonora—which was the habitual residence of Son V at the time of his removal—codifies the doctrine of patria potestas in its Family Code (“the Code”). The Code defines patria potestas (in the Code, referred to as “parental authority” ) generally as “a set of rights and obligations granted and legally binding on parents, or grandparents where appropriate, to fulfill the obligations to feed, protect, and raise their descendants, and to appropriately manage their assets.” Code art. 308 More specifically, one who has patria potestas over a child is required “to protect and educate [the child] properly” and “observe the [child] and educate [the child] to obey the rules of social coexistence.” Code art. 317. That person also has “the faculty to admonish and correct, avoiding always cruel and unnecessary punishments.” The Court agreed with Father that the Agreement didn’t extinguish his patria potestas rights. In fact, the evidence submitted by both parties demonstrates that Father retains patria potestas rights over Son V. The Code explicitly provides that “[p]arental authority cannot be waived.” Code. art. 340. The Code also identifies various ways in which patria potestas can be lost or suspended—none of those include by a custody agreement. Code arts. 338, 339. Indeed, the Code states that “[w]hen parents of a born out of wedlock child separate,” as Father and Mother have done here, “both will continue to exercise [patria potestas]” even after an agreement on custody, child support, and visitation has been reached. Code art. 315.1.
The Court agreed with Father that patria potestas constitutes a right of custody under Sonoran law. See generally Gallardo v. Orozco, 954 F. Supp. 2d 555, 572-74 (W.D. Tex. 2013) (surveying Sonoran law before concluding that “Petitioner has rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico” and that these rights “gave Petitioner specific rights of custody as defined in the Convention”). The Code provides that “[w]hen parents of a born out of wedlock child separate, both will continue to exercise [patria potestas] but must agree on who will retain custody of the minor, as well as the way of administering child support and the right of the noncustodial parent to monitor and relate with the minor.” Code art. 315.1. A parent’s rights under patria potestas, therefore, must be more expansive than the rights to (1) physical custody, (2) the obligation to financially support the child, and (3) right to “monitor and relate with” the child, because both parents “will continue to exercise [patria potestas]” after agreeing on those three items.
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.
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.”).
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).
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.
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.
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.
