Palomo v Howard, 2019 WL 6682989 (M.D. North Carolina, 2019) [Spain] [Habitual Residence] [Comity] [Petition granted]

In Palomo v Howard, 2019 WL 6682989 (M.D. North Carolina, 2019) the court granted the Petition of Olga Rodriguez for the return of her minor child, J.H.R., to Spain.

Petitioner gave birth to J.H.R. in 2010 in Spain. Respondent was the father of the child.  Petitioner and Respondent were married in Spain in April 2010. In October 2010, Petitioner, Respondent, and J.H.R. moved to Greensboro, North Carolina. Petitioner told Respondent, in early 2014, that she wanted the family to move back to Spain. Respondent agreed. Petitioner and J.H.R. moved to Spain first in April 2014, and Respondent moved to Spain in October 2014 to join them. After Respondent moved to Spain, he did not live with J.H.R. and Petitioner. J.H.R. lived with Petitioner in Petitioner’s mother’s apartment during this time. On October 24, 2014, Petitioner initiated divorce proceedings in the Court of First Instance No. 27 of Madrid. The Spanish court tried to summon Respondent by telephone on April 27, 2016, for a hearing on Petitioner’s custody and divorce filing. When he refused to come, the court entered a procedural default. That court issued a ruling on May 20, 2016, granting Petitioner sole custody of J.H.R., along with a divorce. Respondent appealed the order, arguing that he was deprived of due process for failure to receive notice of the proceedings. On September 26, 2017, the Provincial Court of Madrid, the Spanish appellate court, annulled the custody order granting Petitioner sole custody and ordered further proceedings. The Provincial Court agreed with Respondent and declared that he “had been left defenseless” to those proceedings. The Provincial Court also found that, at the time of the 2014 Spanish custody and divorce proceedings, Petitioner knew that Respondent had initiated custody proceedings in Guilford County Superior court, and that she failed to tell the Provincial Court of these proceedings. This order, however, did not divest Petitioner of custody rights. While Petitioner was pursuing divorce in the Spanish courts, Respondent filed an ex parte temporary custody petition in the Guilford County Superior Court. The Guilford County Superior Court entered a Permanent Custody Order granting Respondent sole custody on July 1, 2015. In August 2018, J.H.R. had been living in Spain with Petitioner for four years. Petitioner and Respondent were engaging in custody negotiations. Respondent and Petitioner agreed in writing that J.H.R. would go on vacation with Respondent for two weeks. Respondent instead took J.H.R. to North Carolina.

Petitioner went to the Court of First Instance in Madrid and received an order on September 7, 2018, which stated that it was in the interest of the child not to illicitly transfer him or remove him from his habitual residence with his mother. This order further dictated that Petitioner would exercise care and custody of the child and prohibited the removal of the child from Spain without judicial authorization. On January 22, 2019, Petitioner filed a Request for Return Application under the Hague Convention with the Central Authority for Spain. On June 18, 2019, the Court of First Instance No. 27 of Madrid issued an order concerning the return of J.H.R. to Petitioner. In that order, the Spanish court held that Respondent’s transfer of J.H.R. to Greensboro, North Carolina, constituted an illicit transfer in violation of Article 3 of the Hague Convention of 1980. The Spanish court found that Petitioner was exercising legitimate custodial rights over J.H.R. at the time Respondent took the child to the United States. The Spanish court also found that J.H.R.’s habitual residence was Madrid, Spain, where Petitioner had exercised lawful custody since 2014, “without opposition from the father,” that J.H.R. was enrolled in school, that Respondent “did not present a claim for restitution in the year that he was aware of the minor’s whereabouts,” and that Respondent lived in Madrid. On August 30, 2019, Petitioner filed the Verified Petition, seeking return of J.H.R. to Spain. 

The district court agreed with Petitioner that J.H.R.’s habitual residence was Spain at the time Respondent took him. It noted that as the Fourth Circuit stated in Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001), habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward.” (quoting Friedrich, 983 F.2d at 1401). “This is a fact-specific inquiry that should be made on a case-by-case basis.” Importantly, “a parent cannot create a new habitual residence by wrongfully removing and sequestering a child.” “Federal courts have developed a two-part framework to assist in the habitual residence analysis.” Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009). First, the court must determine “whether the parents shared a settled intention to abandon the former country of residence.”  (Mozes v. Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001)). Second, the court determines “whether there was ‘an actual change in geography’ coupled with the ‘passage of an appreciable period of time, one sufficient for acclimatization by the [child] to the new environment.’” Id. (quoting Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir. 2007)). The Fourth Circuit has adopted the Ninth Circuit’s framework for determining parental intentions in Hague Convention cases, due to the “[d]ifficulty [that] arises ... when the persons entitled to fix the child’s residence no longer agree on where it has been fixed—a situation that, for obvious reasons, is likely to arise in cases under the Convention.” Maxwell, 588 F.3d at 251.

The Court rejected Respondents argument that J.H.R.’s habitual residence was North Carolina, and his reliance upon  Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) and Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013). In Mota, the father traveled from Mexico to New York to find work, while the child and the mother remained in Mexico. The parents had the child smuggled into the United States, where she lived with her father. The mother, however, repeatedly and unsuccessfully tried to gain entrance into the country. The mother then filed a Hague petition in the United States. The Second Circuit affirmed the district court’s holding that Mexico was the child’s habitual residence, stating, “[the mother]’s intention that [the child] live in the United States only if she, as mother, were able to join [the child] there is dispositive of our determination of [the child]’s habitual residence.” The Second Circuit further noted that “[w]ere [the mother] unable to join her daughter in America, [the child]’s stay would be temporary, and the daughter would rejoin her mother in Mexico.”  Hofmann applied the holding in Mota to a situation involving a Canadian father and an American mother who had two children in Canada. Hofmann, 716 F.3d at 285. In August 2011, the respondent mother moved with the two children to New York to be near her family, as well as to begin the family’s relocation process. During this time, the petitioner father stayed in Canada while periodically visiting the rest of the family in New York. The petitioner and respondent opened up a joint bank account in New York in September 2011, and their oldest child began attending school in New York at around the same time. The district court noted, critically, that the parties “had not reached the unequivocal decision to relocate to New York” on the date the mother moved the children to New York. The district court finally found that the parties believed that their relocation to New York was predicated on them doing so as a family. The court credited both petitioner and respondent’s testimony on this point, and that respondent’s belief “was consistent with [his] other actions including his institution of this Hague Convention proceeding immediately after he was served with divorce papers.” 

Petitioner contended J.H.R.’s habitual residence was Spain, and Respondent contended that J.H. R’s habitual residence did not change from North Carolina when they moved to Spain in 2014. Petitioner, Respondent, and J.H.R. all lived in Spain from 2014 to 2018. Considering the factors laid out in Maxwell led the court to conclude that J.H.R. was acclimated to Spain. It was plain to the court the family as a unit manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move.” Maxwell, 588 F.3d at 251. Respondent admitted at the trial that it was their intent to remain in Spain, in his view, as husband and wife. The factors led the court to conclude that Petitioner met her burden of proving by a preponderance of the evidence that the last shared parental intent was to make Spain J.H.R.’s habitual residence, either as a family or not. Moreover, even if Petitioner thwarted the intent to live in Spain as a family, and the last shared parental intent was for the United States to be J.H.R.’s habitual residence, as Respondent claimed, the court distinguished this case from the fact patterns of Mota and Hofmann. In contrast to the petitioner in Mota, Respondent here was able to enter Spain; he was not barred from joining J.H.R. in the country. Mota involved a “stranded parent,” whereas the present facts did not indicate a case of a stranded parent who cannot enter the country to be with the child; Respondent admitted that he lived in Spain for four years, saw his son, and gained Spanish residency as the father of a Spanish national. Mota was inapplicable to the facts in this case. The Court acknowledged that the present case and Hofmann bear similarities. In both, mothers went to new countries with their children, followed by fathers whom the mothers promptly divorced. However, even taking Respondent’s view of the facts, there was at least one material fact distinguishing the two cases: Respondent did not file his own Hague petition once he realized his wife wanted a divorce and that the intention of living in Spain as husband and wife was thwarted. Unlike the respondent father in Hofmann, who immediately filed Hague Convention proceedings upon being served with divorce papers, Respondent chose the route of inaction under the Hague Convention. He never filed a Hague petition. Instead, he lived in Spain for four years until he engaged in self-help and illegally removed his child in conscious disregard of a contract he had signed, which is precisely what the Hague Convention was meant to prevent. See Miller, 240 F.3d at 401 n.13.
 Hofmann was not applicable to the facts here. If Respondent wanted to avail himself of the thwarted intent defense as stated in Hofmann, Respondent should have filed a Hague Petition in 2014, not waited four years before absconding with his child to another continent.

Because Spain was J.H.R.’s habitual residence, Spanish law guided as to whether J.H.R.’s removal was in violation of Petitioner’s custody rights. The Fourth Circuit has deferred to a foreign court’s determination that the left-behind parent was exercising custody, on the grounds that the court’s determination was reasonable and that the respondent failed to provide any reason to question the foreign court’s decision. Miller, 240 F.3d at 400–01. The Fourth Circuit’s analysis in Miller was instructive. As in Miller, there were dueling custody orders here – Petitioner received an order for full custody from the Spanish courts, and Respondent received an order for full custody from the Guilford County court. The June 18, 2019 order from the Spanish Court of First Instance concluded that Petitioner had custody rights at the time of the removal. This court considered the Spanish court to be a competent judicial body, and that court determined that Petitioner was entitled to custody of J.H.R., despite the North Carolina order, at the time Respondent removed J.H.R. from Spain.  Respondent had not provided “any authority from [Spain] undermining this decision or any other reason to question the [Spanish] court’s interpretation of the law of its own country.” The court saw no reason not to defer to the Spanish court’s findings. The court concluded that Petitioner had valid custody rights, based in either the June 18, 2019 Spanish order or, alternatively, in Spanish civil law, and therefore found that Petitioner demonstrated by a preponderance of the evidence that the second prong was satisfied. Here, Petitioner was clearly exercising her custody rights. Petitioner therefore established a prima facie case of wrongful removal under the Hague Convention.

The Court rejected Respondents defenses. Respondent raised the defense of unclean hands.  “Unclean hands” is not a supported defense to a Hague Petition.” Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir. 2010) . The Fourth Circuit has also stated that the doctrine of equitable estoppel — an equitable remedy like the doctrine of unclean hands — is inapplicable in Hague Convention cases. Katona v. Kovacs, 148 F. App’x 158, 161 (4th Cir. 2005). 

The Court rejected Respondents argument that foreign judgments are not entitled to full faith and credit. “[T]hough foreign judgments are not entitled to full faith and credit, comity is at the heart of the Hague Convention.” Smedley v. Smedley, 772 F.3d 184, 189 (4th Cir. 2014) American courts will thus “normally accord considerable deference to foreign adjudications as a matter of comity.” Miller, 240 F.3d at 400. [W]e may properly decline to extend comity to the [foreign] court’s determination if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Smedley, 772 F.3d at 189 (quoting Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir. 2009)) This court extended comity to the Spanish court’s June 18, 2019 custody decision.

The Court rejected Respondent’s claim that the doctrine of res judicata prevented Petitioner from bringing her Hague petition. This argument flies in the face of the purposes of the Hague Convention. Holder v. Holder, 305 F.3d 854 (9th Cir. 2002). It also rejected Respondent’s contention that the Rooker-Feldman doctrine bared the court from adjudicating Petitioner’s Hague petition. The Rooker-Feldman doctrine does not apply to Hague Convention cases. Silverman v. Silverman, 338 F.3d 886, 895 (8th Cir. 2003); Mozes, 239 F.3d at 1085 n.55. 

The Court rejected the argument that J.H.R. wished to stay in North Carolina with Respondent, that he was “well settled” in the United States, and that it was in his best interest to stay in North Carolina. The court found that the “well settled” defense may not be asserted here. This defense may be asserted only when an “action [is] not commenced within one year of the abduction.” Miller, 240 F.3d at 399. Here, Petitioner filed her Hague petition within one year and thus this defense was inapplicable. Also, a after conducting an in-camera interview with J.H.R., the court found that J.H.R. had not reached an age and degree of maturity such that it was appropriate to consider his opinions as to where he wanted to live, nor did J.H.R. express a preference for one parent over the other. 

Hart v Anderson, 2019 WL 6253248 (D. Maryland)[France] [Habitual residence] [Grave risk of Harm] [Petition granted]

In Hart v Anderson, 2019 WL 6253248 (D. Maryland) the Court granted the petition of Markku Toryalai Hart for the return of his children to France after his wife, respondent Sally Belco Anderson brought them to the United States without Hart’s consent. 

Hart, a dual citizen of the United States and United Kingdom, and Anderson, a U.S. citizen, first met in the spring of 2010 in Bamako, the capital of the African nation of Mali. They commenced a relationship that summer and began cohabitating in August of that year. Both parties had significant connections to Mali, When the parties met, Anderson had just moved to Mali from Virginia and begun teaching preschool at the American International School of Bamako. Hart was a self-employed consultant. Hart has served as a contractor for international organizations including the World Health Organization, UNICEF, and PATH, which have typically retained him for contracts that have lasted less than one year in nations including the Maldives. In the summer of 2011, Hart took Anderson for the first time to a house owned by his mother in Usinens, France.Hart and Anderson married in March 2012 and had their first child, A.M.A.H, the following month. Due to difficulty obtaining prenatal care in Mali, the parties decided that Anderson would travel to Indiana and stay with Hart’s mother to have the child. Hart arrived there after Anderson, who stayed with Hart’s mother from December 2011 through approximately April 2012. The family was unable to return to Mali immediately after A.M.A.H. was born because of a military coup, but returned to Bamako after approximately six months. Hart, Anderson, and A.M.A.H. visited the Usinens House again in the summer of 2013. In August 2013, Hart began a contract with UNICEF that required him to reside in Mali for three years on consecutive 11-month contracts with breaks of one to two months in between. In the same period, Anderson became pregnant with the couple’s second child, E.S.A.H., and proactively traveled to Virginia in January 2014 to stay with her parents to have the child, who was born in March 2014. Hart came to Virginia for two to three weeks around the birth, but returned to Mali soon after. Two months later, Anderson and the children returned to Mali and lived with Hart 

There was no serious dispute regarding Petitioner’s claim that he was exercising his custodial rights at the time the children were removed, and that the removal breached those custody rights. Hart has met his burden on those prongs by submitting an unrebutted affidavit of a French attorney that described relevant provisions of French law and the custody rights that they established for Hart. As for their exercise, the Fourth Circuit has adopted a test that directs courts to “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Bader, 484 F.3d at 671 (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir. 1996)). Given that Hart was cohabitating continuously with Anderson and the children, his exercise of custody rights under this test could not be disputed. 

The Court’s analysis focused on whether the children were habitually resident in France, at the time of removal. Federal courts have developed a two-part framework to assist in the habitual residence analysis. Under this framework, the first question is whether the parents shared a settled intention to abandon the former country of residence. The second question under this framework is whether there was ‘an actual change in geography’ coupled with the ‘passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment. In cases where there is a dispute regarding a child’s habitual residence, ‘the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence. Maxwell, 588 F.3d at 252 (alteration in original) (quoting Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir. 2005)). Courts must examine the “subjective intentions of parents to determine whether the parents shared an intent to adopt a new country of residence for their children.”  “Federal courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence.” 

The court found that the habitual residence of the children was France before Anderson removed them to the United States. Anderson contended that the Petition had to be denied because the children were habitual residents of either Mali or the Philippines at the time Anderson took them to the United States, or possibly had no habitual residence at that time. Significantly, the Court noted that Mali is not a party to the Hague Convention, and the Convention is not in force between the United States and the Philippines. Hart’s prima facie case therefore turned on whether he met his burden to show that France was the children’s habitual residence when they were taken to the United States on July 16, 2019.

As an initial matter, the Court was unpersuaded by Anderson’s alternative argument that the children had no habitual residence at the time of removal. It was quite clear that Hart and Anderson’s family can be fairly described as nomadic, but the case law that Anderson cited to claim that a child may have no habitual residence only describes children moved between countries shortly after their birth. See Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006); Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003); see also Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004). Anderson pointed to no authority, nor was the Court aware of any, that contemplates extending this concept beyond very young children in that specific situation. 

The Court concluded that France was the children’s habitual residence when Anderson took them to the United States on July 16, 2019. The two-part habitual residence framework summarized by the Fourth Circuit in Maxwell produced the conclusion that the parties abandoned Mali for France in 2016 but did not abandon France for the Philippines in 2018. Hart and Anderson both testified that they jointly made the decision to leave Mali in January 2016 because of security concerns and the expiration of Hart’s employment contract. They considered a move to the United States but decided against it. They instead together chose to bring their children to the Usinens House in France where they could live rent-free and enroll the children at the local Ecole Primaire de Challonges. Crucially, the parties left no belongings in Mali, selling or giving away their furniture and their car and shipping the remaining items to the Usinens House. The parties both testified that while they discussed someday returning to Mali if it became more politically stable, they had no specific plans or intentions to return there when they departed. Plainly, Hart and Anderson “shared a settled intention to abandon” Mali when they left for France in 2016. Maxwell, 588 F.3d at 251.

The Court turned to whether France became and remained the habitual residence of the children, despite the time spent in the Philippines, and answered that question in the affirmative. First, the Court found sufficient evidence to establish that the parties intended France to be the children’s habitual residence.The seven factors identified by Maxwell for determining a shared, settled intent did not overwhelmingly indicate shared intent to remain in France, but this was an unusual case of a highly nomadic family that never set down roots deeply in any one place. 

Article 13(b) of the Hague Convention establishes an exception that Anderson asserted here. Under that exception, “the Court ‘is not bound to order the return of the child’ if the respondent can establish by clear and convincing evidence that ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ This defense, however, “is a narrow one,” Miller, 240 F.3d at 402, and is interpreted and applied in that manner “[t]o avoid circumventing the underlying purpose of the Hague Convention.” Luis Ischiu, 274 F. Supp. 3d at 350 (citing Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007)).

Importantly, the respondent ‘must show that the risk to the child is grave, not merely serious. The potential harm to the child must be severe, and the ‘[t]he levels of risk and danger required to trigger this exception has consistently been held to be very high.’” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) The risk must be more than the trauma associated with uprooting and moving the child back to the country of habitual residence. Luis Ischiu, 274 F. Supp. 3d at 350. The exception “typically applies to situations involving sexual abuse, significant physical and verbal abuse of the child, or domestic abuse of a spouse in the presence of the child.” Kovacic v. Harris, 328 F. Supp. 3d 508, 520 (D. Md. 2018) “It does not apply to allegations of ‘poor parenting’; it is not the court’s role to ‘determine whether one parent would be better than the other, or whether the environment offered by Respondent is superior to the environment offered by Petitioner.

Anderson asserted that returning the children to France would expose them to a grave risk of harm because Hart abused her in their presence. While the Court in no way condoned Petitioner’s behavior and treatment of Respondent, in light of the narrowness of the grave risk of harm exception, the clear and convincing evidentiary burden that Anderson must meet, and the relative lack of evidence that she put forth demonstrating abuse of the children or abuse of her in front of the children, the Court found that the exception does not apply. To begin, there wass no evidence and Anderson did not allege, that Hart ever subjected either of the children to abuse or violence of any kind. Almost, the children were only present for one of the physical altercations between Hart and Anderson – a January 2019 incident in the Philippines when Hart “dragged” Anderson out of bed – and it was uncontested that they were not awake until after the physical contact had ended. That rendered this case much more comparable to those in which a grave risk of harm was not found, despite evidence of a father’s physical abuse of his children’s mother. For example, in Souratgar v. Lee, the Second Circuit affirmed a district court’s finding that no grave risk of harm existed where the father repeatedly kicked, slapped, grabbed, and hit the mother, and engaged in shouting and offensive name-calling, but never in the child’s presence. 720 F.3d at 100, 104–05. Similarly, the Tenth Circuit in Gil-Leyva v. Leslie affirmed a finding that no grave risk existed where the father slapped and shoved the mother several times, once choked her with his hands, and threw things, but was never physical toward the children aside from a small number of spankings, and never abused the mother in front of the children except for occasionally slapping her with force on her buttocks. 780 F. App’x 580, 590– 91 (10th Cir. 2019). The court found that evidence was deeply concerning and would be relevant in custody proceedings in the courts of the children’s country of habitual residence but was insufficient to prove that a grave risk of harm would exist if the children were returned there. Likewise, here, Respondent did not establish by clear and convincing evidence that granting the Petition would expose the children to a grave risk of physical or psychological harm. Nor did Anderson’s testimony that Hart was a neglectful father who did not and cannot adequately care for the children. That is an inquiry properly reserved for custody courts. Alcala, 826 F.3d at 171. Based on the Court’s observations, Respondent’s concerns for her husband’s use or abuse of alcohol and the anger it appears to cause in him were well-founded. But, given the purposes of the Hague Convention, moving his children to another country was not an appropriate way to “get his attention,” which she acknowledged was her primary objective. Her words also undercut the notion that she genuinely perceived that the children would be subject to a grave risk of harm if returned to France.

Stone v. Stone, 2019 WL 6790500 (D. New Jersey, 2019)[Israel] [Habitual residence] [Wrongful removal] [Petition denied]

In Stone v. Stone, 2019 WL 6790500 (D. New Jersey, 2019) the District Court denied Petitioner Yerucham Stone’s September 12, 2019 petition for the return of his three minor children to Israel.

Petitioner and Respondent were both United States citizens who were born in New Jersey. Both parties and the Minor Children were Orthodox Jews. Nearly all of the parties’ close familial relatives lived in the United States. Petitioner iwas a Talmudic scholar who began studying in Israel in or around 2010. Petitioner and Respondent met in Israel in August 2013, and married in a religious ceremony in New York on December 5, 2013. The couple had three minor children: D.S., age 5; R.S., age 3; and M.S., age 1. Although the Minor Children were born in Israel, they were solely citizens of the United States. Throughout the duration of their marriage, the parties primarily resided in Israel and made frequent return trips to the United States. 

In or around August 2018, Petitioner signed a five-year lease on an apartment. The parties subsequently invested the equivalent of approximately $10,000 to renovate the apartment. Petitioner entered Israel pursuant to an A2 student visa, which expired in 2023. Respondent, as the spouse of an individual present on an A2 visa, was permitted to remain in the country on an A4 accompaniment visa. Because Petitioner was present in Israel on a student visa, neither he nor Respondent was legally permitted to work in the country. The parties painted vastly different pictures of life in Israel. Respondent testified there were several times when the family could not afford to buy food for the Sabbath. Respondent alleged that Petitioner “began exercising more and more control over [her], refusing to give [her] any funds, or ... allow [her] to buy any clothing” and also described a general feeling of isolation. Respondent and the Minor Children had great difficulty communicating in Israel because they only spoke English and did not speak Hebrew.
When the parties traveled within the country, they primarily did so either on foot or via public transportation because they did not own a car. In February 2019, Respondent told Petitioner that a family emergency required her to return to New Jersey. Respondent testified that she fabricated the story because she “was pretty much sure that [Petitioner] would not allow [her] to leave if [she] were to tell him the truth of why [she] was leaving.” 

On February 23, 2019, Respondent flew to the United States, along with M.S., on roundtrip tickets, with a stated return date of March 7, 2019. Upon Respondent’s arrival the parties engaged in a telephone conversation wherein” Respondent asked Petitioner to travel to the United States so the two could share “vacation time” together. On March 14, 2019, Petitioner, D.S., and R.S. flew to the United States on roundtrip tickets, with a planned return date of April 30, 2019. Petitioner. D.S., and R.S. never used the return tickets. 

On or about March 24, 2019, once all five members of the family were present in New Jersey, Respondent informed Petitioner that she would not return to Israel. Petitioner testified that after this pronouncement, he never agreed to remain personally in the United States, nor did he explicitly agree that the Minor Children would remain in the United States. The Court found Petitioner’s testimony on this subject to be credible. Respondent further testified that while she knew Petitioner preferred to live in Israel, she “thought he decided to put our family as a preference before his preference of living in Israel.” The Court also found Respondent’s testimony to be credible. The Court, nevertheless, found that Petitioner’s subsequent actions demonstrated his willingness to remain in the United States and vitiated any explicit opposition he may have previously expressed.

On or about March 25, 2019, D.S. began attending kindergarten in Lakewood, New Jersey. On or about March 28, 2019, R.S. began attending Rivkie Schuster Play Group. Petitioner began attending lectures on the Talmud in Lakewood. New Jersey. During their time in the United States, until or around May 14, 2019, the parties primarily lived in the basement of Respondent’s brother, in Toms River, New Jersey. In April 2019, the parties executed a month-to-month lease on an apartment in Lakewood, New Jersey to begin on May 14, 2019. On or about April 12, 2019, Petitioner submitted an application to the appropriate New-Jersey state entities for Medicaid and other benefits. Petitioner averred on the application forms that he, Respondent, and the Minor Children were all residents of New Jersey. 

At some point during the Spring of 2019, Petitioner sought to secure a position at the Kollel. On May 5, 2019. Petitioner began studying at Yeshivas Be’er Yitzchok in Elizabeth, New Jersey. In or around May 2019, Petitioner spoke with Rabbi Sruly Blobstein about potentially securing a job for Respondent. Petitioner informed Rabbi Blobstein that Respondent had told him she did not wish to return to Israel. On or about September 5, 2019, D.S. began another year of kindergarten at Meoros. On September 12, 2019, Petitioner filed the petition. On October 17. 2019, Petitioner served Respondent with a copy of an Israeli Custody Complaint, filed in Family Court in Israel seeking a custody determination by that court. 

The Court noted that the Third Circuit has articulated four considerations relevant to determine whether a removal or retention was wrongful. Courts should consider: (1) when the removal or retention at issue occurred, (2) the child’s place of habitual residence immediately prior to the removal or retention, (3) whether the removal or retention violated the petitioner’s custody rights, and (4) whether the petitioner was exercising those rights at the time of removal or retention. Baxter, 423 F.3d at 368; see also Mozes, 239 F.3d at 1070. The date of removal or retention “establish[es] the relevant date of [the children’s] habitual residence for purposes of the Convention.” Karkkainen, 445 F.3d at 290. “[R]emoval refers to the parent’s physical taking of the child out of the country; [] retention refers to the parent’s keeping the child out of the country.” De La Vera v. Halguin, No. 14-4372, 2014 WL 4979854, at *6 (D.N.J. Oct. 3, 2014) (citing Baxter, 423 F.3d at 369).  

 “The inquiry into a child’s habitual residence is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case. In the Third Circuit, a child’s habitual residence is the place “where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” Feder, 63 F.3d at 224. Courts balance the “child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.” “The first step towards acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Maxwell v. Maxwell 588 F.3d 245, 251 (4th Cir. 2009). When determining whether a change has occurred, courts will consider whether there has been “an actual change in geography” and a “passage of an appreciable period of time, one sufficient for acclimatization” by the children to the new environment. Papakosmas v. Papakosmas, 483 F.3d 617. 622 (9th Cir. 2007) (quoting Mozes, 239 F.3d at 1078)

Petitioner argued that Respondent wrongfully removed M.S. to the United States on February 23, 2019, when she traveled to New Jersey after lying to Petitioner about the reason for her trip. M.S. was one year old and had lived nearly his entire life in Israel, except for one trip to the United States. The Court, therefore, found M.S.’s habitual residence immediately preceding his removal to the United States was Israel. Respondent traveled with M.S. from Israel to the United States on February 23, 2019. The date of the alleged wrongful removal as to M.S., therefore, was February 23, 2019.

The critical inquiry for the analysis was whether the removal was “wrongful.” Respondent’s misrepresentation as to her personal impetus for the trip, alone, did not constitute a wrongful removal. See, e.g., Roche v. Hartz, 783 F. Supp. 2d 995, 1002 (N.D. Ohio 2011) (finding respondent-mother’s use of “misrepresentation to induce [petitioner-father] into agreeing to the trip” did not constitute a wrongful removal). On February 27, 2019, Petitioner traveled to the United States and met with Respondent. Petitioner never alleged Respondent denied him access to M.S. during this time. On March 7, 2019, Petitioner left M.S. in New Jersey with Respondent and returned to Israel. At no point during this time period, nor during the months preceding August 22, 2019, did Petitioner express to Respondent that he no longer consented to M.S.’s continued habitation with her in New Jersey. Nor did Respondent prevent Petitioner from exercising his legal custody rights. The Court, accordingly, found that as of February 23, 2019, Petitioner’s custody rights were not breached. The Court, therefore, found that M.S. was not wrongfully removed from Israel.

 Petitioner argued that by the time the Petition was filed, the “[Minor Children] had been definitively wrongfully retained in the United States [for] approximately four and one [-] half months.” Petitioner’s assertion would place the date of wrongful retention at some time towards the end of April or early May 2019. This date, however, conflicted with Petitioner’s Israeli Family Court Filing. Furthermore, this assertion conflicted with the actions taken by Petitioner subsequent to the alleged wrongful retention. A child is wrongfully retained on “the date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof.” Blackledge, 866 F.3d at 179. Here, although Petitioner may have expressed a desire to return to Israel, he equivocally communicated to Respondent that he no longer consented to the Minor Children’s habitation with Respondent in New Jersey. The Court found, then, that the date of retention was not until August 22, 2019, when Respondent took the Minor Children from the Lakewood Apartment to Menachem Leibowitz’s Home, that Petitioner withdrew his consent for the Minor Children’s co-habitation with Respondent. Accordingly, for the purposes of the habitual residence analysis, the relevant date was August 22, 2019. See Karkkainen, 445 F.3d at 290 (holding the date of retention establishes the relevant date for determining a child’s habitual residence, for purposes of the Hague Convention); see also Blackledge, 866 F.3d at 179 (holding that because the petitioner never “clearly and unequivocally withdrew his prior consent,” the date of retention was the date the petition was filed).

Petitioner asserted that there was never a shared intent between the parties to abandon Israel as the Minor Children’s habitual residence. Petitioner’s argument was unconvincing. The sum total of his actions, considered along with the acclimatization of the Minor Children, led the Court to conclude that as of August 22, 2019. the Minor Children’s habitual residence was New Jersey. When a move includes “a degree of settled purpose” courts have found that a child’s habitual residence has changed. This “settled purpose” may be for a limited period of time and does not require an intention to stay in the new location indefinitely. Feder, 63 F.3d at 223-24. Here, while the Court agreed that the Minor Children’s presence in New Jersey was initially intended, at least by Petitioner, to be for a limited period of time, their continued presence in the state, coupled with numerous actions taken by the parties, including Petitioner, constituted a sufficient degree of settled purpose to change their habitual residence. After conducting a fact-intensive analysis, the Court found that there was shared parental intent to remain in New Jersey, for at least a period of time. There was, therefore, shared parental intent to abandon Israel as the Minor Children’s habitual residence and establish New Jersey as their new habitual residence.

The Court balanced the “shared parental intent” with the “acclimatization of the child,” in reaching its determination. See Whiting, 391 F.3d at 546. Finally, because R.S. was three years old, the Court considered both the “very young child” standard articulated in Karkkainen, and the acclimatization factors it considered for D.S. As with M.S., there was a shared parental intent for R.S. to remain in New Jersey for at least a limited period of time. Turning to the acclimatization factors, considering R.S.’s young age and her rapid acclimation to an educational environment where she was able to speak the language, the Court found R.S. had developed a set routine and acquired a sense of environmental normalcy. Due to these factors, the Court found R.S.’s habitual residence on August 22, 2019 was New Jersey. The Court weighed both the evidence of shared parental intent and the acclimatization of the Minor Children, and found the Minor Children were habitually resident in New Jersey on August 22, 2019. Because the Court found the Minor Children were habitually resident in New Jersey on the date of the alleged retention, the Court found Petitioner’s custody rights were not breached and, therefore, the retention was not wrongful under the Hague Convention. The Court held the Minor Children were not wrongfully retained by Respondent in New Jersey. Because M.S. was not wrongfully removed and because the Minor Children were not wrongfully retained, the Court, denied the Petition. 

La Salle v. Adams, 2019 WL 6135127 (D. Arizona, 2019)[Canada] [Habitual residence] [Grave risk of harm] [Petition granted]

In La Salle v. Adams, 2019 WL 6135127 (D. Arizona, 2019) the district court granted the petition of Kimberly Colin La Salle (“Mother”) against Dominick Johnathan Adams (“Father”) for the return of their two minor children, E.N.A. and M.E.Y.A. to Canada. 

  In April 2011, Mother and Father were married in Alberta, Canada. Mother was a citizen of Canada; Father was a citizen of the United States who had status to live and work in Canada because Mother sponsored his application for a visa. In August 2012, E.N.A., a boy was born in Canada. In January 2014, the couple’s second child, a girl named M.E.Y.A., was born in Canada. Mother, Father, and the Children lived together in Canada until around March 2017, when Mother and Father’s marriage began to deteriorate. The deterioration was caused by several factors, including Father’s failure to provide consistent financial support and Mother’s romantic relationship with another man, Howard LaSalle (“LaSalle”), whom she eventually married. In early 2017, as the marriage was falling apart, Mother withdrew her sponsorship for Father’s visa. Mother credibly testified during the evidentiary hearing that she did so out of necessity—Canadian law requires the sponsor to be the spouse or significant other of the visa applicant (and the relationship was heading toward a divorce) and Canadian law also obligates the sponsor to provide financial support to the visa applicant (which Mother could not afford to do). As a result, in July 2017, Father received formal notification from the Canadian government that he would be losing his immigration status in Canada. In 2017, Mother and LaSalle had a child together (who will be referred to by his first initial, “X”)  

Although Mother and Father stopped living together in 2017, they did not finalize their divorce until October 2018. The divorce decree, which was issued by a Canadian court on October 2, 2018, specifically provides that Mother and Father “have joint custody of the children of the marriage.” The divorce decree provides that Father is responsible for providing the Children’s “primary residence” and “day to day care and control” but clarified that Mother was entitled to “access with the children every other weekend commencing September 1, 2017 and continuing thereafter until further Order of the Court,” with Mother “responsible for picking the children up at the commencement of her access and dropping the children off at the end of her access at [Father’s] residence.” Additionally, the divorce decree provided that Mother and Father must “equally share all school vacations and holidays” and that each parent must “have direct or indirect access to education, counselling, therapy, daycare services, and any other information regarding the welfare of the children.” Finally, the divorce decree provided that each parent may “travel with the children within Canada and outside of Canada without the written consent of the other party provided the person travelling with the children provides the non-travelling party with a travel itinerary and contact information.” 

In late February 2019, Father moved to Arizona and took the Children with him. At the time of the move, the Children were enrolled in school in Canada. After arriving in Arizona, Father and the Children began living with Father’s parents (the Children’s grandparents).
Father initially lied to Mother about the nature of the trip to Arizona, falsely characterizing it as a “vacation.” On March 10, 2019, Mother emailed Father to complain that he’d violated the terms of the divorce decree by failing to identify where the Children were located. The next day, Father responded by providing an address in Sun City, Arizona. Around this time, Mother visited the home where Father had been living in Canada. Upon arrival, Mother realized Father hadn’t simply taken the Children on a temporary vacation—the house was empty, the refrigerator was cleaned out, and it was clear “[t]he kids have obviously been moved.” In early April 2019, Mother contacted law enforcement officials in Arizona for assistance. Mother also sent another email to Father asking him to immediately “provide...a return date of when the children will be brought back [to Canada].” In response, Father vaguely stated that he would be “heading back” at some point after his father’s surgery in June 2019. This, too, was a false statement. Father never returned to Canada, prompting Mother to initiate this proceeding in August 2019.

  The Court noted that first question to be addressed in an ICARA proceeding is “[w]hen did the removal or retention at issue take place?” Mozes, 239 F.3d at 1070. The evidence introduced during the evidentiary hearing established that the challenged removal occurred in late February 2019, when Father took the Children to Arizona. To the extent the initial removal wasn’t wrongful (because Father was allowed, under the divorce decree, to take the Children on short international vacations without Mother’s permission), his retention of the Children in Arizona because wrongful in March 2019, once Mother began missing the every-other-weekend visits to which she was entitled under the divorce decree.

The second question to be addressed in an ICARA proceeding is “[i]mmediately prior to the removal or retention, in which state was the child habitually resident?” Mozes, 239 F.3d at 1070. Here, Canada was the Children’s country of habitual residence in February/March 2019. 
The Children were born in Canada, lived their entire lives in Canada, attended school in Canada, had a Canadian mother, and had Canadian citizenship. The evidence presented during the evidentiary hearing suggests the Children spent every moment of their lives in Canada until they were taken to Arizona. This should end the inquiry. In re A.L.C., 607 Fed. App’x 658, 662 (9th Cir. 2015) (“The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided....[W]e recognize the obvious truth that ‘habitual residence cannot be acquired without physical presence.’ ”). Although neither parent specifically addressed the concept of residential intent when testifying during the evidentiary hearing, there was strong circumstantial evidence that Mother and Father had a shared, settled intent to reside permanently in Canada. Holder, 392 F.3d at 1017 (parental intent may be expressed not only through “the representations of the parties” but also through “all available evidence”). Indeed, Mother was a Canadian citizen who appears to have lived in Canada for all of her adult life and Father lived in Canada from at least 2011 through February 2019, leaving only after he lost his immigration status and was unable to identify an alternative means to secure legal status. To the extent the concept of acclimatization was even applicable here, it did not change the analysis. See generally Murphy, 764 F.3d at 1152-53 (noting that “courts should be slow to infer [acclimatization], both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention”) During their brief time in Arizona, the Children have barely even attended school and they retain deep familial ties to Canada.

The third question to be addressed in an ICARA proceeding is “[d]id the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?” Mozes, 239 F.3d at 1070. Here, the answer was yes. First, Mother possessed rights of custody to the Children under the law of Canada. Indeed, the divorce decree expressly states that Mother and Father share “joint custody of the children of the marriage.” Father breached Mother’s custodial rights when he relocated the Children to Arizona in February 2019. 

In his answer, and to some extent during the evidentiary hearing, Father argued that his decision to take the Children to Arizona wasn’t wrongful because Mother caused him to lose his immigration status in Canada (by withdrawing her support for his visa application) and thus left him with no choice but to take the Children. This argument lacked merit for three reasons. First, Father had not cited any authority suggesting that “unclean hands” is available in an ICARA proceeding and some courts have concluded it is categorically unavailable. Second, as a factual matter, Mother didn’t engage in wrongful conduct by withdrawing her support for Father’s visa application. Third, and most important, this argument overlooked that Father became aware by no later than July 2017 that he was in danger of losing his immigration status in Canada, yet he still agreed to enter into a divorce decree in October 2018 that awarded joint custody to Mother. Father was fully aware at the time he executed the divorce decree that he might have to leave Canada in the future. 

The fourth question to be addressed in an ICARA proceeding is “[w]as the petitioner exercising those rights [of custody] at the time of the removal or retention?” Mozes, 239 F.3d at 1070. Here, the answer was yes. See, e.g., Asvesta v. Petroutsas, 580 F.3d 1000, 1018 (9th Cir. 2009); Walker v. Walker, 701 F.3d 1110, 1121 (7th Cir. 2012).  Thus, petitioner established a prima facie case. 

The Court observed that the Ninth Circuit has emphasized that the grave-risk exception must be “drawn very narrowly” and “is not license for a court in the abducted-to country to speculate on where the child would be happiest.” Gaudin v. Remis, 415 F.3d 1028, 1035-36 (9th Cir. 2005) . “Rather, the question is whether the child would suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” Thus, “even a living situation capable of causing grave psychological harm over the full course of a child’s development is not necessarily likely to do so in the period necessary to obtain a custody determination.” 

During the evidentiary hearing, Father elicited testimony concerning an array of incidents that were apparently offered to show that returning the Children to the care of Mother and LaSalle in Canada would expose them to a “grave risk” of harm. (1) On one occasion in 2017, Mother went to the residence she had previously shared with Father to see the Children. Father was not present at the residence but his mother (the Children’s grandmother), Donna Adams, was there. When Mother arrived, the door was locked. Mother tried to force her way into the residence, became angry when she couldn’t enter, and eventually retrieved a baseball bat from her car and began banging on the door. The Children became anxious and frightened during this episode and Ms. Adams eventually called Mother’s mother, Laurel Berg, to come to the residence and help settle things down. (2) In or around July 2018, E.N.A. broke his arm while in Mother’s custody. The injury was accidental and likely occurred when E.N.A. slipped while getting off a bus. (3) At some point in 2017 or 2018, after Mother had separated from Father and started living with LaSalle, Father passed by LaSalle’s home. When LaSalle saw Father, LaSalle became angry and had to be held back by Mother. (4) Mother did not have consistent access to a car after separating from Father. As a result, she was sometimes required to transport the Children via public transportation— specifically, the bus. This sometimes caused the Children to have to wait, outside, at the bus stop during very cold Canadian winters. The Children were not always properly clothed to protect themselves from the cold.(5) Sometimes, after the Children were returned to Father’s care after spending time with Mother, they reported they were hungry.(6) Following the separation of Mother and Father, the Children were often sad about Mother’s absence and became more emotionally attached to Father.

The Court held that the Father had not come close to establishing the Children would be exposed to a grave risk of physical or psychological harm if returned to Canada. For example, although Mother’s new husband, LaSalle, experienced anger-management issues in the past, the evidence presented during the hearing demonstrates LaSalle had taken steps to address the problem. Moreover, there was no evidence that LaSalle had ever resorted to physical violence against Mother, X, or any other child. Finally, it was telling that LaSalle had custody of his child from a previous relationship—an arrangement CFSA officials would presumably not allow if LaSalle were a danger to children.

There was some suggestion by Father that the Children would be exposed to illicit drug use if returned to the care of Mother and LaSalle. But Mother testified without contradiction (and with some corroboration) that she had never used drugs and the only evidence concerning LaSalle related to historic marijuana use that was apparently legal under Canadian law. As for the incident in July 2018 in which E.N.A. broke his arm, this had zero evidentiary value. Young children often suffer accidental injuries. As for the incident in 2017 when Mother became angry and waved around a baseball bat, although this incident was not particularly flattering, it was understandable that a mother might become upset if she perceived that her mother-in-law was using a locked door to keep her from visiting her children. Additionally, there was no evidence that Mother hit anybody with the bat, let alone displayed a deep-seated propensity for violence that would somehow expose the Children to a grave risk of harm if returned to her care. As for the evidence that the Children sometimes had to wait in the cold for the bus and/or returned from visits with Mother with empty stomachs, this fell far short of the sort of “serious abuse” that must be present to satisfy the grave-risk exception.

Finally, as for the evidence suggesting that the Children became emotionally attached to Father following the divorce (and had grown further attached to him since the relocation to Arizona), this also failed to establish a grave risk of harm. See, e.g., Cuellar, 596 F.3d at 511; See generally Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996) (“[A] grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”).

Mother asked the Court to require Father “to pay [Mother’s] necessary expenses including courts costs, reasonable attorneys’ fees, care expenses, and any transportation costs incurred for the children’s return. The Court granted Mother’s request in part. Although Father did not, in his answer, articulate a compelling reason why a cost award would be “clearly inappropriate,” the evidence presented during the hearing showed that Father had little in the way of financial resources. Accordingly, the Court ordered Father to pay the transportation costs associated with returning the Children to Canada, as well as Mother’s airfare for traveling to and from the evidentiary hearing, but would not require him to pay any other costs. In re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Colo. 2014) 

Cocom v Trimofeev, 2019 WL 5964634 (D. South Carolina, 2019) [Belize] [Necessary costs] [Denied] [Clearly inappropriate]

          In Cocom v Trimofeev, 2019 WL 5964634 (D. South Carolina, 2019) Cocom filed a verified petition against her minor child’s father, Andrey Timofeev (“Timofeev”), and paternal grandmother, Irina Timofeev (“Grandmother”), as part of her efforts to have her child returned to her in Belize. On January 2, 2019, the court entered an order ordering the immediate return of the Child to Cocom. On January 30, 2019, Cocom filed a motion for attorney’s fees, requesting $62,020.00 in attorney’s fees and $9,692.70 in costs.  The district court denied the application.

          The Court observed that ICARA provides for attorney’s fees for the petitioner if she is successful: [a]ny court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3). The statute creates a rebuttable presumption that the successful petitioner “shall” be awarded costs and fees, putting the burden on the respondent to show the court such an award is “clearly inappropriate.” If the respondent can make such a showing, “ICARA gives courts the discretion to reduce or even eliminate a respondent’s obligation to pay a prevailing petitioner’s attorney’s fees and costs.” Neves v. Neves, 637 F. Supp. 2d 322, 345 (W.D.N.C. 2009).  The following two considerations are often relied upon in determining whether to grant fees and costs under ICARA—“whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child...[and] whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). In these cases, the inquiry is cut short before the court must conduct its traditional analysis in determining the reasonableness of attorney’s fees.

          The court found that it would be clearly inappropriate to require Timofeev and Grandmother to pay attorney’s fees because a fee award with impose a significant financial hardship that would impair their ability to care for the Child. It noted that in considering whether a fee award would significantly impair the respondent’s ability to care for the child, courts consider various aspects of the respondent’s financial situation. See Malmgren v. Malmgren, 2019 WL 5092447, at *2 (E.D.N.C. Apr. 1, 2019) (“Given respondent’s limited assets and substantial debts, it would be clearly inappropriate to compel her to pay an additional $16,681.09, and doing so would make it difficult for respondent to contribute to her minor child’s care.”); Mendoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014) (finding a fee award to be clearly inappropriate in part because the respondent earned approximately $9 an hour and had no assets large enough to satisfy the award); Montero-Garcia v. Montero, 2013 WL 6048992, at *6 (W.D.N.C. Nov. 14, 2013) (reaffirming its decision to deny an award of fees and costs because the respondent “has no ability to pay such award, has no assets, and has no prospects for future employment”); Lyon v. Moreland-Lyon, 2012 WL 5384558, at *2 (D. Kan. Nov. 1, 2012) (finding an award of attorney’s fees and costs to be clearly inappropriate because the respondent had no job, no income, no car, and no savings, and the respondent was living on loans from her family).

          Timofeev argues that he would be financially ruined were he required to pay the sum that Cocom requests and that his ability to both support and visit the Child would be severely handicapped. Timofeev had a job in which he works 40 hours per week, was paid $21.76 per hour, and has limited opportunity for overtime work. He lived with Grandmother at one point but now lives either in his 2004 pick-up truck or at homeless shelter in Charleston, South Carolina. Timofeev obtained his pick-up truck for $500, and the expenses related to his truck include $430 in insurance for six months, $15 in taxes per year, and $60 in gas per week. Timofeev also has various monthly expenses, like food, laundry, and medical care. As to other assets owned by Timofeev, there had been some dispute over whether Timofeev owns property in Belize. Timofeev has a Land Certificate for the property, which he submitted to the court, but based on representations made by Cocom’s lawyer in Belize, Timofeev was unsure if his title is still valid. It appears that Timofeev has been or could be charged with kidnapping in Belize, so he had not returned to Belize to verify if his title was still valid. Timofeev estimated that the land had little, if any value, and that the home was worth $5,000.00.

          Grandmother argued that she was unable to pay the requested fees and costs. Grandmother was 55 years old and was living on her savings, which total $6,000.00. Her 2017 tax return indicated that she has no income, and she did not receive Social Security benefits. Grandmother anticipated receiving pension from Russian Federation beginning in October 2020. She had no driver’s license, no work experience, and lives in a rural community, giving her minimal, if any, prospect of employment.

          Given the financial position of both Timofeev and Grandmother, the court found that it would be clearly inappropriate to award any attorney’s fees in this case. Requiring Timofeev and Grandmother to pay this amount would constitute a significant hardship that would wholly detract from their ability to support the Child. While Timofeev had a job, he only made $45,260.80 per year, assuming he worked every week of the year and not taking taxes into account. The amount of fees and costs sought by Cocom is over 1.5 times that amount. Timofeev’s only assets are his truck, worth $500, and possibly property in Belize, worth $5,000. The sale of these assets would put only a small dent in the total amount of fees and costs claimed by Cocom, over $70,000.00, and the sale of Timofeev’s truck would presumably create a serious impact on Timofeev’s ability to work and make money to support himself and the Child.

          Grandmother’s financial position was even more dire. Her only sources of money that she could use to pay the requested fees and costs were her $6,000 in savings and any pension she will receive beginning next year. As such, it would be clearly inappropriate to award any fees or costs for which Grandmother would be responsible in part or in whole.

          Grandmother did not explicitly argue that paying the award would detract from her ability to support the Child, as is required for the court to find the award clearly inappropriate. However, the record in this case indicated that in the past, Grandmother has contributed to the support of the Child.

          An additional factor considered by the court was that Cocom was represented on a pro bono basis. Cocom argues that her pro bono representation was immaterial; however, courts consider this fact in determining whether an award of fees is clearly inappropriate. See Vite-Cruz v. Del Carmen Sanchez, 2019 WL 402057, at *2 (D.S.C. Jan. 31, 2019) (finding an award of fees and costs to be clearly inappropriate in part due to the petitioner’s pro bono representation); Vale v. Avila, 2008 WL 5273677, at *2 (C.D. Ill. Dec. 17, 2008) (finding that while pro bono representation “does not, by itself, render an award of attorney fees clearly inappropriate, it is a factor that cuts against any such award.”). As such, while Cocom’s pro bono representation did not alone make an award of fees and costs clearly inappropriate, the court found that it weighs in favor of denying the award.

The court found that it would be clearly inappropriate to award fees and costs in this case.

        The Court rejected Cocom’s argument that she was still entitled to an award of costs pursuant to Rule 54(d), Cocom’s argument fails. “The language of Rule 54(d)(1) does not provide that the presumptive award of costs may be defeated because of the nature of the underlying litigation. On the contrary, it provides that ‘[e]xcept when express provision therefor is made either in a statute of the United States or in these rules,’ the cost-shifting to the prevailing party otherwise applies to all cases.” Cherry v. Champion Int’l Corp., 186 F.3d 442, 448 (4th Cir. 1999). “Rule 54(d) is supplanted by 42 U.S.C. § 11607(b), which provides for the shifting of fees, costs, and expenses except where ‘such order would be clearly inappropriate.’ ” Montero-Garcia v. Montero, 2013 WL 6048992, at *5 (W.D.N.C. Nov. 14, 2013) (quoting 42 U.S.C. § 11607(b)(3)). Therefore, any reliance on Rule 54(d) was misplaced.

Gil-Levya v Leslie, 780 Fed.Appx. 580 (10th Cir., 2019)[Canada] [Grave Risk of Harm] [Petition granted]

In Gil-Levya v Leslie, 780 Fed.Appx. 580 (10th Cir., 2019) the district court determining that Ms. Leslie failed to show by clear and convincing evidence that the children face a “grave risk” of harm if returned to Canada, granted the petition for return. The Tenth Circuit affirmed. The case was submitted without oral argument. In a footnote the Court pointed out that it order and judgment was not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

  Ms. Leslie, a U.S. citizen, and Mr. Gil-Leyva, a Canadian citizen, met in Colorado in late 2007 and began cohabiting there in March 2008. Ms. Leslie and Mr. Gil-Leyva never formally married. About September 2009, they relocated to Alberta, Canada, where their children, H.M.G. and H.F.G., were born. Ms. Leslie testified that she lived in Canada like a “human trafficking victim.” She testified that she endured physical abuse, occasionally in front of the children, and that she witnessed Mr. Gil-Leyva abuse alcohol, marijuana, and prescription narcotics. Regarding the children, she testified that Mr. Gil-Leyva spanked them, got angry and threw objects in their vicinity, and neglected their basic needs when left alone with them. She further testified that Mr. Gil-Leyva allowed unsafe living conditions, with non-child-resistant bottles of prescription narcotics, power tools, deconstructed machine parts, solvents, and other hazardous items lying in the home, some of which the children played with. And, she testified about noxious fumes in the home from Mr. Gil-Leyva cooking solvents, pennies, and vehicle parts in the kitchen. Mr. Gil-Leyva disputes many of these allegations. 

In May 2016, Ms. Leslie convinced Mr. Gil-Leyva to give his consent for the children’s passports so they could visit her ailing mother for a week and a half. About a week after arriving in Colorado, however, Ms. Leslie informed Mr. Gil-Leyva that she intended to stay beyond the agreed-upon date. Then, in October 2016, Ms. Leslie told Mr. Gil-Leyva that she would not return to Canada with the children. She then initiated state-court proceedings seeking full custody of the children. On June 9, 2017, Mr. Gil-Leyva filed this pro se action in federal district court, seeking an order returning H.M.G. and H.F.G. to Canada under the Hague Convention and the ICARA.

In advance of a hearing scheduled for January 10, 2018, Mr. Gil-Leyva moved to appear via contemporaneous transmission under Rule 43(a) of the Federal Rules of Civil Procedure. The judge denied the motion on grounds that, as a pro se plaintiff, Mr. Gil-Leyva must litigate the case in person. Mr. Gil-Leyva took no further action until the day before the hearing, when he requested a four-to-six-week continuance so that he could make appropriate travel and legal preparations. He then telephoned into the hearing, despite the order denying his Rule 43(a) motion. The judge initially heard argument on whether to continue the hearing. She then denied a continuance and proceeded with the hearing as scheduled, overruling Ms. Leslie’s objection to the reliability of Mr. Gil-Leyva’s telephonic testimony. On April 17, 2018, the magistrate judge issued a written order granting Mr. Gil-Leyva’s request to return H.M.G. and H.F.G. to Canada. 

The Tenth Circuit rejected Ms. Leslie’s argument that  the magistrate judge abused her discretion in permitting Mr. Gil-Leyva to appear telephonically at the January 10, 2018, evidentiary hearing after denying his Rule 43(a) motion to testify in that fashion. The Hague Convention provides that “[t]he judicial ... authorities of Contracting States shall act expeditiously in proceedings for the return of children.” T.I.A.S. No. 11,670, Art. 11; see also Chafin v. Chafin, 568 U.S. 165, 180, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013). This means “a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA.” West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). In fact, in this context, nothing requires a court even to hold an evidentiary hearing. See id. Certainly, then, a court that does hold a hearing has some latitude to deviate from ordinary rules of procedure that might delay a final resolution. This was especially true in this case, which had been ongoing since June 2017. The Hague Convention contemplates a judicial decision “within six weeks from the date of commencement of the proceedings.” T.I.A.S. No. 11,670, Art. 11. Not only had this case already been pending for six months when the magistrate judge held a hearing in January 2018, but Mr. Gil-Leyva had asked to postpone the hearing for a period equivalent to the initial timeline within which child-abduction cases should resolve. Concerned that the case was passing the point of expeditious resolution, the judge decided to proceed without Mr. Gil-Leyva being physically present. Given the impetus to quickly resolve the abduction claim, the judge had good cause to proceed in this manner. 
The Tenth Circuit found that Mr. Gil-Leyva, the petitioning parent, has made the required showing of a prima facie case. Mrs. Leslie conceded that she had retained H.M.G. and H.F.G. outside Canada since May 2016, that Canada wass the children’s country of habitual residence, that her actions breached Mr. Gil-Leyva’s custody rights, and that Mr. Gil-Leyva was exercising those rights at the time. 
Ms. Leslie pressed a single defense on appeal: that she demonstrated by clear and convincing evidence a “grave risk” that the children’s return to Canada would expose them to “physical or psychological harm or otherwise place the[m] ... in an intolerable situation.” The court observed that as the term implies, a “grave risk” means the “potential harm to the child must be severe, and the level of risk and danger ... very high.” West, 735 F.3d at 931 (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)); see also Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005) (“The gravity of a risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes.”).

To satisfy her burden, Ms. Leslie testified that Mr. Gil-Leyva physically abused her and the children when they lived with him and that he negligently cared for the children and allowed unsafe living conditions in the home. The magistrate judge recited these allegations and found them insufficient to establish by clear and convincing evidence a grave risk of harm to the children. 

Addressing physical abuse of Ms. Leslie, the magistrate judge recited Ms. Leslie’s testimony that Mr. Gil-Leyva “slapped” and “shoved” her several times and once “choked her with his hands,” causing her to break a blood vessel in her eye and bruise on her neck. Though this testimony is deeply concerning, and undeniably will figure in any Canadian custody proceedings, spousal abuse is relevant for Article 13(b) purposes only if it “seriously endangers” the child. See Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). Evidence of a “clear and long history of spousal abuse” may suffice to show a propensity for child abuse, see Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000), but isolated incidents of abuse generally demonstrate a risk of harm only to the spouse. At a minimum, the spouse must “draw a connection” showing that the risk such abuse poses to her “constitute[s] a grave risk to the children.” See Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010). Ms. Leslie failed to do so in this case.

Addressing physical abuse of the children, the magistrate judge recited Ms. Leslie’s testimony that Mr. Gil-Leyva spanked H.F.G. “only once” and H.M.G. six times “with an open hand,” leaving “marks” on their “bare bottoms.” Certainly, a parent who is “in the habit of striking the children,” even for disciplinary purposes, might pose a grave risk of harm to them. See Ermini v. Vittori, 758 F.3d 153, 165 (2d Cir. 2014). But the described spankings, though again perhaps a subject for any Canadian custody proceedings, did not suffice to show a grave risk of harm. Cf. Simcox v. Simcox, 511 F.3d 594, 608–09 (6th Cir. 2007) (considering it a “close question” that even “repeated beatings, hair pulling, ear pulling, and belt-whipping” established a grave risk of harm). Although Ms. Leslie testified that Mr. Gil-Leyva would occasionally “get angry and throw things around,” she allowed that he “never hit the children with those items.” And she proffered no evidence that Mr. Gil-Leyva’s erratic behavior would constitute a credible threat to the children’s safety upon their return.

On appeal, Ms. Leslie argued that the children were at grave risk of psychological damage from Mr. Gil-Leyva’s violent behavior, even if that behavior posed no grave risk of physical harm to them. Though she may develop this theory in Canadian court, the record in this case provided no support for it. Ms. Leslie alleged that the children will suffer from “[w]itnessing a pattern of violence between” her and Mr. Gil-Leyva.  But she simultaneously claimed that she either cannot or will not return to Canada. Presumably, that “removes any risk of the children witnessing any future abusive acts” against her. See Charalambous, 627 F.3d at 469. Moreover, though repatriation may cause “unavoidable psychological harm” to children exposed to spousal abuse in the past, see Souratgar, 720 F.3d at 104, Ms. Leslie testified that the only abuse the children ever witnessed was Mr. Gil-Leyva occasionally slapping her on her “back side very hard,”. Though it is debatable that such contact would trigger grave psychological harm upon the children’s return to Canada, any such argument rested on speculation. See Souratgar, 720 F.3d at 104. Notably, neither party has requested a psychological evaluation of the children to assess the effects of any of Mr. Gil-Leyva’s past abuse. The same issue arose with Ms. Leslie’s argument that the children would suffer psychological harm from Mr. Gil-Leyva spanking them or throwing things at them. Ms. Leslie adduced no expert testimony or evidence that the children suffered emotionally in the past or that they would unavoidably suffer from spanking or thrown objects in the future.

The Magistrate judge recited Ms. Leslie’s testimony regarding Mr. Gil-Leyva’s negligence in caring for the children and allowing unsafe living conditions in the home. This included testimony that Mr. Gil-Leyva left non-child-resistant bottles of prescription medications “within reach of the children”; that his prescription  usage made his behavior “pretty manic”; that, on the “less than five” occasions Ms. Leslie left him alone with the children, he neglected to change their diapers; that once, he fell into a “narcotic induced sleep” during which he was “completely unaware” of the children’s needs; that he sometimes “put a child in the front seat” of his work van and once “used a tie-down strap in the back of the van for a child seat”; that he made soap and shoes and disassembled sewing machines, leaving their parts “all over the house” along with other dangerous items, including “[p]ower tools, solvents, screws, nails, glues, [and] choking hazards,” some of which the children occasionally played with; and that “it was not abnormal” for him to “leave power tools plugged in.” Ms. Leslie further testified—though the judge didn’t expressly address—that Mr. Gil-Leyva cooked solvents, pennies, and vehicle parts, producing fumes that made the home “noxious” and “uninhabitable.” Though the judge considered Ms. Leslie’s description of the home as being an “environment which may not be safe or healthy for children,” she found significant the absence of evidence that the children had suffered any harm when they lived with Mr. Gil-Leyva.  If the children suffered no harm from Mr. Gil-Leyva’s alleged negligence when they were younger and more vulnerable, it struggled to see how they faced a grave risk of harm now. While past harm is not required to establish a grave risk of future harm, it is probative of whether the children will suffer upon returning to the same circumstances. See Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir. 2008). Ms. Leslie did not demonstrate by clear and convincing evidence that these dangers present so grave and credible a threat that the children cannot safely return to Canada without her protection. 

Because Ms. Leslie failed to clearly and convincingly establish an Article 13(b) defense to repatriation, H.F.G. and H.M.G. must be “promptly returned” to Canada. See 22 U.S.C. § 9001(a)(4). The magistrate judge entered an order accordingly but clarified in dicta that she was only ordering the children’s return to Canada, not to Mr. Gil-Leyva’s home. She added that, as Canadian law permits, Ms. Leslie may take certain actions to oppose the children’s return to Mr. Gil-Leyva’s home; for example, Ms. Leslie may accompany the children back to Canada and reside with them, separate from Mr. Gil-Leyva, while litigating their custody in the appropriate Canadian court. Ms. Leslie argued that these suggestions amounted to unworkable “undertakings” which fail to guarantee the children’s safety. The Tenth Circuit held that absent a predicate finding that the children face a grave risk of harm in Mr. Gil-Leyva’s home, the judge had no obligation to craft workable undertakings to “ameliorate the ... harm.” See Baran, 526 F.3d at 1352. Instead, the judge was required to order the children’s unconditional return to Canada, which she did.

Teller v Helbrans, 2019 WL 5842649 (E.D. New York, 2019)[Guatemala] [Federal & State Judicial Remedies] [ Dismissal with prejudice for violations of Rules 16(f)(1)(A) and 16(f)(1)(C)]

In Teller v Helbrans, 2019 WL 5842649 (E.D. New York, 2019) Aaron Teller (“Teller”) commenced an action under the Hague Convention on Civil Aspects of International Child Abduction. 

Teller filed a Petition on May 29, 2019, alleging that his wife, Helbrans, abducted their six children in October 2018. Teller asked for the children to be returned to Guatemala, their alleged habitual residence, for custody proceedings. Teller alleged that he, Helbrans, and the six children were members of the Jewish community Lev Tahor living in Guatemala and that Helbrans left the community with the children in violation of Teller’s custody rights. All six children moved to intervene, and the Court approved their participation. 

In June 2019, the Court adopted Helbrans and Teller’s jointly proposed discovery and trial schedule. The schedule contemplated the commencement of trial on September 23, 2019. On July 11, Helbrans moved to compel the production of certain documents. The Court subsequently ordered Teller to produce non-privileged documents in response to Helbrans’s document requests and to provide information about a set of emails. No complete production of responsive documents was ever made. Helbrans sought an order compelling Teller to appear for a deposition pursuant to the Walsh Act, 28 U.S.C. § 1783. Teller resisted these efforts. On August 12, the Court denied Helbrans’s motion to compel without prejudice to renewal. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *1 (E.D.N.Y. Aug. 12, 2019); On August 15, Helbrans supplemented her earlier submissions and renewed her motion under the Walsh Act. In response, Teller asked that his deposition be taken in Guatemala. Teller’s counsel also informed the Court that Teller would not be testifying at the trial in New York and asked to appear by videoconference, but he provided no reason why an in-person appearance was not possible. Helbrans also moved to compel Teller’s production of documents on August 19. Helbrans informed the Court that Teller “produced only 15 documents weeks after the [document discovery] deadline, only after Respondent repeatedly prodded Petitioner and asked about specific categories of documents that should have existed in Petitioner’s possession.”  She recounted that on August 3, one day after the document discovery deadline, Teller’s counsel said that Teller’s final production had been sent.  But on August 7, 2019, Teller’s counsel said, “I have not received any documents from Aaron Teller yet.” Helbrans also asked the Court to amend the discovery and trial schedule because Teller had failed satisfy other discovery obligations. His failures allegedly included: not serving discovery requests by June 21, not serving objections and responses to Helbrans’s discovery requests by June 26, and not producing any documents by the document production deadline of August 2. 
The Court granted Helbrans’s motion for a Walsh Act subpoena. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3975555, at *5 (E.D.N.Y. Aug. 21, 2019). The Court explained that “[t]here 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,” and “it is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter.” In granting the motion, the Court noted that although Teller refused to appear for a deposition or trial, “[t]here is no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States.”  As a result, the Court directed (i) Teller’s counsel to provide an estimate of travel and attendance costs for the deposition, (ii) Helbrans to provide subpoenas to be so-ordered for Teller’s deposition and trial testimony and to arrange for service of the subpoenas pursuant to Federal Rule of Civil Procedure 4(f), and (iii) the parties to meet and confer about the date for Teller’s deposition. 

On August 22, a status conference was held with counsel for Teller, Helbrans, and all Respondent-Intervenors. In light of Teller’s discovery failures, the Court adjourned the trial to October 29, 2019. The Court then “so-ordered” two Walsh Act subpoenas compelling Teller to testify at a deposition in the United States and at the trial. After Teller’s counsel provided an estimate of travel and attendance costs, the Court asked Helbrans to pay $3,340, which her counsel agreed to do.  In September 2019, an agent attempted personal service on Teller of the two Walsh Act subpoenas and the check for the travel funds. On September 7, 8, 11, and 15, the agent attempted to serve Teller by visiting a gated community in Guatemala at which Teller was known to be living with the Lev Tahor community. Personal service could not be accomplished. Members of the Lev Tahor community took steps over those four days to help Teller evade service by turning the agent away from their “private property” and refusing to accept service on behalf of Teller. The agent then had the documents sent via certified mail to Teller’s Guatemalan address on September 20. A security guard at the gate of the community did not allow the delivery by the Guatemalan postal service. Helbrans’s counsel sent a copy of the two subpoenas to Teller’s counsel via email. The subpoenas and check were made available for Teller to pick-up at a Guatemalan post office, and Teller’s counsel said that he would advise Teller as such.

On September 7, Helbrans asked the Court to draw an adverse inference against Teller because, as of that date, “Teller had not produced any documents responsive” to Helbrans’s requests for production in violation of the Court’s August 22 order. The only documents he produced were documents from Chayeh and Yakev Weingarten, both non-parties and purported members of Lev Tahor. Helbrans’s counsel also had learned that Teller’s counsel had been unable to communicate with Teller. A status conference was held on September 23, 2019. Prior to the conference, Teller’s counsel filed a letter stating that he wished to be relieved as counsel. At the status conference, Teller’s counsel provided some explanation for the request. Among other things, he stated that he had experienced a “lack of cooperation” from Teller in gathering information, “the discovery process has had a lot of pitfalls, and [counsel] d[id]n’t see an end to that potential process.” Counsel also learned that Lev Tahor may be moving to Iran; counsel had personal and litigation-based objections to such action, but he did not elaborate. The Court directed counsel to file a motion to withdraw as counsel as required by Local Civil Rule 1.4.

At the status conference, Teller’s counsel again told the Court that Teller did not intend to appear for his deposition or the trial. He stated, “Mr. Teller has indicated to me that he will not, even if properly served with a subpoena, be able to come to the United States.”. After the Court stated that Teller could be held in contempt, his case would be dismissed with prejudice if he did not appear for his deposition, and he could not “get the benefits of a court adjudication, and at the same time avoid the obligations that go along with them[,]” Teller’s counsel stated that he had “communicated that to [Teller].”. The Court then scheduled a hearing on the motion to withdraw as counsel and directed Teller to appear at the hearing. On October 18, the deposition of Teller was convened. The attorneys for Helbrans, Y.C.T., and the Children Teller appeared. Teller, however, did not. 

Helbrans filed a motion to dismiss the Petition with prejudice under Federal Rules of Civil Procedure 37 and 41. Their children, the Respondent-Intervenors, also requested dismissal in separate filings. The court found that since the Petition was filed, Teller engaged in a pattern of misconduct and paid little attention to and disregarded the obligations attendant to a litigant in a federal civil proceeding. Although Teller ostensibly filed the Petition to have his six children returned to him in Guatemala for custody proceedings, it was obvious to the Court that he hads little to no intention of litigating the case. Because time is of the essence in a Hauge Convention case, the Court entered an expedited discovery schedule and set a trial date. In response, Teller first ignored his discovery obligations by refusing to provide documents requested by the other parties. He then failed to appear for his deposition. And finally, when his lawyer moved to withdraw, Teller failed to appear at the motion hearing, even though he was directed to do so by the Court. Teller repeatedly told the Court that he had no intention of appearing for any trial. Teller, who was a U.S. citizen, never gave any reason why he could not appear in a case he initiated. A federal statute—the Walsh Act—permits a court to compel and subpoena a U.S. citizen to testify. The Court did so and also eliminated any potential financial barriers to appearance by having the law firm representing Respondent Sara Feiga Helbrans (“Helbrans”) pay for Teller’s plane fare and hotel accommodations. In response, Teller took various steps to evade service of the Court’s subpoena (none of which actually negated the propriety of service) and again reiterated his intention never to appear. It was  obvious that Teller’s motivation in bringing this case was either to harass the other parties or to obtain some strategic advantage in other litigation (including the New York State custody proceedings that had been stayed because of the filing of the Petition). While a party’s motivation in filing suit may be irrelevant, violations of court orders may not so easily be disregarded. The flagrant and repeated disregard of court orders and discovery obligations compeled the Court to dismiss Teller’s Petition with prejudice.
 .
The Court granted the motion to withdraw, as well as the motions to dismiss.and dismissed the Petition with prejudice pursuant to Rule 37(b)(2)(A)(v), for his violations of Rules 16(f)(1)(A) and 16(f)(1)(C). See, e.g., Wang, 308 F.R.D. at 120 (dismissing plaintiff Wang’s complaint with prejudice pursuant to Rule 37 “because the Wangs and their counsel repeatedly and willfully obstructed Bear Stearns’ efforts to depose Mr. Wang ... [and counsel] refused to accept service of any subpoena.”).