Smith v Smith, --- F.3d ----, 2020 WL 5742023 (5th Cir., 2020) [Argentina] [Habitual residence] [Petition denied]

In Smith v Smith, --- F.3d ----, 2020 WL 5742023 (5th Cir., 2020) Colin David Smith filed a petition under the Hague Convention asserting that Sarah Elizabeth Smith wrongfully removed their children from Argentina to Texas. The district court denied the father’s petition because it determined that Argentina was not the children’s habitual residence. The Fifth Circuit affirmed. 

  Colin Smith and Sarah Smith married in 2008 and had four children. After several moves within the United States, the family moved to Argentina in June 2017. The couple separated in May 2018 and jointly petitioned an Argentinian court for divorce. That court’s divorce decree provided for the parents’ shared custody. Sarah removed the children to Texas in July 2019, with Colin’s permission, to attend a funeral, but t she remained in the United States with the children. Colin filed a lawsuit seeking the children’s return to Argentina in the United States District Court on October 1, 2019. The district court held a bench trial in which Colin argued that a foreign custody order and the provisions thereof, combined with the length of time the children lived in Argentina, determined that Argentina was the children’s habitual residence. He also testified, however, that there was no objective evidence showing a shared intention to permanently move to Argentina. Sarah pointed to the fact that none of the children had ever left the United States before moving to Argentina, certain provisions in Colin’s work contract, the children’s attendance at an American school in Argentina, and her own continued ownership of inherited property in Texas as evidence that Argentina was not the children’s habitual residence. She further testified that Colin had reassured her that the move to Argentina was only for two years and that they would use the money he earned there to pay for a house in the United States. A close family friend also testified at the hearing that neither party ever represented that they intended to permanently abandon the United States by moving to Argentina and that they always spoke of the move as temporary.

  The district court then issued an order denying the return of the children to Argentina, determining that the facts supported the conclusion that none of the children habitually resided in Argentina. Specifically, the district court found: both parents and all the children were born in the United States and continued to be United States citizens; Colin was eligible to apply for Argentinian citizenship and did not do so; Colin’s work contract was at will, contained provisions for “home leave” which referred to the United States, specifically San Francisco, and provided for a 24-month housing allowance; the parties brought all of their personal belongings with them to Argentina, but Sarah continued to own, and Colin was aware of, land in Texas that she inherited prior to the move abroad; the parties chose to sign a two-year lease in Argentina rather than purchase a residence; all four children were enrolled in an “American style” school in Buenos Aires; none of the parties own any property or have any family members in Argentina; Sarah does not now qualify for anything other than an Argentinian tourist visa, which would only allow her to stay in the country for up to three months. The district court also found that the oldest two children were of sufficient age and maturity to object to being sent back to Argentina, and that they did object.

  Colin filed this appeal in which he contended that the district court erroneously applied a “shared intent” standard for determining the habitual residence of the children instead of a “totality of the circumstances” standard. It was Colin’s position that the Argentinian divorce decree was dispositive in that its shared custody provisions can practically be implemented only in Argentina.

  The Fifth Circuit observed that before Monasky, the Fifth Circuit adopted an approach that looked to the parents’ “shared intent” as a threshold test for determining a child’s habitual residence. This was the approach the district court used to arrive at its determination in this case. While this appeal was pending, the Supreme Court of the United States held in Monasky that the correct approach to habitual residence is to examine the totality of the circumstances. 140 S. Ct. at 730. Once this standard is identified, a court need only apply that standard to determine if a child was at home in the country from which the child was removed.  This is a fact-intensive analysis that “should be judged on appeal by a clear-error review.” Therefore, it reviewed the district court’s determination for clear error, but under a totality-of-the-circumstances analysis. 

 

It observed that the Supreme Court held in Monasky that “a child’s habitual residence depends on the totality of the circumstances specific to the case.” It also held that a child’s “residence in a particular country can be deemed ‘habitual’ ... only when her residence there is more than transitory.” 

The district court, in keeping with what was then-binding Fifth Circuit precedent, began with the parents’ shared intent before moving onto a “fact-intensive determination that necessarily varies with the circumstances of each case.” However, as was the case in Monasky, the district court had determined and considered all the relevant facts. After doing so, it decided that Colin, as petitioner, did not meet his burden of establishing habitual residency. Finding no clear error with the district court’s factual findings and examining those findings under the totality of the circumstances, it held that Argentina was ot the children’s habitual residence. 

  Following the example set in Monasky, it did  not remand for the district court to reconsider because to do so would “consume time when swift resolution is the Convention’s objective,” and there was no indication that “the District Court would appraise the facts differently on remand.” Monasky, 140 S. Ct. at 731. Likewise, counsel agreed at oral argument that a remand was unnecessary. Instead, because we are unable to find any clear error with the district court’s findings of fact, it applied the totality-of-the-circumstances standard established in Monasky to the district court’s factual findings. Because the totality of the circumstances showed that the children did not habitually reside in Argentina, it affirmed.

In a footnote it pointed out that in light of the Supreme Court’s holding in Monasky that a child’s habitual residence should be determined by looking to the totality of the circumstances, to the extent that its prior caselaw in Larbie and other cases has prioritized the parents’ shared intent over other factors, it overruled that emphasis. 

Palomo v Howard, --- Fed.Appx. ----, 2020 WL 3989461 (Mem) (4th Cir., 2020) [Spain] [Petition granted]

In Palomo v Howard, --- Fed.Appx. ----, 2020 WL 3989461 (Mem) (4th Cir., 2020) (not selected for publication) Olga Rodriguez Palomo, a citizen and resident of Spain, commenced an action against Donald Ray Howard, a citizen and resident of the United States, seeking the return of their son pursuant to Hague Convention on the Civil Aspects of International Child Abduction and International Child Abduction Remedies Act. After a trial, the district court found for Palomo and ordered that the child be returned to his mother’s custody in Spain. Howard appeals. The Fourth Circuit reviewed the district court’s factual findings for clear error and its legal conclusions regarding domestic, foreign, and international law de novo. It reviewed the record and the district court’s thorough opinion and order and found no reversible error. It affirmed for the reasons stated by the district court. Palomo v. Howard, 426 F.Supp.3d 160 (M.D.N.C. 2019). It dispensed with oral argument because the facts and legal contentions were adequately presented in the materials before this court and argument would not aid the decisional process.

 

Da Silva v De aredes, --- F.3d ----, 2020 WL 1226492 (1st Cir., 2020) [Brazil] [Grave risk of harm] [Now settled][Petition denied]

In Da Silva v De aredes, --- F.3d ----, 2020 WL 1226492 (1st Cir., 2020) Marcelene de Aredes “wrongfully removed” her daughter A.C.A. from Brazil, and the child’s father petitioned for her return. De Aredes appealed from a district court order rejecting her defenses to return and ordering the return of A.C.A. to Brazil with A.C.A.’s father, Nelio Nelson Gomes da Silva. The First Circuit affirmed the district court’s decisions, with a technical caveat directing the district court modify the language of the injunctive decree that directs A.C.A.’s return to Brazil. Modification was necessary to prevent the injunction from being read to have made an inappropriate custody determination.

    De Aredes and da Silva, both Brazilian citizens, met in 1998 and soon after began dating in Muriaé, Brazil. The two lived together from 2007 to 2016. They were never married. In 2010, de Aredes gave birth to A.C.A., who was the natural child of da Silva. In February 2016, de Aredes and da Silva separated, and da Silva moved out of their home, to a house next door to de Aredes. M.A. and A.C.A. continued to reside with de Aredes in her home. The district court found that de Aredes had suffered some degree of abuse by da Silva. In September 2016, de Aredes took M.A. and A.C.A. to de Aredes’s parents’ house in Cuparaque, Brazil. De Aredes, M.A., and A.C.A. stayed in Cuparaque for a few months. During this time, da Silva did not travel to Cuparaque or visit A.C.A. In December 2016, and without da Silva’s consent or knowledge, de Aredes took the children to the United States. The Brazilian courts were never asked to determine custody or whether de Aredes had been abused. De Aredes, M.A., and A.C.A. arrived in the United States on or around December 17, 2016, without a visa or other permission to enter. De Aredes did not formally apply for asylum at that time. Immigration authorities released the three on recognizance and ordered de Aredes to attend an immigration hearing in Boston, Massachusetts. The three moved to East Boston immediately afterwards and the two children enrolled in public school.

 

On November 9, 2018, da Silva filed a Hague Convention petition seeking the return of A.C.A. to Brazil. De Aredes raised five affirmative defenses, only two of which were at issue here: (1) that returning A.C.A. to Brazil would subject A.C.A. to grave risk of physical or psychological harm, 22 U.S.C. § 9003(e)(2)(A); and (2) that da Silva did not file his petition within twelve months of A.C.A.’s wrongful removal, and A.C.A. was “now settled” in the United States. On appeal, de Aredes did not challenge the holding that da Silva made a prima facie case of wrongful removal. The district court concluded that de Aredes had wrongfully removed A.C.A. from Brazil and had not met her burdens of proof on the affirmative defenses. On October 28, 2019, the district court entered an injunction ordering that A.C.A. be returned to Brazil on January 2, 2020. De Aredes appealed the order on October 29, 2019.

 

The district court rejected de Aredes’s claim that returning A.C.A. to Brazil would expose A.C.A. to a grave risk of physical, sexual, and psychological harm. The district court found that da Silva had “rights of custody over” A.C.A., the removal was wrongful, and da Silva did not sit on his rights. The court found the relationship between the parents was “tumultuous” and “on occasion [da Silva] engaged in some degree of physical assault or abuse of [de Aredes].” It found the parental relationship “falls regrettably in the category of dysfunctional relationships that are known generally in all nations.” And it found the evidence of abuse of de Aredes was “not so pervasive” as to attribute that to da Silva’s other interactions with the family. Correctly stating that the grave risk of harm analysis was concerned with harm or potential harm to A.C.A., rather than de Aredes, the district court concluded that de Aredes failed to show by clear and convincing evidence the possible risk of harm to A.C.A. The grave risk defense requires de Aredes to show, by clear and convincing evidence, “there is a grave risk that ... return would expose the child to physical or psychological harm.” Danaipour, 286 F.3d at 13 . Further, the “harm must be ‘something greater than would normally be expected on taking a child away from one parent and passing [the child] to another.’” Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000). It rejected De Aredes argument that the finding of “some degree” of abuse of de Aredes required a finding that A.C.A. would be exposed to grave risk. There was no claim that A.C.A. was ever herself abused. The claims here were largely that A.C.A. would be at grave risk from seeing the instances of conflict between her parents, or that the conflict between her parents demonstrated that A.C.A. would be at grave risk of da Silva abusing her in the future. But that degree of conflict does not come close to the witnessed abuse in Walsh v. Walsh.4 See 221 F.3d at 219-22. The district court found that, while da Silva “on occasion ... engaged in some degree of physical assault or abuse,” the abuse was not so severe as in Walsh. The court found that da Silva never abused A.C.A. The details of the abuse alleged were insufficient to support a finding of grave risk as to A.C.A. The district court committed no clear error in concluding that the “showings of physical abuse” were not “so pervasive” as to support a determination of grave risk of harm as to A.C.A.

 

Nor did the district court err in finding that de Aredes failed to show returning A.C.A. to Brazil would expose A.C.A. to grave risk of sexual harm. That assertion was primarily based on the testimony of M.A.’s therapist, about alleged sexual abuse of M.A. and de Aredes’s characterization of da Silva’s testimony as failing to explicitly deny abusing M.A., this being an admission of child abuse. Here, the alleged sexual abuse was not of A.C.A. De Aredes did not witness any sexual abuse as to A.C.A.’s sister. 

When the petition for return has been filed one year or more after the wrongful removal, as here, a district court may decline to order return if the child is now settled in the new country. Courts look to the totality of the circumstances in determining whether a child is now settled. A court may consider any relevant fact, including immigration status. The district court considered the relevant facts and found that A.C.A. was not now settled. Although it found that the evidence supported A.C.A.’s having “developed meaningful relationships and lasting emotional bonds with a community in East Boston,” the district court found that A.C.A.’s resiliency and ability to form bonds in Brazil would not make her return to Brazil an event that “wrench[ed] [her] out of a well-settled position.” In support, the district court properly considered the “unsettled character [of] the immigration status” of de Aredes, A.C.A., and M.A. Tthe evidence before the district court supported its finding that A.C.A. was not now settled, and that finding was not clearly erroneous. Although A.C.A. was engaged in school, she was repeatedly tardy and absent. During the 2017-2018 school year, A.C.A. was tardy on 40 days and absent 8 days, out of 167 days. In the first half of the 2018-2019 school year, she was tardy 41 out of 113 days. The district court could credit this administrative record as weighing against a finding that A.C.A. was now settled. As of October 26, 2018, just two weeks before the petition date, de Aredes seemed to struggle “to find a regular and steady employment [yet] at th[at] time however manage[d] to run the household.” A.C.A. was diagnosed with “adjustment disorder with depression or anxiety.” A.C.A. experienced a documented difficulty adjusting to her move to the United States and the absence of her father, grandparents, and friends in Brazil.

 

 

Monasky v. Taglieri, 2020 WL 889192, at *1–2 (U.S., 2020)[Italy][Habitual Residence]

In Monasky v. Taglieri, 2020 WL 889192, at *1–2 (U.S., 2020) the U.S. Supreme Court, in an opinion by Justice Ginsberg, construed the term “habitual residence” which appears in the Hague Convention on the Civil Aspects of International Child Abduction.

 22 U.S.C. § 9001 et seq., provides that a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country. Petitioner Monasky, a U.S. citizen, asserted that her Italian husband, respondent Taglieri, became abusive after the couple moved to Italy from the United States. Two months after the birth of the couple's daughter, A.M.T., in Italy, Monasky fled with the infant to Ohio. Taglieri petitioned the U.S. District Court for A.M.T.'s return to Italy under the Convention, pursuant to 22 U.S.C. § 9003(b), on the ground that the child had been wrongfully removed from her country of “habitual residence.” The District Court granted Taglieri's petition, concluding that the parents' shared intent was for their daughter to live in Italy. Then A.M.T. was returned to Italy. The Sixth Circuit affirmed. Under its precedent, the court first noted, an infant's habitual residence depends on the parents' shared intent. It then reviewed the District Court's habitual-residence determination for clear error and found none. The court rejected Monasky's argument that Italy could not qualify as A.M.T.'s “habitual residence” in the absence of an actual agreement by her parents to raise her there.

The Supreme Court held that a child's habitual residence depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. The Convention does not define “habitual residence,” but, as the Convention's text and explanatory report indicate, a child habitually resides where she is at home. This fact-driven inquiry must be “sensitive to the unique circumstances of the case and informed by common sense. Acclimation of older children and the intentions and circumstances of caregiving parents are relevant considerations, but no single fact is dispositive across all cases. The treaty's “negotiation and drafting history” corroborates that habitual residence depends on the specific circumstances of the particular case.  This interpretation also aligns with habitual-residence determinations made by other nations party to the Convention. 

The Supreme Court rejected Monasky’s arguments in favor of an actual agreement requirement. While an infant's “mere physical presence” is not a dispositive indicator of an infant's habitual residence, a wide range of facts other than an actual agreement, including those indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant's residence has the quality of being “habitual.” Nor is adjudicating a dispute over whether an agreement existed a more expeditious way of promoting returns of abducted children and deterring would-be abductors than according courts leeway to consider all the circumstances. Finally, imposing a categorical actual-agreement requirement is unlikely to be an appropriate solution to the serious problem of protecting children born into domestic violence, for it would leave many infants without a habitual residence, and therefore outside the Convention's domain. 

In addressing the scope of appellate review, the Court held that a first-instance habitual-residence determination is subject to deferential appellate review for clear error. A trial court's habitual-residence determination presents a mixed question of law and fact that is heavily fact laden. The determination presents a task for fact-finding courts and should be judged on appeal by a clear-error review standard. Clear-error review has a particular virtue in Hague Convention cases: By speeding up appeals, it serves the Convention's emphasis on expedition. Notably, courts of other treaty partners also review first-instance habitual-residence determinations deferentially. 

        Under the circumstances of this case, the Supreme Court declined decline to disturb the judgment below. Although the lower courts viewed A.M.T.'s situation through the lens of her parents' shared intentions, after a four-day bench trial, the District Court had before it all the facts relevant to the dispute. Asked at oral argument to identify any additional fact the District Court did not digest, counsel for the United States offered none. Monasky and Taglieri agreed that their dispute “requires no ‘further factual development, and neither party asked for a remand. 

Stone v Stone, 2020 WL 491194 (D. New Jersey, 2020)[Israel] [Necessary expenses] [Respondents request denied]

In Stone v Stone, 2020 WL 491194 (D. New Jersey, 2020) [Not for publication] on September 12, 2019, Petitioner Yerucham Stone filed a petition for the return of his three minor children to Israel pursuant to the 1980 Hague Convention. Respondent Bracha Leibowitz Stone responded to the factual allegations of the Petition, opposed the return of the Minor Children to Israel, and requested attorneys fees and costs. The Court held an evidentiary hearing and denied the Petition for return.

On December 20, 2019, the Court held a telephone status conference with the parties, during which Respondent’s counsel reiterated her request for attorneys’ fees and costs. The District Court pointed out that Respondent’s counsel argued that 42 U.S.C. § 11601, which implemented the Hague Convention, permits the Court to award fees and costs to a successful respondent. § 11601 has been superseded by 22 U.S.C. § 9001 el seq. Under the statute, a court ordering the return of a child pursuant to the statute “shall order the respondent to pay necessary expenses incurred by ... petitioner, including court costs [and] legal fees.” 22 U.S.C. § 9007(b)(3). There is no provision, however, by which a respondent is eligible to recover fees and costs from a petitioner. Moreover, other district courts have found that a prevailing respondent is not entitled to attorneys’ fees. See, e.g., White v. White. 893 F. Supp. 2d 755. 758 (E.D. Va. 2012) (noting that ICARA “does not provide for fees to a prevailing respondent, and indeed, does not even mention prevailing respondents”); Thompson v. Gnirk, No. 12-220, 2012 WL 3598854, at *17 (D.N.H. Aug. 21. 2012) (denying prevailing respondent’s request for attorneys’ fees because ICARA provides “no such [fee-shifting] provision for a prevailing respondent”). Furthermore, “[u]nder the American rule, each party normally must bear the burden of its own legal expenses, including attorneys’ fees.” Wilkes Barre Hosp. Co., LLC v. Wyo. Valley Nurses Ass’n Pasnap, 453 F. App’x 258, 261 (3d Cir. 2011) (quoting Mobil Oil Corp. v. Indep. Oil Workers Union, 679 F.2d 299, 305 (3d Cir. 1982)). The Court found no basis to depart from this principle in this case, and denied Respondent’s request for an award of fees and costs.

Ogawa v Kang, 2020 WL 119960 (Tenth Circuit, 2020) [Japan][Rights of Custody][Petition denied]

In Ogawa v Kang, 2020 WL 119960 (Tenth Circuit, 2020) Japanese national Takeshi Ogawa brought a Hague Convention action against his former wife, South Korean national Kyong Kang, alleging that she wrongfully removed their twin daughters from Japan to the United States in violation of his rights of custody and seeking an order requiring the twins to return to Japan. The district court denied Ogawa’s petition. The Tenth Circuit affirmed.

In 2003, Ogawa and Kang married in Japan. In 2006, Kang gave birth to twin girls. Until 2012, the family lived together, primarily in Japan. But in March 2013, Ogawa and Kang divorced. Married couples in Japan may divorce by agreement without judicial involvement. And when they do, the divorce agreement may provide the terms of any child-custody arrangements. Ogawa and Kang’s divorce agreement provided such terms. Ogawa filed an English translation of the Divorce Agreement with the district court. Under the heading “the person who has parental authority,” the Divorce Agreement states that Kang “shall obtain parental authority over” the twins, Ogawa “shall obtain custody of” the twins, and Ogawa “shall give due consideration to the welfare of [the twins] when exercising custody.” Under the same heading, the Divorce Agreement also provides that Ogawa “shall hand over [the twins] to [Kang] on the last day of March 2017[;] however, [Ogawa] shall continue to maintain the right of custody of [the twins].” Next, under the heading “[c]hild [s]upport, etc.,” the Divorce Agreement states that “[r]egardless of which party is entitled to custody, [Ogawa] shall acknowledge that he is obliged to pay 30,000 yen/month for each child for a period beginning in April 2017 until the month when [the twins] reach 20 years of age as child support to cover actual childcare expenses.” Finally, under the heading “[r]ight of visitation or other contacts,” the Divorce Agreement states that “either party can visit [the twins] once a year.”

After the divorce, the twins lived in Japan with Ogawa. But in October 2017, the twins traveled to South Korea to visit Kang’s family. While the twins were there, Kang took them to the United States without Ogawa’s permission. In April 2018, Ogawa filed his Hague Convention petition in the district court. The district court denied the petition, concluding, inter alia, that Ogawa failed to make a prima facie showing that Kang breached his rights of custody by bringing the twins to the United States.

The Tenth Circuit pointed out that to make a prima facie showing of wrongful removal and thereby obtain access to the return remedy, a petitioner must establish that “(1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of petitioner’s custody rights under the laws of that state; and (3) petitioner was exercising those rights at the time of removal or retention.” Shealy, 295 F.3d at 1122. Here, only the second element was at issue. To establish the second element, a petitioner must demonstrate by a preponderance of the evidence that he or she possesses rights of custody as that term is defined in the Convention. See § 9003(e)(1)(A); Abbott, 560 U.S. at 5 (explaining that “[t]he question is whether a parent has” any rights of custody “by reason of” parent’s rights in child’s country of habitual residence).

The district court found that Ogawa failed to demonstrate that the twins’ removal breached his rights of custody. In doing so, the district court examined the Divorce Agreement and concluded that after March 31, 2017, Kang had “full parental authority under Japanese law with the right to all decision-making authority for the children” and Ogawa had the right to “exercise[e] some physical custody[ ] at undetermined future dates.” Thus, it concluded, Kang’s decision to remove the children did not violate Ogawa’s rights of custody.

Ogawa and Kang agreed that the twins were habitually resident in Japan at the time of their removal to the United States. Thus, to determine if Ogawa’s rights were rights of custody, it  looked to Japanese law “to determine the content of [his] right[s].” Abbott, 560 U.S. at 10. And because the parties agreed that the Divorce Agreement governed their custody arrangement, it determines Ogawa’s rights under the Divorce Agreement as interpreted under Japanese law.

           

The terms of the Divorce Agreement provide that Kang “shall obtain parental authority over” the twins and Ogawa “shall obtain custody of” the twins. That same section also instructs Ogawa to “hand over” the twins to Kang no later than March 31, 2017, but notes that he “shall continue to maintain the right of custody” after that date. Another section requires Ogawa to begin paying child support to Kang in April 2017, after he “hand[s] over” the twins to Kang. Finally, the Divorce Agreement allows either parent to visit the twins once a year, and it obligates Ogawa to purchase the plane tickets for those visits. Ogawa argued—by relying on American legal principles of contract interpretation—that according to the “plain meaning” of the word “custody” in the Divorce Agreement, he “had custody rights under Japanese law.”. But it was the Convention’s definition of rights of custody and the content of Japanese law that guided the court, not “our somewhat different American concepts of custody.” Furnes v. Reeves, 362 F.3d 702, 711 (11th Cir. 2004), abrogated on other grounds by Lozano v. Montoya Alvarez, 572 U.S. 1 (2014); see also Abbott, 560 U.S. at 12 (explaining that Convention “forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions”). And Ogawa did not tell the court what “content” the word “custody” in the Divorce Agreement has under Japanese law or how that might fit within the Convention’s definition.  In contrast to Ogawa’s undefined “custody” right, the Divorce Agreement specifically grants Kang “parental authority.” And Japanese law delineates which rights are included in “parental authority”: for example, under Japanese law, a parent with “parental authority” over a child has authority to determine that child’s “[r]esidence.” Thus, “parental authority” under Japanese law falls squarely within part of the Hague Convention’s definition of rights of custody—a definition that specifically includes, “in particular, the right to determine the child’s place of residence.”. And the Divorce Agreement grants parental authority only to Kang; it nowhere states that Ogawa also has parental authority.

Relying on Abbott Ogawa argued “that even minimal rights ... are nevertheless ‘rights of custody’ under the Convention.” There, the Supreme Court held that a father had rights of custody under the Convention even though the mother had sole custody and the father had visitation rights. See Abbott, 560 U.S. at 5–6. But critically, the father also had a ne exeat right—which, under the relevant country’s domestic law, gave the father “the authority to consent before the other parent may take the child to another country.” Thus, the Supreme Court concluded in part that because the ne exeat right gave the father “the joint ‘right to determine the child’s place of residence,’ ” it met the definition of rights of custody under the Convention. But here, the Divorce Agreement did not grant Ogawa a ne exeat right. That is, the Divorce Agreement does not provide that Ogawa has any authority to prevent Kang from taking the twins to a different country. 

The Convention also provides that rights of custody include “rights relating to the care of the person of the child.” To determine whether Ogawa had such rights, the Divorce Agreement, specifically provided only Kang with parental authority. And parental authority, under Japanese law, includes not only the authority to determine a child’s place of residence, but also a broad collection of other rights-including, among others, the rights to “care for and educate the child,”, to discipline the child, to handle the child’s money, and to take legal actions on behalf of the child. 

The Court pointed out that simply because Ogawa had some rights to the twins did not automatically mean that the content of those rights amounts to rights of custody under the Convention. For instance, the Convention itself recognizes that not all of a parent’s rights qualify as rights of custody: it also recognizes “rights of access.” Hague Convention, art. 5 (“ ‘[R]ights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”). A parent with only rights of access cannot invoke the return remedy, see Abbott, 560 U.S. at 9. Thus, even if the Divorce Agreement gave Ogawa some rights, Ogawa had to demonstrate those rights are rights of custody as defined by the Convention. This he failed to do.

In sum, Ogawa did not carry his burden to show, by a preponderance of the evidence, that he had rights of custody as the Convention defines them. See § 9003(e)(1)(A); Abbott, 560 U.S. at 5. Instead of explaining what his rights were under the Divorce Agreement, Ogawa insisted simply that because he had some rights, no matter what those rights actually are, their “nature and extent” is “irrelevant.”

The Court also rejected Ogawa’s argument that he must have some rights of custody because the Japanese Central Authority forwarded his application for Hague Convention assistance to the U.S. Central Authority. Ogawa’s argument stemmed not from the terms of the Convention itself, but from provisions of Japanese law that implemented the Convention. Ogawa argued that Japanese law requires the Japanese Central Authority to dismiss applications under the Convention if “[i]t is obvious that the applicant does not have the rights of custody.” Thus, Ogawa reasoned, when the Japanese Central Authority did not dismiss his application, it acknowledged that he had some rights of custody. However, the Implementation Act does not state that by passing on the application, the Japanese Central Authority has determined as a matter of law that the applicant does have rights of custody. Further, and perhaps more importantly, Japanese law governs whether Convention rights of custody exist, not a foreign administrative body’s preliminary assessment of that law. See Abbott, 560 U.S. at 10, 12. It, therefore, rejected Ogawa’s argument that he has rights of custody under the Convention simply because the Japanese Central Authority transmitted his application to the United States.

Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) [Mexico][Grave Risk of harm] Petition granted]

In Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) Petitioner alleged that in January 2019, Respondent wrongfully removed Petitioner and Respondent’s two daughters, ages 9 and 10, from Mexico to the United States The Court ordered that the two children be returned to Mexico.

Before January 2019, Petitioner and Respondent lived in Mexico with their two minor children. Respondent describes their living situation as fraught with conflict, anger, and violence. In January 2019, Respondent took the parties’ two minor children and moved to Michigan.  After locating the children in Michigan, Petitioner filed an initial complaint in this Court on July 12, 2019. On October 29, 2019, the Court dismissed the case without prejudice for failure to serve Respondent. On October 30, 2019, Petitioner filed a second complaint for the immediate return of the two children to Mexico pursuant to the Hague Convention and its implementing statutes.

Respondent did not contest any element of the Petitioner’s prima facie case. Petitioner met his burden. Respondent raised three affirmative defenses under the Hague Convention: there is a grave risk of harm to the children if they are ordered to return to Mexico, the children have acclimated to living in Michigan, and they object to being returned to Mexico. The Court held that Respondent had not met her evidentiary burden with respect to her first and third defenses. Respondent’s second defense failed as a matter of law.

Article 13(b) of the Hague Convention provides that a court may decline to order the return of a child if there is a “grave risk that [their] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” 42 U.S.C. § 11603(e)(2)(A) provides that this defense must be shown by clear and convincing evidence.

Respondent made the following allegations related to abuse:• The children have witnessed the Petitioner act violently toward their stepbrother. • Petitioner forcibly shaved Respondent’s son’s head, physically abused him, and forced him out of the marital home.• Petitioner refused to feed the two minor children when Respondent was traveling for business. • Petitioner violently and aggressively brushed their oldest daughter’s mouth, using soap as toothpaste, as he forcibly undertook this act with her toothbrush. • The petitioner physically and sexually abused Respondent. She alleges there is a restraining order issued in Mexico preventing the Petitioner from approaching or being in the presence of the Respondent or their daughters.

In Respondent’s initial filings, she also included psychological reports of the two children from October 14, 2019. The reports, prepared by a Mexican provider following video teleconferencing appointments with the children, concluded that they each suffered from “posttraumatic stress disorder, depression, anxiety, and general fear, caused by living in an environment with the paternal figure that was as psychologically violent as it was physically.”

The Court found Respondent's allegations of the Petitioner’s violence towards her credible and concerning. Testimony regarding the alleged violence towards Respondent’s son revealed that Petitioner did not forcibly shave his head, but instead took Respondent’s son to a barber to have his head shaved in connection with requirements for participation on a sports team. However, testimony showed that Petitioner physically assaulted Respondent’s son, forced him to stay in a shower against his will, and banished him from the parties’ home. Respondent conceded, however, “the minor children have not been physically assaulted”, nor have the daughters directly witnessed the physical abuse of their brother or mother. Testimony from the parties’ oldest daughter revealed that on one occasion, Petitioner poked her tongue with a toothbrush. The Court heard no evidence relating to food deprivation. These factual conclusions were confirmed by the Guardian Ad Litem’s report. Respondent presented no evidence beyond the initial mental health reports of any psychological harm to the children. Respondent did not call as a witness the psychologists who performed the evaluation; nor did she call any other mental health expert.

The Court observed that in Friedrich v. Friedrich, the Sixth Circuit noted that a grave risk of harm could exist in only two situations: First,...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, . . . in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, maybe incapable or unwilling to give the child adequate protection. 78 F.3d 1060, 1069 (6th Cir. 1996).

The first Friedrich situation did not apply. The children’s residence in Mexico was “in a lovely, family-friendly neighborhood.” The children “attend school, play and do activities.” “Their neighborhood was nowhere near the ‘warzone’ or ‘place of famine’ the Friedrich court contemplates.” Respondent did not contest this characterization.

Respondent did not provide evidence sufficient to satisfy the second Friedrich situation. In Simcox v. Simcox, the Sixth Circuit analyzed when abuse could rise to the level of a grave risk of harm. 511 F.3d 594 (6th Cir. 2007). The court emphasized that grave risk of harm analysis focuses on “the time period between repatriation and the determination of custody by the courts in the child’s homeland.” The court separated abuse cases into three categories: First, there are cases in which the abuse is relatively minor. In such cases, it is unlikely that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation’...In these cases, undertakings designed to protect the child are largely irrelevant; since the Article 13b threshold has not been met, the court has no discretion to refuse to order return, with or without undertakings. Second, at the other end of the spectrum, there are cases in which the risk of harm is clearly grave, such as whether there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. . . . In these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court’s orders...Third, there are those cases that fall somewhere in the middle, where abuse is substantially more than minor but is less obviously intolerable. Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return. Even in this middle category, undertakings should be adopted only where the court satisfies itself that the parties are likely to be particularly appropriate. Id. at 607-08.

The Court noted that Simcox court found the facts, in that case, to fall in the third, middle category. There, the father beat the children physically and abused the children’s mother in their presence. A psychologist found that the children suffered from Post-Traumatic Stress Disorder. The court emphasized that the Hague Convention “was never intended to be used as a vehicle to return children to abusive situations. ..[T]he Convention’s mandate of return ‘gives way before the primary interest of any person in not being exposed to physical or psychological danger.” Ultimately, the court found that “we cannot say, however, that the risk here is so grave that undertakings must be dismissed out-of-hand.” It remanded the case to the district court to determine what conditions could mitigate the grave risk of harm.

The Court found the abuse, in this case, to fall into Simcox’ first, “minor” category. The evidence, although serious, presented significantly less risk of harm to the children than did the evidence in Simcox. There, the children experienced direct physical abuse and witnessed the abuse of their mother. The court called the application of the grave risk defense to those facts “a close question.” Its determination relied on the serious nature of the abuse, its “extreme frequency,” the reasonable likelihood it would continue, and the likely exacerbation of the children’s PTSD upon return. Id. at 608-09. Here, Petitioner had not physically abused his children, nor had the children directly witnessed abuse of their mother or brother. Moreover, testimony portrayed the abuse as discrete incidents over a period of years. While Petitioner’s history of angry outbursts and violence towards Respondent and his stepson was concerning, it was not enough to show a grave risk of harm to the parties’ minor children. See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (physical abuse of spouse, when not also directed at child, insufficient to trigger grave risk exception in absence of allegations of physical or psychological abuse toward child); Aly v. Aden, No. 12–1960, 2013 WL 593420, at *17–18 (D. Minn. Feb. 14, 2013) (four minor instances of domestic violence against spouse, only one of which was witnessed by child, insufficient to establish grave risk of harm); Fernandez v. Bailey, 2010 WL 3522134, at *2–3 (E.D. Mo. Sept. 1, 2010) (emotional, psychological, and physical abuse of spouse insufficient to establish grave risk when petitioner was not violent, abusive, or neglectful to the children).

Moreover, beyond a passing of the Petitioner’s ability to “purchase” courts in Mexico, Respondent had not argued that Mexican courts are “incapable or unwilling to give the child[ren] adequate protection.”

Respondent’s second affirmative defense failed as a matter of law. Article 12 of the Hague Convention provides that if a proceeding is commenced more than one year after the removal of a child and the child has become settled in their new environment, a court need not order the child’s return. These proceedings commenced less than one year after removal, and the defense did not apply.

Article 13 of the Hague Convention provides that a court may consider a child’s objection to returning if the child “has attained an age and degree of maturity at which it is appropriate to take account of [their] views.” 42 U.S.C. § 11603(e)(2)(B) provides that Respondent must show the children’s objection by a preponderance of the evidence. A child’s objection is different from a child’s wishes, as would be considered in a custody hearing. Neumann v. Neumann, 310 F.Supp.3d 823, 835 (E.D. Mich. 2018). An objection may require a child to set forth particularized reasons why they object as opposed to a mere general opposition to return. Yang v. Tsui, 499 F.3d 259, 279 (3d Cir. 2007). This Court had previously considered the objections of children as young as eight. See Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957-58 (E.D. Mich. 2001) (finding that Hague Convention imposes no age limit on defense and eight-year old’s views may be considered).

The Court heard testimony in chambers, and on the record, from the parties’ older daughter, after which the Court determined that she had the level of maturity required to understand the proceedings and to provide meaningful testimony. She explained that she liked attending school in Michigan more than in Mexico because her classmates in Mexico would make fun of her for wearing glasses. She said that her father was often angry, and she would prefer to live with her mother. When asked where she would prefer to live, she said she would prefer to live in Michigan because she feels she will be “more successful” here than in Mexico. The child’s testimony did not rise to the level of objection required. Her opinions about her school, friends, parents, and future success all demonstrated a preference of a ten-year-old child for staying one place over another; however, a comparative preference of this nature lacks the particularity required to satisfy the narrow affirmative defense under Article 13. The Court found the child’s testimony to be more akin to a child’s wishes that could play a role in a custody hearing, than the particularized objections required under the Hague Convention, Yang v. Tsui, 499 F.3d at 279. See, e.g., Haimdas v. Haimdas, 720 F. Supp. 2d 183, 206 (E.D.N.Y. 2010) (finding an articulation of a comparative preference for climate, education, and recreational activities insufficient to invoke affirmative defense).

Because Petitioner had met his prima facie case and Respondent had not shown an affirmative defense, the Court ordered the children’s return to Mexico.