Jacquety v Baptista, 2020 WL 5946562 (S.D.N.Y.,2020) [Spain] [Summary Judgment] [“Respondent” defined]

In Jacquety v Baptista, 2020 WL 5946562 (S.D.N.Y.,2020)  Petitioner Guillaume Jacquety filed a petition against his estranged wife, Respondent Geraldine Helena Tena Baptista  and her alleged boyfriend, Yousseff Wadghiri. The court construed a pre-motion letter submitted by Wadghiri and a letter response from Jacquety and a reply letter from Wadghiri  as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and the motion was denied.

 

Jacquety and Baptista were married in France on May 23, 2014. Their minor child, EJ was born a little over a year later, on April 23, 2014 in Casablanca, Morocco, where the couple made their home. The Child lived in Morocco with both parents until November 3, 2018 when Baptista took the Child to Switzerland to visit Baptista’s mother. Jacquety alleged that Baptista’s mother, an employee of the Portuguese Embassy in Switzerland, helped Baptista to obtain forged Portuguese travel documents for the Child. Instead of returning to Morocco after the visit, Baptista used those documents to take the Child to New York City on November 8, 2018. Jacquety alleged that, upon arriving in New York, Baptista brought the Child to the home of Wadghiri, a radiologist living in Manhattan with whom she was and is having a romantic relationship. According to Jacquety, Wadghiri assisted in planning and executing the scheme, and since November 2018, he and Baptista have wrongfully kept the Child in New York. In a jointly filed answer to the Petition, Baptista and Wadghiri denied these allegations. They asserted that Jacquety “consented to or acquiesced in” the Child’s removal to New York. Baptista and Wadghiri explain that Jacquety has a history of drug and alcohol abuse, has abused these substances in front of the Child, and has physically abused both Baptista and the Child. The Answer details numerous alleged instances of violence and abuse on the part of Jacquety against Baptista, in many cases endangering the Child. Jacquety denied these allegations.

 

In the August 27 Letter, Wadghiri argued, inter alia, that he was an improper respondent in the case because he was not a relative or a custodial parent and had no control over Baptista or the Child. The sole issue was whether Wadghiri was named as a proper respondent. Wadghiri argued that he was an improper respondent because he is incapable of complying with any order rendered against him by this Court. He maintained that because he is neither a relative nor a custodial parent, and Jacquety  offered no evidence that he had control over Baptista or the Child, Wadghiri would be unable to carry out an order directing the return of the Child to Morocco. 

Jacquety  argued that under the Hague Convention any person alleged to have wrongfully removed or retained a child, aided in a child’s abduction, or participated in the abduction by providing shelter, may be named as a respondent. According to Jacquety, because of Wadghiri’s extensive role in the removal of the Child, he has been appropriately named.

 

The district court observed that a “respondent” is defined in ICARA as “any person against whose interests a petition is filed in court ... which seeks relief under the Convention.”  § 9002(6). The Pérez-Vera Report further explains that under the Hague Convention, responsibility for child abduction was not meant to be limited “exclusively to one of the parents,” and the Convention adopted a “wide view” under which others could be liable, including as examples, “a grandfather or adoptive father.” Likewise, the Special Commission Report acknowledges “the possibility of people, other than the father and mother ... becom[ing] the active subjects in such actions.” Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. To give meaning to this principle, the standing doctrine delineates “those disputes which are appropriately resolved through the judicial process.” To establish standing, a plaintiff must show “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” The parties’ arguments in this case focused on the third prong: redressability. To establish redressability, a plaintiff must show it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561. The plaintiff need not “show that a favorable decision will relieve his every injury.” Dep’t of Texas, Veterans of Foreign Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d 427, 432 (5th Cir. 2014). Instead, a plaintiff “need only show that a favorable ruling could potentially lessen its injury.” Sanchez v. R.G.L., 761 F.3d 495, 506 (5th Cir. 2014).

 

In addressing redressability in the ICARA context, the Fifth Circuit in Sanchez concluded that naming the director of a foster care program as a respondent did not present jurisdictional issues. 761 F.3d at 506. In Litowchak v. Litowchak, the district court held that a father could name his wife’s father as a respondent in an ICARA action. No. 15 Civ. 185, 2015 WL 7428573, at *1 (D. Vt. Nov. 20, 2015).  

As an initial matter, the Court was not persuaded that, because Wadghiri was not a relative or a custodial parent, he was an improper respondent here. Under ICARA, responsibility for child abduction is nowhere limited to a child’s parents or relatives. See 22 U.S.C. § 9001(a)(2) (“Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention.”); § 9002(6) (“ ‘[R]espondent’ means any person against whose interests a petition is filed in court ... which seeks relief under the Convention.”). The Pérez-Vera Report further supports an expansive view of the Hague Convention’s authority. See Pérez-Vera Report ¶ 81. The Report explains that, in defining who may be a “potential abductor,” the Convention purposefully “contains no express provision.” The Hague Convention instead adopted a “wide view,” characterizing wrongful removals carried out by not just parents, but also, as examples, “a grandfather or adoptive father” as child abduction. Likewise, the Special Commission Report explains that nonparents, such as “for example a more or less distant relative or one of the adoptive parents, etc.” may be subject to legal action under the Hague Convention. Special Commission Report ¶ 55. While Wadghiri correctly points out that the examples listed do not include “all other non-relatives,” the conclusion he draws from that omission -- that nonrelatives are categorically excluded -- defies reason. Both reports provide “examples,” an indication that neither list is meant to be exhaustive and other nonparent parties are expressly contemplated. See, e.g., Sanchez, 761 F.3d at 506 (holding that director of foster care agency was a proper respondent in ICARA action). Further, while Wadghiri  was not a blood relative, the evidence in the record could reasonably support a finding that he had a romantic relationship with Baptista, and that at least during some points in time, contemplated a family life with Baptista and the Child.

 

The Court held that Wadghiri’s alleged conduct brought him well within the Hague Convention’s scope.  Wadghiri’s claim that he “has no control over Respondent Tena Baptista or the Child” does not render Jacquety without standing to name him as a respondent. The Petition alleges, and Wadghiri did not deny, that Baptista and the Child currently lived with him. To the extent Wadghiri argued that he did not have control over either one, this assertion was contradicted by the text message evidence suggesting that, with the help of Baptista’s mother, Wadghiri coordinated travel arrangements for Baptista and the Child to arrive in New York, and that Wadghiri directed and encouraged Baptista to deceive Jacquety thereafter. The degree of Wadghiri’s control and leadership was a disputed issue of material fact, which rendered summary judgment inappropriate.  While Wadghiri alone may not be able to return the Child to Morocco, it was enough that he has “knowledge” of her whereabouts and can play some role in her return. See Sanchez, 761 F.3d at 506. That he cannot return her without Baptista’s assistance does not create a jurisdictional defect.  Even though Wadghiri may have “difficulty” carrying out a return order, to establish standing, a plaintiff “need not definitively demonstrate that a victory would completely remedy the harm. Finally, to the extent Jacquety seeks other remedies, including fees, Wadghiri asserted no barriers to providing that form of redress. See Litowchak, 2015 WL 7428573, at *2; Neves v. Neves, 637 F. Supp. 2d 322, 346-47 (W.D.N.C. 2009) (awarding fees against family friends who assisted in the abduction plan by making travel arrangements and allowing the children to live with them).

 

 

Nissim v Kirsh, 2020 WL 3496988 ( S.D. N.Y., 2020) [Israel] [Necessary Expenses]

In Nissim v Kirsh, 2020 WL 3496988 ( S.D. N.Y., 2020) Petitioner Dror Nissim (“Dror”), an Israeli citizen, and Respondent Orna Kirsh (“Orna”), a dual United States and Israeli citizen, were married in 2008 and had a Child who was a dual United States and Israeli citizen born in Israel. In 2018 Dror and Orna decided to move to California because Dror received a promotion that required relocation. Orna and the Child traveled to California one week ahead of Dror to prepare the living arrangements and prepare for the start of the Child’s school. However, while in California, Orna had a “revelation” that she wanted to leave her husband and live in New York with her child. Without informing her husband she took the Child and moved to New York. Dror filed a petition for return of a child pursuant to the Hague Convention and the International Child Abductions Remedies Act (“ICARA”). after the Court granted Petitioner Dror Nissim’s petition for return of a child to Israel, petitioner filed the motion for attorneys’ fees and costs. The court awarded $20,348.94 in costs and expenses and $88,370 in attorneys’ fees, for a total of $108,718.94.

The Court observed that the International Child Abduction Remedies Act (“ICARA”) provides that “[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). Although Article 26 of the Hague Convention provides that a court ‘may’ award ‘necessary expenses’ to a prevailing petitioner, [ICARA] shifts the burden onto a losing respondent in a return action to show why an award of ‘necessary expenses’ would be ‘clearly inappropriate.’ ” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) (citation omitted). In considering whether expenses are “clearly inappropriate,” courts in this Circuit consider factors including: (1) whether there was “a reasonable basis for removing the children to the United States,” (2) whether either party “engaged in forum shopping,” (3) “the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition,” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016); (4) “a respondent’s inability to pay an award,” (5) whether fees and costs will “deter such conduct from happening in the first place,”; and (6) whether the case is “not a ‘difficult one’ and ‘falls squarely within the heartland of the Hague Convention,” 

 

As for the appropriate amount of attorneys’ fees and costs, “[b]oth the [Second Circuit] and the Supreme Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case—creates a ‘presumptively reasonable fee.’ ” Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) The purpose of ICARA’s fee-shifting provision is “to restore the applicant to the financial position he or she would have been in had there been no removal or retention” and “to deter such conduct from happening in the first place.” Hague Convention, 51 Fed. Reg. 10494-501, 10511. Accordingly, “the court ... has the obligation to determine whether the requested fees and costs were ‘necessary’ to secure the child[ ]’s return.” Sanguineti v. Boqvist, No. 15-CV-3159, 2016 WL 1466552, at *2 (S.D.N.Y. Apr. 14, 2016) 

 

The Court held that Petitioner’s request for attorneys’ fees, expenses, and costs was not “clearly inappropriate.” Respondent’s conduct—of removing the Child whose habitual residence was Israel, without the consent of the father, and then deliberately misleading the father about the Child’s whereabouts—fell “squarely within the heartland of the Hague Convention.” Many of the equitable factors that courts consider in awarding fees and costs weigh in favor of awarding them here. First, Respondent wrongfully removed the Child and unilaterally moved to New York without any reasonable basis for believing that the move was appropriate. Petitioner did not consent to the removal nor was it authorized by law. Respondent has the ability to pay attorneys’ fees, costs and expenses. And finally, Respondent’s unilateral action was the cause of the petition for return and Petitioner did not cause the accumulation of the costs or fees. The Court found that the totality of the equitable factors weigh in favor of awarding attorneys’ fees and costs to Petitioner.

 

The Court first calculated the lodestar amount, keeping in mind that the purpose of ICARA’s fee-shifting provision which is to “restore the applicant to the financial position he or she would have been in had there been no removal or retention.” Hague Convention, 51 Fed. Reg. 10494-501, 10511. Courts determine the “reasonable hourly rate” by considering case-specific variables such as the complexity of the case, the amount of work required, the attorney’s experience, and awards in similar cases. Arbor Hill, 522 F.3d at 190. Courts determine the reasonableness of the hours expended by looking to their “familiarity with the case and [ ] experience with the case and [ ] experience generally as well as the evidentiary submissions and arguments of the parties.” The Court noted that generally, “[t]he reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Petitioner requested the following hourly rates: ($500/hr.); ($275/hr.); ($225/hr.); and paralegal (150/hr.). Notably, “courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Duran-Peralta v. Luna, No. 16-CV-7939, 2018 WL 1801297, at *2 (S.D.N.Y. Apr. 2, 2018) (collecting cases). The Court found that a fee of $425/hr. was reasonable for the senior partner and in line with awards for similarly experienced attorneys in similar cases. See e.g., In re One Infant Child, No. 12-CV-7797, 2014 WL 704037, at *4 (S.D.N.Y. Feb. 20, 2014), rev’d sub nom. Souratgar v. Lee Jen Fair, 818 F.3d 72 (2d Cir. 2016).  The Court found the following reasonable: for an associate counsel with fourteen years of experience in matrimonial litigation and family law, $275/hr.; for another associate attorney with ten years of experience and who served on the Young Lawyers Sub-Committee of the New Jersey State Bar Association Family Law Executive Committee,  $225/hr. See, e.g., In re One Infant Child, 2014 WL 704037 at *4 (awarding $300 per hour to a “fourteen year associate”). Finally, a paralegal with over thirty-five years of legal experience, $150/hr. See e.g., Sanguineti, 2016 WL 1466552, at *4 (collecting cases to support a rate of $129 per hour for paralegal work).  The Court found that the total amount of 201.2 hours of attorney time and 53.6 hours of paralegal time wass reasonable given the difficulty of the legal issues in this case, the protracted nature of the litigation, and the quality of lawyering by Petitioner’s counsel. Multiplying the hours expended by the hourly rates set forth above, the lodestar—i.e., the presumptively reasonable attorneys’ fee—was $88,370.

 

Petitioner requested $27,905.48 in costs associated with litigating this action and $14,742.14 in travel expenses associated with court appearances, travel to New York for visitation, and the return of the Child to Israel. The costs included $6,500 for Israeli counsel Shmuel Moran, $14,625 in expert fees for Dr. Dov Frimer, $2,121.28 for translation services, $1,750 for a court interpreter, and $2,909.20 for costs including pleading charges, attorney transportation, transcript costs, and filing fees. The Court concluded that the costs of Dr. Frimer’s testimony and Mr. Moran’s fees should be excluded. Dr. Frimer provided the Court with seven pages of written testimony, and Mr. Moran conducted work and filed documents in Israel. Neither Dr. Frimer nor Mr. Moran represented Petitioner in the action, and they were  “not entitled to be compensated for legal advice and strategy regarding [Petitioner’s] case in this Court, nor may they recover for coordination between proceedings in this Court and other foreign tribunals.” In re One Infant Child, 2014 WL 704037, at *5. Moreover, the documentation submitted to account for Mr. Moran and Dr. Frimer’s fees was inadequate.  The Court awarded Petitioner’s remaining costs—including the costs of travel expenses associated with the visitation schedule, translation services, interpreter services, transcript costs, and filing fees—which were adequately documented and were “necessary expenses incurred by or on behalf of the petitioner. The largest of these costs was $14,742.14 in expenses related to court appearances, travel to New York for visitation, and the return of the Child to Israel. 

 

The Court pointed out that a respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 (2d Cir. 2016). Respondent owned several properties, including an investment property, and the collective value of these properties greatly exceeded the total award of $108,718.94. Respondent had a successful and gainful career in Israel before moving to the United States and had earning potential in the future.; see also e.g., Sanguineti, 2016 WL 1466552, at *9 (“Respondent’s background, education, and work experience all indicate that he has significant earning potential in the future.”). The Court found that the total award did not exceed Respondent’s total assets nor did it justify a downward departure. Cf. Souratgar, 818 F.3d at 81 n.3 (“[A]n expenses award that is greater than a respondent’s total assets ... at a minimum, require[s] a reasoned explanation.”).

 

Wtulick v Filipkowska, 2020 WL 1433877 (E.D. N. Y., 2020) [Poland] [Necessary expenses]

      In Wtulick v Filipkowska, 2020 WL 1433877 (E.D. N. Y., 2020) the Petitioner Nikodem Wtulich (“Wtulich”) sought  an award of attorneys’ fees and costs reasonably incurred in the successful prosecution of his petition for the return of his daughter AW to Poland. Wtulich sought payment of $22,252.00 in attorneys’ fees and $20,842.12 in costs. The District Court ordered respondent Magda Filipkowska (“Filipkowska”) to reimburse Wtulich $19,699.47, consisting of $14,887.50 in reasonable attorneys’ fees and $4,811.97 in compensable costs.

  The district court found that having prevailed on his petition, Wtulich was entitled to an award of “necessary expenses ... including travel expenses, ... the costs of [Wtulich’s] legal representation ..., and those of returning” AW to Poland. See Hague Convention, Art. 26; T.I.A.S. No. 11,670, at *6-7. ICARA further provides that such payment is mandatory unless the respondent establishes that an order awarding expenses “would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). It is within the court’s discretion to determine whether an award of necessary expenses is “clearly inappropriate.” See Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) (“Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when ‘attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.’ ”)  Because “there is no precise rule or formula for making these determinations, ... equitable discretion should be exercised in light of the relevant considerations.” Courts in this district have made such determinations “on a case-by-case basis.” See Haimdas v. Haimdas, 2011 WL 13124276, at *1 (Aug. 29, 2011) (collecting cases). The court found it would not be clearly inappropriate to award Wtulich payment of necessary expenses in this case where “the case is not a ‘difficult’ one and ‘falls squarely within the heartland of the Hague Convention.’ ” Duran-Peralta v. Luna, 2018 WL 1801297, at *2 (S.D.N.Y. Apr. 2, 2018); cf. Ozaltin, 708 F.3d at 375 (award was inappropriate where the respondent had a reasonable basis to believe that her actions were legal at the time of the removal at issue); Onrust v. Larson, 2015 WL 6971472, at *7 (S.D.N.Y. Nov. 10, 2015) (denying an award where the respondent had a credible basis to believe that petitioner had relinquished custody by the time of the removal at issue). While the court can consider the parties’ respective financial circumstances in determining the propriety of an award, Filipkowska’s argument was not that she faced any hardship in paying Wtulich’s expenses, but only that he was better able than she to endure them. 

  The Court noted that Courts in this circuit have used the “lodestar method” to assess a prevailing petitioner’s request for fees under the Hague Convention. This method determines the “presumptively reasonable fee” by multiplying the reasonable hourly rate with the reasonable number of hours expended on a case. District courts have broad discretion, using “their experience with the case, as well as their experience with the practice of law, to assess the reasonableness” of each component of a fee award. 

       Wtulich sought to compensate his attorneys at the following hourly rates: $450 and $350 The court stated that such rates are higher than those that surrounding districts have approved in comparable cases. A reasonable hourly rate is the minimum rate a client would be willing to pay to litigate the case effectively. See, e.g., Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). Courts in surrounding districts have generally approved hourly rates no higher than $425 for such litigation and have typically approved rates of $200 to $400, depending on the relevant attorney’s experience. See, e.g., Duran-Peralta, 2018 WL 1801297, at *2 (collecting cases); see also Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998) (awarding $350 per hour in Hague Convention cases for “very experienced” counsel with over 20 years of experience handling 165 cases under the convention). Consistent with these rates, the Court awarded Wtulich reimbursement of his attorneys’ fees at the following hourly rates: $400, $275 and $225. Wtulich sought to compensate his attorneys for 63.5 hours of work. “A fee applicant bears the burden of demonstrating the hours expended and the nature of the work performed through contemporaneous time records that describe with specificity the nature of the work done, the hours, and the dates.”. The records must be specific and detailed. In determining the number of hours for which fees should be awarded, the court should not compensate counsel for hours that are “excessive, redundant, or otherwise unnecessary.” See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court found the claim for 63.5 hours of compensable work to be reasonable. It  concluded that Wtulich was entitled to an award of attorneys’ fees in the total amount of $14,887.50.

         Wtulich sought reimbursement of $9,700 for “Law Office Musa-Obregon. To the extent the claimed amount included legal fees, the court already awarded an appropriate amount. To the extent it sought litigation costs, Wtulich had not submitted any itemization or supporting documentation. It denied the request for reimbursement of that item. Wtulich claimed $4,738 for “Law Office Robert Openchowski. The supporting  document was all in Polish. The Court was unable to determine the extent to which it represented contemporaneous billing records, the extent to which any claimed costs or fees are reasonable, or why attorney Openhowski  failed to provide Wtulich with an English-language itemization of his bill despite being admitted to the New York bar. It denied reimbursement of this item. Wtulich provided no receipts or other supporting documents for his claim of $29.50 in transportation costs to attend the bench trial on April 23-24, 2018. However, he reasonably explained that the amount represented bus fare for which he was provided no bill. Wtulich provided no documents supporting his claim for $600 as the cost of accommodations for four days before his return trip to Poland with AW. The court denied reimbursement of this item.  The Court approved the remaining itemized expenses, all of which was adequately documented. $1,484 in travel and accommodation costs to prepare for and prosecute the bench trial in April 2018; $115.15 in PACER fees to monitor the litigation; and $3,187.37,  travel and accommodations for Wtulich’s trips to the United States in 2014. He made such trips not simply to visit AW, as Filipkowska insisted, but also to negotiate for her return to Poland without the need for litigation and to forestall the possibility that Filipkowska would abscond with AW and make her unavailable for return. 

Alvarado v Castanos, 2020 WL 3791569 (11th Cir., 2020)[Chile] [on remand] [Petition granted]

In Alvarado v Castanos, 2020 WL 3791569 (11th Cir., 2020) (not selected for publication) in  a previous appeal, involving Hague Convention proceedings initiated by Karen Berenguela-Alvarado, a Chilean citizen, who was seeking the return of her young daughter, EICB Berenguela-Alvarado alleged that EICB’s father, Eric Castanos—a naturalized U.S. citizen—wrongfully retained EICB in Florida while she was on a short-term visit and coerced Berenguela-Alvarado into signing a document purporting to consent to that retention. In the original proceedings, the district court found that although Berenguela-Alvarado had made out a prima facie case that Castanos had wrongfully retained EICB, Berenguela-Alvarado had consented to that retention and therefore wasn’t entitled to EICB’s return.” Berenguela-Alvarado appealed. The Ninth Circuit vacated and remanded the district court’s order, concluding that it had erred in two respects: (1) “[a]s a matter of fact ... by relying on non-existent testimony that Castanos never threatened Berenguela-Alvarado as a means of securing her consent to EICB staying the United States”; and (2) “[a]s a matter of law ... by shifting the burden on the consent issue back to Berenguela-Alvarado, requiring her to prove by a preponderance of the evidence that Castanos’s threat constituted ‘duress.’ ”(Berenguela-Alvarado v. Castanos, 950 F.3d 1352 (11th Cir. 2020). On remand the district court granted Berenguela-Alvarado’s petition for EICB’s return. Although Castanos requested that the record be reopened so that he could present further evidence on his affirmative defenses, the district court held that he had “provide[d] no persuasive reason the Court need[ed] to accept additional evidence on remand,” as he had already been given an opportunity to call witnesses and present his case in the initial proceedings. The district court went on to find that Castanos hadn’t met his burden to prove his asserted affirmative defenses.

 Castanos appealed the district court’s order on remand. He made two arguments: (1) that the district court erred in failing to consider the Supreme Court’s holding in Monasky v. Taglieri, 140 S. Ct. 719 (2020)—which was issued the same day as the  Court’s opinion in the first appeal—in its analyses of EICB’s habitual residence and his consent defense; and (2) that the district court abused its discretion by declining to reopen the record. Finding no error or abuse of discretion, the Ninth Circuit affirmed. 

It reviewed he denial of a motion to reopen the record for abuse of discretion. Cambridge Univ. Press v. Albert, 906 F.3d 1290, 1298 (11th Cir. 2018). Castanos contended that—in light of Monasky’s holding—the District Court erred in not allowing an additional or supplemental evidentiary hearing on remand, and denying [his] specific request for the same. This argument was unavailing. Castanos had ample opportunity to present evidence of his affirmative defenses during the original proceedings. The district court, therefore, acted well within its “sound discretion” in denying his request to reopen the record, especially in light of the sensitive and expedited nature of Hauge Convention petition.

Alvarado v Castanos, --- F.3d ----, 2020 WL 896487 (11th Cir., 2020) [Chile] [Consent] [Remanded for further proceedings]

In Alvarado v Castanos, --- F.3d ----, 2020 WL 896487 (11th Cir., 2020) Karen Berenguela-Alvarado sought the return of her daughter—EICB—to Chile from Florida, where she was currently living with her father, Eric Castanos. Berenguela-Alvarado had permitted EICB to visit Castanos in the United States from December 2018 to March 2019. Castanos never returned her to Chile. Berenguela-Alvarado consequently initiated Hague Convention proceedings in federal district court to get her daughter back. The district court found that although Berenguela-Alvarado had made out a prima facie case that Castanos had wrongfully retained EICB, Berenguela-Alvarado had consented to that retention and therefore wasn’t entitled to EICB’s return. The Eleventh Circuit found that (1) as a matter of fact, the court erred by relying on non-existent testimony that Castanos never threatened Berenguela-Alvarado as a means of securing her consent to EICB staying in the United States; and (2) as a matter of law, the court erred by shifting the burden on the consent issue back to Berenguela-Alvarado, requiring her to prove by a preponderance of the evidence that Castanos’s threat constituted “duress.” It therefore vacated and remanded the district court’s order for further proceedings in accordance with this opinion.

  Berenguela-Alvarado, a Chilean citizen, and Castanos, a naturalized U.S. citizen, were the parents of EICB. EICB is a dual citizen of Chile and the United States, but since her birth she has consistently lived in Chile with her mother. Castanos has acknowledged EICB as his daughter since she was three months old, and he has reliably provided child support and had regular contact with her since then, making several visits a year to Chile. EICB visited Castanos in the United States for the first time in February 2018; she stayed with him for two months and then returned to Chile. Berenguela-Alvarado later gave EICB permission to travel to the United States a second time. Castanos bought EICB a round-trip airline ticket for the trip, with a departure date of December 30, 2018, and a return date of February 28, 2019. Berenguela-Alvarado gave permission for EICB to stay in the United States until the end of March in the event Castanos kept her longer than originally planned, as he had on her previous visit. In early February 2019, during EICB’s second visit to the United States, Castanos “proposed” to Berenguela-Alvarado that EICB stay with him in the United States permanently, as he felt he could provide a better life for her here. Berenguela-Alvarado resisted, telling Castanos that she didn’t want EICB to “think that [she] had abandoned her.” Berenguela-Alvarado testified that in response to her resistance, Castanos “started pressuring” her to let EICB stay with him. As a result, she asserted that she “tentatively agreed” to Castanos’s proposal, to ensure that she would see EICB in July 2019, at a minimum—the terms of Castanos’s deal being that EICB would stay with him in the United States, that the two would go to Chile in July to visit Berenguela-Alvarado, that Berenguela-Alvarado could visit EICB once a year in Miami, and that she wouldn’t have to pay any child support. Berenguela-Alvarado said that she “agreed only because she just wanted her daughter to come back in July,” and that when she began to “express [] hesitation and s[eek] clarification [as] to what was going on,” Castanos—this is important— “threatened to hold [EICB] for good and told [Berenguela-Alvarado] she would never see her [daughter] again.”

To effectuate his plan, Castanos enlisted the help of his friend Doris Baquero, who worked at the Florida Department of Juvenile Justice. Baquero sent Berenguela-Alvarado a letter to sign that purported to give consent for EICB to stay in the United States with Castanos. The consent letter, dated February 10, 2019, stated as follows: Effective May 5, 2019, I, Karen Edith Berenguela Alvarado, is giving consent to my daughter, [EICB], ... to reside with her father, Eric Castanos, in the United States. [EICB] will be residing in the United States for the purpose of improving her quality of life, education, physical health and nutrition. Eric Castanos will fully be responsible for [EICB’s] housing, nutrition, clothing, education, personal hygiene and physical health. [EICB] will visit her maternal family in Chile the months of summer break from school in the United States. Karen Edith Berenguela Alvarado is in full agreement with this letter and her signature confirms her knowledge and consent. Berenguela-Alvarado testified that she felt that she “was under pressure” and that she “said yes” to Castanos’s proposal “because otherwise he wouldn’t bring [EICB] back.” She further testified that Castanos “was going to request custody if [she] didn’t sign the document.” So, she says, although she signed the letter, she didn’t intend to consent to EICB staying in the United States permanently. As part of their plan, Castanos and Baquero asked Berenguela-Alvarado to renew EICB’s U.S. passport and have the consent letter notarized. Berenguela-Alvarado renewed EICB’s U.S. passport in February 2019, but she ultimately skipped two appointments that she had scheduled at the local U.S. embassy to get the letter notarized. Instead, she texted Baquero a picture of the signed letter—she never sent the hard copy—which Baquero then notarized outside of Berenguela-Alvarado’s presence.

Later in February, Berenguela-Alvarado sent Baquero the following e-mail: Doris, good afternoon, I appreciate everything, but I changed my mind. I have everything ready for [EICB] to return. Her uniform and school supplies, she starts classes on March 4th at Primary school. It is very important that she starts when it’s appropriate so she won’t fall behind. Thanks for everything. Despite Berenguela-Alvarado’s request that EICB be back in Chile before school started, Castanos kept her in the United States after her travel-authorization period ended. This litigation ensued.

 

In June 2019, she filed a petition under the Hague Convention in the Southern District of Florida. Berenguela-Alvarado alleged that Castanos had been unlawfully retaining EICB since her travel authorization expired in March 2019, and she insisted that she had never consented to EICB staying in the United States.  The district court held an evidentiary hearing to determine whether Castanos had wrongfully retained EICB. The vast majority of the evidence that Castanos presented bore on his first affirmative defense—namely, that EICB would face a grave risk of harm if returned to Chile—and he and other witnesses testified about EICB’s mental and physical health and asserted that she would enjoy a better quality of life in the United States than Chile. Importantly for our purposes, Castano didn’t present any evidence pertaining to Berenguela-Alvarado’s purported consent. Rather, the sole evidence about consent came from Berenguela-Alvarado—she testified that she signed the consent letter because Castanos “said he was not going to bring [EICB] back, and he was going to request custody if [she] didn’t sign the document.” She further testified that in signing the letter, she did not intend to consent to EICB remaining in the United States permanently.

  Although the district court agreed with Berenguela-Alvarado that she had established a prima facie case of wrongful retention under the Hague Convention, it held that she was not entitled to EICB’s return because it found that she had consented to that retention. The court held that by “sign[ing] a [consent] document, t[aking] a picture of it, and sen[ding] that picture to Baquero,” Berenguela-Alvarado had demonstrated “her subjective intent to allow EICB to remain in the U.S.” Importantly, the court acknowledged that if Castanos had threatened Berenguela-Alvarado as she alleged, that “statement would amount to duress.” But—again, importantly—the Court held that “Castanos denied making this statement and there is no documentary support for Berenguela-Alvarado’s assertion.” The district court found that Berenguela-Alvarado’s evidence concerning her communications with Castanos demonstrated “a contentious relationship” but did “not rise to the level of ‘improper and coercive’” behavior so as to satisfy the standard for duress. The court further rejected Berenguela-Alvarado’s argument that the consent letter should be discounted due to its legal deficiencies—it held that although “many questions exist[ed] as to the legal efficacy of the Consent Letter,” those questions were irrelevant because a parent’s consent doesn’t have to be formal under the Hague Convention. 

 

Berenguela-Alvarado appealed the district court’s order. The sole issue on appeal was whether the district court erred in ruling that Berenguela-Alvarado consented to Castanos’s retention of EICB. On appeal the parties agreed that Berenguela-Alvarado satisfied her prima facie burden regarding wrongful retention; the parties’ dispute focused exclusively on Castanos’s affirmative defense of consent. The sole affirmative defense at issue was consent, which the district court found to be “dispositive.” The consent defense requires the retaining/removing parent to prove by a preponderance of the evidence that the petitioning parent “consented to ... the removal or retention.” Hague Convention, art. 13(a); 22 U.S.C. § 9003(e)(2). The petitioning parent’s consent needn’t be formal, but “it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005). The focus of the court’s inquiry should be on the petitioning parent’s “subjective intent,” and should take into account “[t]he nature and scope of the petitioner’s consent, and any conditions or limitations” on that consent. The district court’s analysis of the consent defense centered almost exclusively on the consent letter that Berenguela-Alvarado signed. It was Berenguela-Alvarado who introduced the letter—in fact, Castanos objected to the letter’s admission, arguing that it was hearsay. With respect to the circumstances surrounding the letter’s signing, the district court made a clearly erroneous finding of fact regarding Castanos’s testimony. Although the district court acknowledged that if Castanos had threatened Berenguela-Alvarado as she claimed, it “would amount to duress”—and thus presumably vitiated her consent—it held, as a matter of fact, that “Castanos denie[d] making this statement.” That was incorrect. Castanos never actually denied threatening Berenguela-Alvarado. The district court therefore clearly erred in relying on non-existent testimony as a basis for holding that Castanos had shown that Berenguela-Alvarado had consented to EICB’s retention in the United States. He never testified that he didn’t make the threat. In mistakenly assuming that he had, the district court may well have relied on Castanos’s post-hearing brief, which asserted—falsely and without citation—that he “provided testimony that he never threatened or pressured [Berenguela-Alvarado] to sign the consent” letter. None of the testimony that Castanos did give could be interpreted as constituting a denial that he threatened Berenguela-Alvarado. So, in short, the district court clearly erred by relying on non-existent testimony. Castanos never denied threatening Berenguela-Alvarado, as he falsely claimed in his supplemental brief and as the district court found. Thus, it was left with [a] definite and firm conviction that a mistake has been committed.” Seaman, 766 F.3d at 1261 

 

In addition to this clear factual error, the district court also committed a significant legal error. Once a petitioning parent has established a prima facie case of wrongful retention/removal under the Hague Convention, the burden shifts to the retaining/removing parent to prove one or more affirmative defenses—without proof of one of those defenses, the child must be returned to the petitioning parent. Here, though, the district court improperly—but expressly—shifted the burden back to Berenguela-Alvarado on the consent issue, erroneously treating her allegation that she signed the consent letter as a result of Castanos’s threat as a formal allegation of “duress” that she had to prove by a preponderance of the evidence. The courts expressly found that “Berenguela-Alvarado ha[d] not shown by a preponderance of the evidence that her consent was the product of duress.” This was improper. When it came to the consent defense, Castanos—alone—had the burden to prove by a preponderance of the evidence that Berenguela-Alvarado had actually, subjectively intended to allow EICB to remain in the United States. See 22 U.S.C. § 9003(e)(2)(B); Hague Convention, art. 13(a); Baxter, 423 F.3d at 371. Berenguela-Alvarado had no burden to prove anything related to Castanos’s consent defense. The district court therefore erred as a matter of law in shifting the burden of proof to Berenguela-Alvarado.

  These factual and legal errors tainted the rest of the district court’s analysis too severely to salvage its order. It therefore vacated and remand the district court’s order for further proceedings in accordance with its opinion. 

Pope v Lunday, 2020 WL 6817487 (10th Cir., 2020) [Brail] [Habitual Residence] [Newborn child] [Residence] [Petition denied]

In Pope v Lunday, 2020 WL 6817487 (10th Cir., 2020) (not selected for publication) Kenneth Pope appealed from the district court’s denial of his petition. He was a United States citizen who lives permanently in Brazil. Ms. Lunday joined Mr. Pope in Brazil in July 2018. The couple obtained a public deed of stable union in Brazil in December 2018. In March 2019, Ms. Lunday became pregnant with twins. When she was 19-20 weeks’ pregnant, she returned to Oklahoma. Mr. Pope understood her trip to the United States was for only a few weeks, to attend social and business events. But Ms. Lunday took her pet cat back with her, and she did not return to Brazil. The infants were born in Oklahoma in November 2019. Since then, they have resided there with Ms. Lunday. Mr. Pope filed his petition days after the birth, and argued that Ms. Lunday has wrongfully retained the twins in Oklahoma from the moment they were born. Focusing on the threshold question of whether the infants habitually resided in Brazil, the district court decided the petition without holding an evidentiary hearing. It first expressed doubt that newborn infants are capable of having a habitual residence. But even assuming that a newborn can have a habitual residence, it held that Mr. Pope had failed to establish that the infants’ habitual residence was in Brazil. It therefore held that Ms. Lunday had not wrongfully retained the infants, and it denied Mr. Pope’s petition. 

The 10th Circuit affirmed. It noted that the district court ruled without the benefit of the Supreme Court’s recent discussion of “habitual residence” in Monasky v. Taglieri, 140 S. Ct. 719 (2020). In Monasky the Court held that a habitual-residence determination is a fact-intensive question to be reviewed only for clear error. It pointed out that Monasky provides some guidance concerning whether a newborn might have a habitual residence. The Court stated there that the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. The Tenth Circuit could not conclude that the district court clearly erred in determining that Brazil was not the infants’ habitual residence.

The Court pointed out that the Hague Convention does not define the term ‘habitual residence.’” Monasky, 140 S. Ct. at 726. “A child ‘resides’ where she lives. Her residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.” The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” “[L]ocating a child’s home is a fact-driven inquiry,” in which “courts must be sensitive to the unique circumstances of the case and informed by common sense. In Monasky the Court rejected any “categorical requirements for establishing a child’s habitual residence,”, and held that “[n]o single fact ... is dispositive across all cases,” Ultimately, the question is, “Was the child at home in the particular country at issue?”.

  Mr. Pope’s position was an assertion that the court must rule that a newborn’s habitual residence is wherever the parents last agreed it would be. But Monasky rejected the proposition that any particular circumstance controls. It specifically held that although “the intentions and circumstances of caregiving parents are relevant considerations,” nothing requires an actual agreement between the parties. Ms. Lunday emphasizes that the infants had never even been to Brazil. But as with actual agreement, Monasky states that “[a]n infant’s mere physical presence ... is not a dispositive indicator of an infant’s habitual residence.” . “The bottom line is: There are no categorical requirements for establishing a child’s habitual residence[.]” “[A] wide range of facts ..., including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual. The district court’s ruling was consistent with Monasky’s “totality of the circumstances” approach. Rather than considering any factor to be dispositive, the court considered a wide range of factors. It noted that the infants were born in the United States; that both parents and children were United States citizens; and that Ms. Lunday had moved back to the United States while pregnant and the infants had not “spent a moment of their lives in Brazil” since birth. It discussed Mr. Pope’s actual-agreement argument but found that after their birth, “even granting Pope’s factual allegations every benefit of the doubt [,] there was never shared parental intent with respect to the children.” It rejected Mr. Pope’s contention that “Lunday can never withdraw from the pre-birth agreement she allegedly had with Pope [and] is bound to that agreement forever unless she comes to a new agreement with Pope,” noting that “Pope’s position ignores everything that has happened since the alleged in utero agreement,” And given the conflict between the parties since Ms. Lunday returned to the United States, the court stated, “ ‘shared parental intent’ that existed at 19 to 20 weeks in utero is not sufficient to override every other undisputed fact in this case, all of which point in one direction: away from Brazil as the place of habitual residence.” Having reviewed the briefs, the record, and the law, it could not conclude that the district court’s findings were clearly erroneous. It affirmed the district court’s determinations that the infants were not habitual residents of Brazil and that Ms. Lunday did not wrongfully retain them in Oklahoma.

  The Court rejected Mr. Pope’s argument that he was denied due process when the district court denied his petition without holding an evidentiary hearing. Neither the Convention nor ICARA, nor any other law including the Due Process Clause of the Fifth Amendment, requires that discovery be allowed or that an evidentiary hearing be conducted as a matter of right in cases arising under the Convention. Rather, a meaningful opportunity to be heard ... is all due process requires in the context of a Hague Convention petition.

 

Farr v Kendrick, --- Fed.Appx. ----, 2020 WL 4877531 (9th Cir.,2020) [Mexico] [Habitual residence] [Petition denied]

In Farr v Kendrick, --- Fed.Appx. ----, 2020 WL 4877531 (9th Cir.,2020) (not selected for publication) Michael Farr filed a pro se petition under the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq., for the return of his twin minor children to Mexico, after his ex-wife and mother of the children, Bonnie Jeanene Kendrick, took them from Mexico to live with her in Arizona. The district court denied Farr’s petition because the children’s country of habitual residence was the United States, not Mexico. The Ninth Circuit affirmed. It observed that the habitual-residence determination ... presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court.” Monasky, 140 S. Ct. at 730. It noted that the district court found that the parents did not have a shared, settled intent to abandon the United States as their habitual residence when they moved to Mexico, pursuant to existing precedent. See Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013) (“In the Ninth Circuit, we look for the last shared, settled intent of the parents in an attempt to determine which country is the ‘locus of the children’s family and social development.’ ” (quoting Mozes v. Mozes, 239 F.3d 1067, 1084 (9th Cir. 2001)). However, after the district court’s decision, the Supreme Court held that “a child’s habitual residence depends on the totality of the circumstances specific to the case.” Monasky, 140 S. Ct. at 723. Thus, “a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ Under the circumstances of this case, it declined to disturb the judgment below. 

The district court’s very thorough findings enabled it to conclude that, under the totality of the circumstances, the children’s habitual residence was the United States. For example, the district court found that Kendrick credibly testified that she viewed the move as temporary and believed the family would remain in Mexico for three to five years.1 The court also relied on Kendrick’s repeated requests, in email exchanges and in conversations secretly recorded by Farr, to return to the United States. The court found “most telling” a January 2017 email exchange, in which Kendrick described Houston, Texas, as their home and permanent residence, and, rather than dispute the characterization, Farr sought to postpone deciding when the move would occur. A December 2016 email by Farr also supports the district court’s finding. In this email, Farr detailed a “plan of action” for their return to the United States, setting forth decisions they needed to make “very soon,” such as which United States city they would move to. The record also contained March 2016 text message exchanges in which Kendrick expressed uncertainty about whether they would stay in Mexico, writing, for example, that it was difficult for the family to settle in Mexico and make friends because “we don’t know month to month if we’ll be here or not.” Other circumstances the court relied on include the following: Farr, Kendrick, and the children are United States citizens; Farr’s sister testified that Farr’s job in Mexico was “indefinite” and “temporary”; Kendrick’s and the children’s temporary visas expired in August 2017; Farr made seven trips to the United States between August 2015 and August 2018; all of Kendrick’s and most of Farr’s extended family members lived in the United States; and Farr maintained an American bank account and American automobile insurance while living in Mexico. In addition, the court noted that the children were less than a year old when they moved to Mexico, only three years old when they returned to the United States, did not speak Spanish, and did not attend school in Mexico. The totality of the circumstances supported the district court’s finding that the children’s habitual residence was the United States, not Mexico. For the reasons articulated in Monasky, it concluded that it was not necessary to remand for the district court to consider the evidence under the new standard announced by Monasky.