Jacquety v Baptista, 2021 WL 3034045 (S.D. New York, 2021)[France] [[Petition denied][Costs]

In Jacquety v Baptista, 2021 WL 3034045 (S.D. New York, 2021) the Court found in favor of Respondents and denied the petition for return. Respondent Tena Baptista (“Respondent”) moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1.

 

          The Court observed that the items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Section 1920 lists six categories of recoverable costs: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. § 1923]; and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].  

 

A court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (court is not authorized “to tax whatever costs may seem appropriate”). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs. When interpreting and applying the costs statute, “the Supreme Court has explained that Section 1920 should be read as limiting taxable costs ‘to relatively minor, incidental expenses,’ such that ‘the assessment of costs most often is merely a clerical matter that can be done by the court clerk.’ ” Endo Pharmaceuticals, 331 F.R.D. at 580 (quoting Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 573, 132 S. Ct. 1997, 2006 (2012)). Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006.

 

Trial Transcripts. Respondent initially sought $47,858.88 for costs of trial transcripts but, after Respondent’s objection, reduced the demand to $42,333.84 by removing costs attributable to “minuscripts” and same-day delivery of transcripts.  Fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent.

 

Printing, Copying, and Exemplification. Respondent initially claimed $44,455.49 for printing and copying, including for preparing exhibit binders provided to witnesses, opposing counsel, and the Court. Of that amount, $36,352.75 was allocated to printing and copying, and $8,102.74 to costs associated with exemplification at trial. Petitioner challenged the extent of printing and copying as excessive. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs are attributed to exemplification as distinct from those that fell under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeds what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. Taking all these considerations into account, the Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.

 

Interpreters. Interpreters were employed for trial because the parties’ native language was French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees were awardable based on this District’s local rules, because the costs sought were those associated with the testimony of Respondent who was a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4). Costs for Respondent’s interpreter were denied.

 

Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, TrialGraphix, which provided technology for and facilitated trial. Petitioner contended that Respondent is not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner was correct. Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting. Costs of conducting the trial remotely were denied.

Recent Hague Convention District Court Cases Mata- Cabello v Thula, 2021 WL 3040959 ( D. Puerto Rico, 2021) [Costs and attorneys fees] [Denied] [Costs stemming from the translation of written documents do not qualify as “compensation of interpreters,” as that term is used in 28 U.S.C. § 1920(6)] [ICARA§ 11607, provides for fees only to a prevailing petitioner; the section does not provide for fees to a prevailing respondent] .

 

Mata- Cabello v Thula, 2021 WL 3040959 ( D. Puerto Rico, 2021)

[Costs and attorneys fees] [Denied] [Costs stemming from the translation of written documents do not qualify as “compensation of interpreters,” as that term is used in 28 U.S.C. § 1920(6)] [ICARA§ 11607, provides for fees only to a prevailing petitioner; the section does not provide for fees to a prevailing respondent] .

Recent Hague Convention District Court Cases - Vieira v DeSouza, 2021 WL 2980729 (D. Mass, 2021) [Brazil] [Habitual Residence] [Petition granted][Grave risk of harm not established]

 

Vieira v DeSouza,  2021 WL 2980729 (D. Mass, 2021)

[Brazil] [Habitual Residence] [Petition granted][Grave risk of harm not established]

Recent Hague Convention District Court Cases - Ho v Ho, 2021 WL 2915161 (N.D. Illinois,2021) [New Zealand][Habitual residence][Rights of Custody][Petition granted] [Grave Risk of Harm not established]

 

Ho v  Ho, 2021 WL 2915161 (N.D. Illinois,2021)  

[New Zealand][Habitual residence][Rights of Custody][Petition granted] [Grave Risk of Harm not established]

Recent Hague Convention District Court Cases - Hart v Anderson, 2021 WL 2826774 ( D. Maryland, 2021) [France] Necessary Expenses] [Denied] [Clearly inappropriate] [Award would impair respondent’s ability to care for child][Unclean hands]

 Hart v Anderson, 2021 WL 2826774 ( D. Maryland, 2021)

[France] Necessary Expenses] [Denied] [Clearly inappropriate] [Award would impair  respondent’s ability to care for  child][Unclean hands]

Recent Hague Convention District Court Cases - Sain v Sain, 2021 WL 2784324 (M.D. Florida, 2021) [United Kingdom] [Habitual residence][Petition denied]

 Sain v Sain, 2021 WL 2784324 (M.D. Florida, 2021)

[United Kingdom] [Habitual residence][Petition denied]

Recent Hague Convention District Court Cases - Berenguela- Alvarado v Castanos, 2020 WL 10055693 ( S.D. Florida, 2020). [Chile][On remand from Court of Appeals for the Eleventh Circuit. vacating District Court Order Denying Petition for Return and remanding for further proceedings to reassess Respondent’s consent defense under the proper legal framework articulated by the Eleventh Circuit] [Petition granted] .

 Berenguela- Alvarado v Castanos, 2020 WL 10055693 ( S.D. Florida, 2020).

[Chile][On remand from Court of Appeals for the Eleventh Circuit. vacating District Court Order Denying Petition for Return and remanding for further proceedings to reassess Respondent’s consent defense under the proper legal framework articulated by the Eleventh Circuit] [Petition granted] .

Recent Hague Convention District Court Cases - Nowlan v Nowlan, 2021 WL 2379815 ( W.D. Virginia, 2021) [Canada] [Habitual residence ] [Petition granted] [Grave risk of harm].

 Nowlan v Nowlan, 2021 WL 2379815 ( W.D. Virginia, 2021)

[Canada] [Habitual residence ] [Petition granted] [Grave risk of harm].

Recent Hague Convention District Court Cases - Kenny v. Davis, 2021 WL 2275983 (D. Alaska, 2021) [Republic of Ireland] [Habitual Residence] [ Petition Denied]

 

Kenny v. Davis, 2021 WL 2275983 (D. Alaska, 2021)

[Republic of Ireland] [Habitual Residence] [ Petition Denied]

 

Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021)[Chile] [Petition denied][Mature Child][Well-Settled][Grave Risk of Harm]

 In Alvarez Romero v Gajardo Bahamonde, --- Fed.Appx. ----, 2021 WL 2104855 ( Eleventh Circuit, 2021) Rodrigo Andres Alvarez Romero appealed the district court’s denial of his petition for return of his minor children to Chile. The Eleventh Circuit affirmed.  

ABB and PDCB were Alvarez Romero and Maria Eugenia Gajardo Bahamonde’s minor daughters. ABB was born in 2006 and PDCB was born in 2013. Alvarez Romero and Gajardo Bahamonde were citizens of Chile and had never been married. Their children were born in Chile. Gajardo Bahamonde, ABB, and Mauricio Loyola (Gajardo Bahamonde’s son from a prior relationship) testified that Alvarez Romero frequently abused Gajardo Bahamonde emotionally and physically, including beating her so severely she had a miscarriage. Because ABB and PDCB witnessed the abuse, the Chilean Family Court ordered them to undergo mental health treatment. In the treatment program, both children were diagnosed with “mild psycho-affective damage” due to the abuse they saw their father inflict on their mother. This abuse included an incident when Alvarez Romero broke her nose and another when he knocked her unconscious while the children were lying beside her in bed. Loyola testified that Alvarez Romero was often verbally and physically abusive to Gajardo Bahamonde in front of the children. He said that Alvarez Romero would hit his mother, call her “a whore,” and say she was worth less than him because “he was an engineer and she was nothing.” Loyola witnessed one occasion when Alvarez Romero beat Gajardo Bahamonde so severely that he broke her ribs. Loyola recounted at least one incident where ABB witnessed Alvarez Romero severely beat their mother. And both daughters often heard their father verbally abuse their mother. Alvarez Romero would beat Loyola as well, including by hitting him with a belt. ABB witnessed several other incidents, including one when Alvarez Romero almost ran into ABB while trying to hit her mother. ABB also described Alvarez Romero’s disturbing behavior toward ABB and PDCB. For example, he forced ABB to stay up for hours past her bedtime as punishment for doing poorly on a school assignment; he locked PDCB in the car while shopping when she wouldn’t stop crying that she wanted her mother; and he took the children with him to buy drugs (which he used in their presence) and drove with the children while under the influence.  Alvarez Romero denied all allegations of abuse. The district court found Alvarez Romero’s claims that he never abused the mother of his children and that she falsified the allegations of abuse not to be credible.

 

Following the separation, Gajardo Bahamonde lived with the children in abject poverty. In December 2017, Alvarez Romero told Gajardo Bahamonde he wanted to take the children to visit his mother in the United States, during which time they would also have the opportunity to visit Disney World. Gajardo Bahamonde consented to the trip, based on her belief that the children would be under the care of their grandmother. She signed a travel authorization form allowing the children to travel to the United States from December 2017 to March 2018.  

Gajardo Bahamonde testified that in January 2018, Alvarez Romero told her he would not be returning the children to Chile and that if she ever wanted to see them again, she would have to come join them in the United States. Alvarez Romero denied ever saying this. But that month, he got a full-time job in the United States, bought a car, and enrolled ABB in school and PDCB in daycare. After she learned that Alvarez Romero enrolled the daughters in school and daycare in the United States, Gajardo Bahamonde left her job in Chile and sold possessions in order to pay for a ticket to travel to Alvarez Romero’s mother’s home in Florida in February 2018 to be with the children. Two months later, Gajardo Bahamonde moved out and took PDCB with her because, she said, Alvarez Romero began sexually harassing her and verbally and physically abusing her in front of the children. ABB testified that she saw Alvarez Romero abuse Gajardo Bahamonde while she was living with them in Florida. Gajardo Bahamonde also described an incident when Alvarez Romero pushed her while she was at work, prompting a co-worker to call the police. Gajardo Bahamonde’s testimony about that incident is supported by a police report. Gajardo Bahamonde filed for a domestic violence protection order in Florida after that incident.  Initially, ABB stayed with her grandmother and father. But after her grandmother went back to Chile, ABB’s living situation worsened. ABB testified that she started missing a lot of school, there was almost no furniture in the home they stayed in, she was alone in the home for most of the day, and was left without food or a phone. Her mother came and took ABB to live with her after ABB called upset that she was stuck alone in the house with no food while Alvarez Romero was at work. The Florida court scheduled two hearings about Gajardo Bahamonde’s petition for a protective order. Alvarez Romero did not appear and instead returned to Chile. After Alvarez Romero failed to appear at the first hearing and returned to Chile, Gajardo Bahamonde moved to Georgia. The petition was dismissed for failure to appear. Gajardo Bahamonde did not further pursue the protective order after Alvarez Romero left the United States because she knew he could not return. When Alvarez Romero returned to Chile, he took the children’s passports with him. Initially, he remained in contact with ABB. They spoke about planning a trip for the children to return to Chile. Gajardo Bahamonde repeatedly asked Alvarez Romero to return the passports but he never did. Gajardo Bahamonde and the children moved to Georgia in November 2018. Since then, the children had lived in one home and attended the appropriate schools. In June 2020, Alvarez Romero filed an ICARA petition, claiming that, as of November 2018, Gajardo Bahamonde wrongfully retained the couple’s two minor children, ABB and PDCB, in the United States, at the time 14 and 7 years old, respectively.

 *4 Because Gajardo Bahamonde sought to rely on the mature child exception as to ABB, the district court interviewed ABB in chambers. The district court first spoke to ABB alone and provided a summary to the parties. Next, the district court asked ABB questions the parties submitted in advance. The parties could not directly cross-examine ABB, but they listened to the district court interview her over the phone and were permitted to submit follow-up questions. Neither party submitted any follow-up questions.

 During that hearing, ABB objected to returning to Chile. At the time of the hearing, ABB was 14 years old. She was doing well at school and the record does not indicate that she had any kind of difficulties adjusting to life in the United States. She stated that she wanted to stay in the United States because her life in Chile was unstable. In Chile, she lived in poverty, frequently moved, and was constantly in fear that Alvarez Romero would find them and hurt her mother. Without prompting, ABB described a number of instances where she saw her father beat her mother, including some incidents her mother did not know ABB witnessed. For example, she described an incident when her father threw boiling water on her mother while she was cooking, at which point ABB called the police. ABB, her mother, her sister, and her half-brother then had to live in a hotel to stay safe from her father. She recalled watching her father purchase and consume drugs in her presence. She also recalled several interactions with the police in Chile when they responded to Alvarez Romero’s violent outbursts. ABB also testified that she witnessed her father hit her half-brother, giving him a black eye.

 The Eleventh Circuit rejected Alvarez Romero argument that ABB could only testify about her objections to returning to Chile because “the Hague Convention does not authorize the Court to interview a child or any other witness in chambers, without the opportunity for cross-examination, on substantive issues in the case.” Instead, he said  a court may only interview a child to determine whether the mature child exception applies. The court held that contrary to Alvarez Romero’s contentions, courts regularly rely on the child’s testimony in Hague Convention cases for issues besides the mature child exception

 The Eleventh Circuit rejected the argument that the district court improperly applied the mature child exception to ABB. Courts have relied primarily on three considerations in determining when this exception applies: (1) whether the child is sufficiently mature; (2) whether the child has a particularized objection to being repatriated; and (3) whether the objection is the product of undue influence. See Colon v. Mejia Montufar, 470 F. Supp. 3d 1280, 1295 (S.D. Fla. 2020) (citing Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007)).  As to the first factor, courts have looked to the child’s age, ability to express mixed feelings, and to plan past obstacles as indications of maturity. Alvarez Romero said the district court relied solely on ABB’s age in finding that she was sufficiently mature, but that assertion wass not supported by the record. The district court considered ABB’s age (she was fourteen years old at the time), the fact that she was able to express some positive feelings about life in Chile, her ability to provide detailed answers demonstrating an understanding of her situation, and the testimony of her teacher in finding that she was sufficiently mature. In determining whether a child has particular objections to repatriation, courts consider whether the child is expressing merely a preference against return or is “affirmatively objecting to returning to one country—when living in that country would be unacceptable.” Rodriguez v. Yanez, 817 F.3d 466, 477 (5th Cir. 2016). Alvarez Romero claimed that ABB expressed a mere preference to stay in the United States, but he did not support this claim with references to the record. An actual review of the record showed that ABB provided lengthy and detailed particularized objections to being repatriated to Chile based on her father’s constant verbal and physical abuse of her mother. Alvarez Romero also insisted that ABB’s testimony could only be the product of Gajardo Bahamonde’s undue influence. When considering whether a child’s objection is the product of undue influence, courts place great weight on whether the objection is based on the child’s firsthand experiences. Colon, 470 F. Supp. 3d at 1298 (collecting cases). Unquestionably, ABB’s objections were based on her firsthand experiences. She described witnessing numerous incidents of Alvarez Romero physically and verbally abusing her mother, going hungry and homeless when Alvarez Romero cut off her mother financially, observing Alvarez Romero take drugs, and being subject to his harsh discipline. The district court did not err in applying the mature child exception to ABB.

When a Hague Convention petition is filed more than a year after a child is retained, the retaining parent can assert the well-settled defense. Hague Convention Art. 12 (noting that the child must still be returned if the petition is filed after one year “unless it is demonstrated that the child is now settled in its new environment.”) The retaining parent must establish that the child is well-settled by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). Alvarez Romero filed the  petition more than one year after Gajardo Bahamonde and the children remained in the United States. But Alvarez Romero complained that the district court should not have considered the well-settled defense because he says Gajardo Bahamonde concealed the children’s location from him. Alvarez Romero’s argument failed on both the facts and the law. As a factual matter, the district court determined that Gajardo Bahamonde did not conceal the children’s whereabouts from Alvarez Romero.  And even if the record indicated that Gajardo Bahamonde had concealed the location of her children, that alone would not prevent her from asserting the well-settled defense. As the Supreme Court held in Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S. Ct. 1224 (2014), concealment does not equitably toll the one-year deadline for a parent to file a petition and preclude the retaining parent from asserting the well-settled defense. Id. at 4, 134 S. Ct. at 1228. Therefore, the district court properly considered the well-settled defense here.

The Eleventh Circuit rejected the argument that the district court’s factual findings did not support its ruling that the children were well-settled in the United States. In this circuit, a child is well settled for purposes of the Hague Convention “when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment.” Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018). The district court’s application of the well-settled defense is reviewed for abuse of discretion. Courts look to how frequently children move around within their new country, whether they attend extracurricular and community activities, and whether they regularly attend school when determining whether they are well-settled. Lozano, 572 U.S. at 17, 134 S. Ct. at 1236 (collecting cases). The children had been living in the United States since December 2017, when Alvarez Romero brought them here. They had been enrolled in school in the United States since January 2018, when he first enrolled them. They changed school districts only once—when they moved to Georgia in November 2018. Both children were doing well in school. Before the onset of the Covid-19 pandemic, both children were involved in numerous extracurricular activities, including music lessons, skating, swimming, and soccer. They had close friendships at school and in their neighborhood. The children get along with each other. They were also close with their half-brother, who visited from Alabama every few weeks. Gajardo Bahamonde and the children’s visas were expired. An immigration attorney, who presented expert testimony as to immigration law matters, advised that Gajardo Bahamonde was not under any threat of removal and that she had three options for regularizing her status.

 The Court found that record clearly established that ABB and PDCB would face a grave risk of harm if returned to Chile. For years, Alvarez Romero physically and verbally abused Gajardo Bahamonde, including beating her so severely that she miscarried and breaking her ribs and nose. The children witnessed numerous incidents of abuse, to the extent that they underwent court-mandated mental health treatment. And when Gajardo Bahamonde was finally able to leave this abusive relationship, Alvarez Romero left her and their children homeless and hungry. Alvarez Romero abused drugs while caring for his children, including in their presence. Alvarez Romero challenged the district court’s factual findings. He argues that the district court should have credited his and his mother’s testimony denying abuse instead of crediting Gajardo Bahamonde, ABB, and Loyola’s testimony describing his abuse and other disturbing behavior. But Alvarez Romero again fails to show that the district court’s credibility determinations were clearly erroneous. The Court saw no basis for displacing the district court’s findings that the testimony that Alvarez Romero abused Gajardo Bahamonde for years was credible and his denials were not credible.

 

Jacquety v Baptista, 2021 WL 1885263 (S.D. N.Y., 2021)[Morocco][Grave Risk of Harm][Ameliorative measures][Petition denied]

 

In Jacquety v Baptista, 2021 WL 1885263 (S.D. N.Y., 2021) the district court denied the Petition of Guillaume Jacquety against Respondent Geraldine Helena Tena Baptista (“Geraldine”) seeking return of their daughter E.J. to Guillaume’s custody in Morocco. 

 The parties were  formerly husband and wife under French law. They had a young daughter, referred to as “E.J.” In early November 2018, Geraldine traveled with E.J. from the family’s home in Morocco to Geraldine’s mother’s home in Switzerland and then a few days later to Portugal, where they were joined by Respondent Dr. Yousseff Zaim Wadghiri (“Wadghiri”). From there, Geraldine, E.J., and Wadghiri traveled to New York City, where they have since lived in Wadghiri’s home.

The trial of this matter took place by remote means over twelve days between January 25, 2021 and February 9, 2021. The parties stipulated to Petitioner’s prima facie case. The issues for trial were whether E.J. faced a grave risk of physical or psychological harm if she were repatriated to Morocco and, if so, whether arrangements could be implemented in Morocco that would adequately protect E.J. from that grave risk of harm. 

The district court observed that “The grave-risk exception is found in Article 13 of the Hague Convention, which states that: the judicial ... authority of the requested State is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Convention, art. 13(b). The Second Circuit has explained the high bar required to meet the exception: [A] grave risk of harm from repatriation arises ... in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. The potential harm to the child must be severe, and the ... level of risk and danger required to trigger this exception has consistently been held to be very high. The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize. Souratgar, 720 F.3d at 103 (internal quotation marks, citations, and emphasis omitted); see also Norden-Powers v. Beveridge, 125 F. Supp.2d 634, 640 (E.D.N.Y. 2000) (collecting cases). The exception is to be interpreted narrowly, “lest it swallow the rule.” Souratgar, 720 F.3d at 103; see also 22 U.S.C. § 9001(a)(4) (referring to the Convention’s “narrow exceptions”). 

The grave-risk inquiry is “not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.” Souratgar, 720 F.3d at 104. “Sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Id. (collecting cases). In contrast, “[t]he exception to repatriation has been found where the petitioner showed a sustained pattern of physical abuse and / or a propensity for violent abuse that presented an intolerably grave risk to the child.”. As the Second Circuit has explained: [A]t one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.  Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001) (“Blondin IV”)

 

“Evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse,” though “[e]vidence of this kind ... is not dispositive in these fact-intensive cases.” Souratgar, 720 F.3d at 104 (internal quotation marks, brackets, and citations omitted); see also Davies v. Davies, 717 F. App’x 43, 49 (2d Cir. 2017) (summary order) (finding no error in district court’s grave risk finding “premised on overwhelming evidence of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by [the child]”); Ermini, 758 F.3d at 164 (“Spousal violence ... can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child”); Mohácsi v. Rippa, 346 F. Supp.3d 295, 320, 322 (E.D.N.Y. 2018) (“witnessing the abuse of [one’s] mother is enough to establish the applicability of the defense”), aff’d sub. nom. In re NIR, 797 F. App’x 23 (2d Cir. 2019) (summary order affirming denial of petition).

 

Even if the requirements of the grave risk of harm exception are met, principles of comity require the court to “determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance.” Saada v. Golan, 930 F.3d 533, 541-42 (2d Cir. 2019). The Court may consider, among other things, “whether [the other country’s] courts will enforce key conditions” to protect the child. Id. at 541.

 

The Convention’s grave-risk exception is an affirmative defense that the respondent must prove “by clear and convincing evidence,” although “subsidiary facts need only be proven by a preponderance of the evidence.” Elyashiv v. Elyashiv, 353 F. Supp.2d 394, 404 & n.10 (E.D.N.Y. 2005); see 22 U.S.C. § 9003(e)(2)(A).

 The court found that Respondent has proven by clear and convincing evidence that E.J. faces a grave risk of harm if she is repatriated to Morocco. Petitioners expert, Dr. Goslin determined that there was “clear and compelling evidence” that E.J. suffers from PTSD resulting from domestic violence by Guillaume toward Geraldine, and that E.J. was at serious risk of an increase in her PTSD symptoms and negative impact on her development if she were to return to Morocco. Dr. Goslin predicted “with a great deal of certainty” that if returned to Morocco, E.J.’s PTSD symptoms would increase and her developmental functioning would regress. In short, E.J. would not be able to recover from her PTSD if returned to Morocco.  

E.J.’s plight had been made even more precarious as a result of the recent Moroccan Judgment awarding physical and residential custody of E.J. to Guillaume based on a one-sided record. Dr. Goslin testified that if left in an unsupervised setting with her father, E.J.’s PTSD symptoms would intensify and she therefore would neither feel safe nor be safe. Making matters worse, the Moroccan Judgment imposed extreme restrictions on Geraldine’s visitation rights, limiting her to only day time visits on the weekends. As a result, E.J. would be deprived of her primary caregiver, further exacerbating her PTSD.

 

Dr. Goslin was the only expert who evaluated E.J. Petitioner provided no expert testimony. Courts have denied petitions under the Convention in such circumstances. For instance, in Blondin IV, the Second Circuit affirmed the denial of a petition to return two children to France. The district court found that petitioner had beaten his wife, the respondent, often in the child’s presence and that he had also beaten one of the children. The district court also accepted the expert testimony of an expert child psychiatrist, Dr. Solnit. Like Dr. Goslin here, Dr. Solnit opined that the children were recovering from PTSD and that “if the children were returned to France with or without their mother and even if they could avoid being in the same domicile as the father ... they would almost certainly suffer a recurrence of their [PTSD] that would impair their physical, emotional, intellectual and social development.” 238 F.3d at 160. The petitioner in Blondin IV did not provide any contrary expert testimony to rebut Dr. Solnit’s opinions. 

Sixteen years later, the Second Circuit in Davies reached a similar conclusion in affirming the district court’s denial of a petition to return a child to French St. Martin. Davies v. Davies, No. 16-CV-6542, 2017 WL 361556, at *17 (S.D.N.Y. Jan. 25, 2017).See also Elyashiv, 353 F. Supp.2d at 408-09 (denying repatriation where there was uncontroverted expert testimony that the children would suffer relapse of their PTSD symptoms upon returning to Israel, even if they had no contact with petitioner); Reyes Olguin v. Cruz Santana, No. 03-CV-6299, 2005 WL 67094, at *2-4, 7, 11-12 (E.D.N.Y. Jan. 13, 2005) (denying repatriation where there was uncontroverted expert testimony that return to Mexico would exacerbate child’s PTSD).

 The Court found by clear and convincing evidence, based on Dr. Goslin’s opinion (Respondents’ expert child psychologist), Dr. Cling’s opinion (he was retained by Respondents to evaluate Geraldine)  regarding Geraldine, and the parties’ testimony to the extent deemed credible, that E.J. experienced PTSD due to domestic violence, that returning her to Morocco would exacerbate her PTSD, and that she faced grave risk of harm if returned to Morocco. Those findings were supported by E.J. herself in what she reported to Dr. Goslin, including that her dad “smacked” her mother many times, used bad language, yelled, was verbally abusive, and broke things in the home; that incidents of that nature happened a lot; that “[her father] kept smacking [her mother]” even though “she never does something”; that E.J. felt “bad” and worried for her mother’s safety, “because she’s my mom and no one can touch her like that”; that she “didn’t trust [her] dad at all”; and that she “was afraid [her dad] would smack [her] mom again.” And although E.J. has tried to stop thinking of the violence, “like 100 times,” “it didn’t work” and she “tr[ies] to forget all day long but it always comes back.” In short, E.J. was exposed to sustained and serious violence that continues to haunt her.

 The Court observed that even where there is a grave risk of harm from repatriation, the Court must consider whether there are “any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with [the] child’s repatriation.” Blondin II, 189 F.3d at 248. The Court  considered means of mitigating E.J.’s grave risk of harm upon repatriation and found that there are no ameliorative measures sufficient to prevent exacerbation of E.J.’s PTSD. 

 Petitioner offered expert testimony that Morocco has laws to protect persons who are abused. Respondent has offered expert testimony explaining that despite having laws on the books, domestic violence remains prevalent and women remain unprotected. The Court noted that the extent to which those propositions are true need not be resolved. As the Second Circuit has recognized, even when a country’s authorities “are both willing and able to make numerous arrangements and accommodations to facilitate repatriation,” there may be circumstances where they still “cannot provide the necessary protection.” Blondin IV, 238 F.3d at 162. This case presented such circumstances because to provide the necessary protection, Moroccan authorities “would [be] require[d] ... to fulfill the impossible task of ensuring that a return to [Morocco] would not trigger a recurrence of traumatic stress disorder in the children.” In Blondin II, the Second Circuit remanded the district court’s initial decision finding a grave risk of harm specifically for the purpose of evaluating potential ameliorative measures. On remand, the district court found that there were no arrangements at all that would mitigate the grave risk of harm posed to the children, “because returning to France under any circumstances would cause them psychological harm, as France was the scene of their trauma. The court based this determination on uncontested expert testimony that the children would suffer from post-traumatic stress disorder upon repatriation.” Blondin IV, 238 F.3d at 157; see also Souratgar, 720 F.3d at 104 (explaining that “[t]he holding in Blondin IV depended on the fact that due to the nature of the potential harm at issue – recurrence of PTSD that would occur as soon as the children entered France – there was nothing the courts could do to prevent it”). The situation here was the same.  The recent Moroccan Judgment only underscored the point. 

In his post-trial reply brief, Petitioner requested for the first time that he be given the opportunity to propose undertakings he would take in the event the Court were otherwise to deny the Petition. The court held that his  belated request was too little too late. And the Court found that there were no undertakings that Petitioner could offer to sufficiently address the problem. Undertakings are of limited efficacy in that the court imposing the conditions “retain[s] no power to enforce those orders across national borders.” Baran, 526 F.3d at 1350. “Because the court granting or denying a petition for return lacks jurisdiction to enforce any undertakings it may order, even the most carefully crafted conditions of return may prove ineffective in protecting a child from [grave] risk of harm.”  Accordingly, “in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other sufficient guarantees of performance.” Saada, 930 F.3d at 540; see also Davies, 2017 WL 361556 at *20 (concluding that petitioner could not be trusted to honor agreements or commitments he might make).

 

The Court did not believe that Petitioner could be relied on to make the requisite effort to abide whatever undertakings he may propose. Nor were there potential undertakings that would sufficiently ameliorate the grave risk of psychological harm to E.J. for the same reason that there were no potential Moroccan legal remedies or services that would do so: returning to Morocco would trigger E.J.’s PTSD. The Court found that there were no undertakings or other ameliorative measures that could sufficiently protect against the grave risk of harm E.J. would face upon return to Morocco.

Lukic v Elezovic, 2021 WL 1904258 ( E.D. New York, 2021) [Montenegro] [Necessary expenses] [Denied] [Clearly inappropriate]

 Lukic v Elezovic, 2021 WL 1904258 ( E.D. New York, 2021)  

In Lukic v Elezovic, 2021 WL 1904258 ( E.D. New York, 2021)  petitioner, Tomislav Lukic, moved for costs pursuant to 22 U.S.C. § 9007(b)(3) relating to the return of his child, N.L., to Montenegro. Respondent, Bahrija Elezovic, opposed, arguing that equitable factors favored denying a costs award. The district court denied the motion.

 The Court observed that 22 U.S.C. § 9007(b)(3)  provides that “Any court ordering the return of a child pursuant to an action brought under [the Hague Convention] 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.”.  “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 ...; (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 ....” Nissim v. Kirsh, No. 18-CV-11520 (ALC), 2020 WL 3496988, at *2 (S.D.N.Y. June 29, 2020) 

 Petitioner sought  €1,132.39 for “his airline travel to the United States and his airline travel back to Montenegro with” N.L. The court found that  equitable factors favored denying even this partial cost award. Respondent had shown she had no income or assets and relied on her family in New York to provide basic needs. Even though petitioner’s requested award was relatively modest, it far exceeded anything respondent wass able to pay. The Second Circuit has noted that “an expenses award that is greater than a respondent’s total assets ... at a minimum[ ] require[s] a reasoned explanation.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 n.3 (2d Cir. 2016).  

The Court found that while respondent had petitioner’s permission to bring N.L. to the United States, respondent did not have a reasonable basis to retain N.L. beyond the bounds of a tourist visa. Neither party appeared to have engaged in forum shopping. The Montenegrin Family Court had awarded respondent physical custody of N.L. in 2015. While petitioner had moved the Montenegrin Family Court to amend this judgment in December 2018 and those proceedings were ongoing when respondent brought N.L. to the United States, respondent had an advantage in that forum as the existing custodial parent. There was no evidence that she moved abroad to avoid an amended custody judgment, and she ultimately prevailed in that dispute. Petitioner did  not bear responsibility for the circumstances giving rise to his airline travel. Respondent did contribute to delay in effectuating N.L.’s return, but that delay only incurred a €30 airline change fee. Ordering costs here would have some deterrent value, but this is not a quintessential Hague Convention case in which the respondent “attempt[ed] to find a friendlier forum for deciding custodial disputes.” The Montenegrin family court awarded respondent physical custody, and N.L.’s unlawful retention interfered with petitioner’s statutory ne exeat rights, not any court judgment. Although petitioner’s entitlement to N.L.’s return was clear, this case did not implicate the heartland of the Hague Convention’s purpose “to remedy abuses by noncustodial parents who attempt to circumvent adverse custody decrees.”  On balance, while equitable factors were mixed, respondent’s lack of assets outweighed any considerations favoring a costs award. Petitioner received sophisticated pro bono representation that led to N.L.’s return to Montenegro and only incurred travel costs to effectuate his legal win. Respondent’s current separation from her child wass more than just punishment for her unlawful actions. Taxing her negligible assets 

Recent District Court Hague Convention Cases - Rishmawy v Brooks, 2021 WL 1760303 (S.D. Georgia, 2021) [Honduras] [Habitual Residence] [Rights of Custody] [Grave risk of harm] [Petition granted]

 

Rishmawy v Brooks, 2021 WL 1760303 (S.D. Georgia, 2021) 

[Honduras] [Habitual Residence] [Rights of Custody] [Grave risk of harm] [Petition granted]

Recent Hague Convention District Court Cases - Wan v Debolt, 2021 WL 1733500 ( C.D. Illinois, 2021). [Hong Kong] [Federal & State judicial remedies] [National Security Law for Hong Kong] [Grave risk of harm] [Petition granted]

 

Wan v Debolt, 2021 WL 1733500 ( C.D. Illinois, 2021).

[Hong Kong] [Federal & State judicial remedies] [National Security Law for Hong Kong] [Grave risk of harm] [Petition granted]

 

Recent Hague Convention District Court Cases - Chambers v Russell, 2021 WL 1581074 (M.D. N. C. 2021) [Jamaica] [Necessary Costs and Expenses] [Defense of financial hardship] [Defense of Good faith belief actions were justified] [Granted in part: $20,917.42 in legal expenses, and $38.54 in non-legal expenses.]

 

Chambers v Russell, 2021 WL 1581074 (M.D. N. C. 2021)

[Jamaica] [Necessary Costs and Expenses] [Defense of financial hardship] [Defense of Good faith belief actions were justified] [Granted in part: $20,917.42 in legal expenses, and $38.54 in non-legal expenses.]

Bordelais v Bordelais, --- Fed.Appx. ----, 2021 WL 1554729 (Mem) (7th Cir., 2021)[Switzerland] [Federal & State Judicial Remedies] [Appeal moot] [Sanctions]

In Bordelais v Bordelais, --- Fed.Appx. ----, 2021 WL 1554729 (Mem) (7th Cir., 2021) Antoine Bordelais, a French citizen, sought the return of his child under the Hague Convention. Since his ex-wife, Valerie, an American citizen, took their child from Switzerland to Illinois in 2016, Antoine has sued her at least seven times for the child’s return. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020). 

In 2016, in the midst of divorce and custody proceedings in Swiss court, Valerie took the couple’s then-13-year-old child to visit her parents in Illinois. They did not return. Antoine petitioned in Illinois state court for divorce and for return of the child under the Hague Convention. Valerie counterclaimed, alleging that she had sole custody of the child and that removal would place the child in grave danger. In 2017, dissatisfied with the pace of the state court proceedings, Antoine filed a similar version of his state court petition in federal court. Valerie moved to dismiss the petition or stay the proceedings under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813–14 (1976), on grounds that Antoine’s suit duplicated his ongoing state court litigation. The district court agreed that the state and federal actions were parallel and stayed the suit. Antoine, arguing that he had withdrawn his state-court petition and that the case was closed, moved to lift the stay in 2018. Valerie disagreed with his characterization about the status of the state-court proceedings and insisted that disputes over their daughter were still being adjudicated. The court denied Antoine’s motion. In 2019, Antoine requested emergency “protective measures” under Article 7 of the Hague Convention to prevent what he believed was a real possibility that Valerie would take the child to Mexico, where she had relatives. The district court denied this request as inconsistent with its stay order. In November 2019, the child turned 16, and Valerie moved to dismiss the suit on grounds that the Hague Convention does not apply to children over 16. The district court held a hearing the following month and granted Valerie’s motion. The court added that it also denied Antoine’s oral motion to amend his complaint, as well as his motion to proceed on appeal in forma pauperis. Antoine then filed a notice of appeal.

 Valerie moved to dismiss the appeal for lack of jurisdiction. She argued that the Hague Convention no longer supplied the basis for federal jurisdiction because their daughter, upon reaching the age of 16, had aged out of the Convention, and the case was now moot. Antoine responded that the Convention continued to apply in Illinois until a child turns 18. 

The Seventh Circuit affirmed. It observed that the child turned 16 in 2019. The Convention, by its terms, “shall cease to apply when the child attains the age of 16 years.” See Hague Convention, art. 4. As the State Department has opined, “[e]ven if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen.” U.S. Dep’t of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986), quoted in Custodio v. Samillan, 842 F.3d 1084, 1088 (8th Cir. 2016) (dismissing as moot the appeal of denial of Hague Convention petition where child turned sixteen during pendency of proceedings).

 Valerie sought sanctions against Antoine under Federal Rule of Appellate Procedure 38, arguing that the appeal was frivolous and meant only to harass and intimidate her. She urged the Court to view the appeal in the context of the fifteen suits since 2016 that Antoine filed against her, her family, her employer, her lawyers, and her child’s therapist. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020) (Executive Committee order enjoining Antoine from filing any new civil action in district without first obtaining leave to file). The Seventh Circuit found that sanctions were warranted. Antoine subjected Valerie’s counsel to extra work to defend against his meritless arguments. Allen-Noll v. Madison Area Tech. College, 969 F.3d 343, 351 (7th Cir. 2020). He also wasted this and other courts’ time, not just with this appeal; he had filed five other appeals from his suits against Valerie and her family. And, the Executive Committee of the Northern District had run out of patience with his pattern of frivolous and duplicative filings. Accordingly, he was ordered to show cause within fourteen days why reasonable attorney’s fees and costs should not be imposed. The Court also warned Antoine that further frivolous appeals will subject him to monetary fines and a possible bar order pursuant to Support Systems International, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).

Recent Hague Convention District Court Cases - Dawson v Dylla, 2021 WL 1534608 (D. Colorado, 2021) [United Kingdom] [Federal & State Judicial Remedies] [Court lacks jurisdiction to adjudicate merits of the underlying custody dispute][ Petition to enforce a foreign parenting order denied.]

 Dawson v Dylla, 2021 WL 1534608 (D. Colorado, 2021)

[United Kingdom] [Federal & State Judicial Remedies] [Court lacks jurisdiction to adjudicate  merits of the underlying custody dispute][ Petition to enforce a foreign parenting order denied.] 

Recent Hague Convention District Court Cases (List)

Luis Alfonso VH v Banessa Cristina AZ, 2021 WL 76971 (W.D. Virginia, 2021).

[Honduras] [Well-settled] [Petition denied]

Alverez Romero v Gajardo Bahamonde, 2020 WL 8459278 (M.D. Georgia, 2021)

[Chile] [Well-Settled] [Wishes of the child [Petition   denied] 

Dubikovskyy v. Goun, 2021 WL 456634 (W.D. Missouri, 2021) 

[Switzerland] [Wishes of the Child] [Petition denied]

Forcelli, v. Smith,.2021 WL 638040 (D. Minnesota, 2021)

[Germany] Necessary Expenses] [not clearly inappropriate] [Reasonable attorneys fees and transportation costs awarded]

Sanchez Mena v Gomez Paz, 2021 WL 633586 (D. Utah, 2021.) 

[Peru] [Federal & State Judicial Remedies] [Respondent’s motion for enlargement of time to file motion to dismiss moot. Respondent’s motion for consolidation of defenses denied. Respondent’s motion to amend the scheduling order is granted in part and denied in part.]

Colchester v Lazaro, 2021 WL 764136, (W.D. Washington, 2021)

[Spain] [Habitual Residence] [Petition granted] [Necessary expenses against Ms. Lazaro is not “clearly inappropriate]

Jose De Jesus Joya Rubio v Yelaine Memendez Alvarez, 2021 WL 956197 (S.D. Florida, 2021) 

[Mexico] [Well-Settled] [Wishes of the child] [Petition denied]

Radu v Shon, 2021 WL 1056393 (D. Arizona, 2021).

[Germany] [Necessary Expenses] [Clearly inappropriate] [Motion denied] 

Sanchez v Sanchez, 2021 WL 1227133 (M.D. North Carolina, 2021)

[Honduras] [Grave risk of harm] [Petition denied].

Saada v Golan, 2021 WL 1176372 (E.D. N. Y.) [Italy] [Federal & State Judicial Remedies] [Stay pending application for certiorari]

In Saada v Golan, 2021 WL 1176372 (E.D. N. Y.)  the district court denied the respondent’s motion to set aside the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or in the alternative, to stay the action pending her petition for writ of certiorari to the United States Supreme Court.

The petitioner, an Italian citizen, alleged that in August of 2018, the respondent, an American citizen, wrongfully kept their minor son, B.A.S., in the United States.  After a bench trial, in a March 22, 2019 decision, the district court found that B.A.S. was a habitual resident of Italy, and that while he would be subject to grave risk of harm upon repatriation, there were sufficient measures available in Italy that would ameliorate the risk to B.A.S. upon his return.  

The Second Circuit affirmed the decision in part and vacated it in part. Saada v. Golan, 930 F.3d 533, 537 (2d Cir. 2009) (Saada I). The Court agreed that Italy was B.A.S.’s “habitual residence” under the Hague Convention, but determined that certain ameliorative measures could not be enforced before B.A.S. was repatriated to Italy. The Second Circuit remanded the case with instructions to ensure that the measures necessary for B.A.S.’s safe repatriation could be “enforce[d] by the District Court or supported by other sufficient guarantees of performance.”  On May 5, 2020, after additional briefing and an extensive examination of the ameliorative measures available in Italy, the district court found that “the Italian courts are willing and able to resolve the parties’ multiple disputes, address the family’s history and ensure B.A.S.’s safety and well-being.” In December of 2019, the Italian court issued an order to help facilitate B.A.S.’s repatriation that included a protective order against the petitioner and an order requiring Italian social services to oversee his parenting classes and behavioral and psychoeducational therapy. Moreover, the petitioner agreed to give the respondent a sum of money to allow her to live independently of the petitioner and his family upon her return. The district court granted the petition and ordered that B.A.S. be returned to Italy. On January 21, 2021, the Court of Appeals affirmed that decision in its entirety. Saada v. Golan, 833 F. App’x 829, 831 (2d Cir. 2020) (Saada II).

 

On January 25, 2021, shortly after the Court of Appeals issued its mandate in Saada II, the respondent filed the motion seeking to vacate the May 5, 2020 order pursuant to Rule 60(b)(2), based on “newly discovered evidence.” Describing the Courts remarks at an October 16, 2018 proceeding as a “court order,” the respondent stated that the petitioner “hired an investigator who surveilled B.A.S. and the respondent and took pictures of them in their apartment,” in “blatant violation” of an October 16, 2018 court order directing the petitioner not to try to locate the respondent during the 2018 trial. According to the respondent, the surveillance showed that the petitioner will not comply with its orders, which in turn demonstrated that he would not follow the Italian court’s protective orders. In short, the respondent argued that this “new” evidence established that B.A.S. will face a “grave risk of harm” that cannot be ameliorated, and therefore, the petition should be denied. To support her allegation of secret surveillance, the respondent submitted the transcript of a November 2020 conversation between the petitioner, his father, and a rabbi who was working with the respondent to help her secure a get. Unbeknownst to the petitioner, the respondent was listening in, and the call was being secretly recorded. 

The Court observed that Rule 60(b) outlines the grounds for relief from a final judgment, order or proceeding, including “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P. 60(b)(2). A Rule 60(b)(2) motion must be made “no more than a year after the entry of the judgment or order or the date of the proceeding,” Fed. R. Civ. P. 60(c)(1), and may not be used “simply to relitigate matters settled by the original judgment.” The decision to grant a motion for relief under Rule 60(b) is left to the discretion of the court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). The district court found there was no evidence that the petitioner or his attorneys tried to find out where the respondent lived, certainly not during the trial or anytime thereafter. Knowledge of the limited investigation that did take place would not have changed the outcome of my May 5, 2020 order, because it did not establish that the petitioner violated an order of the Court or that the protections put in place in Italy would be insufficient to protect B.A.S. from a grave risk of harm. The evidence was not sufficient grounds to reverse the judgment; therefore, the respondent’s motion to set aside the judgment was denied.

 

The Court pointed out that in deciding whether to stay a return order in a Hague Convention case, courts must balance the “importance of the prompt return of children wrongfully removed or retained” with the concern that “shuttling children back and forth between parents and across international borders may be detrimental to those children.” Chafin v. Chafin, 568 U.S. 165, 178 (2013). “Staying the return of a child in an action under the Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996). Courts considering whether to stay a return order must apply the four traditional stay factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin, 568 U.S. at 179 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). A decision to stay the return should include an “appropriate consideration of the child’s best interests.” 

 

The district court found that given the small percentage of cases that the Supreme Court accepts each term, it was not likely that the respondent’s petition for certiorari would be successful. This case did present an interesting legal question, which appeared to be a matter of first impression before the Court. Overall, this factor did not weigh strongly for or against a stay. The court was not persuaded that the respondent would be irreparably injured absent a stay. The Italian court has put many protections in place to ensure the respondent’s safety in Italy, and she will have money to provide for herself and B.A.S. when they return. B.A.S.’s return would not moot the respondent’s claims or prevent her from continuing to litigate this action. See Chafin, 568 U.S. at 180. If the return order is reversed, there were currently no substantial barriers that would prevent the respondent’s return to the United States with B.A.S. The respondent was a United States citizen and would retain sole custody of B.A.S. in Italy, at least until the custody dispute was resolved in the Italian courts; she should be able to return to the United States if the Court ultimately decided in her favor. The prejudice to the Petitioner weighed against a stay. The Court ordered B.A.S.’s return to Italy almost two years ago, but he still resided in New York. The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court. Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Friedrich, 78 F.3d at 1063). Public interest cautioned against further delay of the return order. Weighing all the factors the court declined to stay the case pending the outcome of the respondent’s petition to the Supreme Court. 

Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021)[Honduras][Now-settled] [petition denied]

 

     In Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3^rd Cir., 2021) [Not Selected for Publication] Kevin Daniel Sauceda Bejarno appealed from the District Court’s denial of his petition to return his son, L.S., to Honduras. The Third Circuit affirmed. It held that although Appellant established a prima facie case that Appellee, L.S.’s mother, had wrongfully removed L.S. from Honduras to the United States, the District Court denied the return request because a petition filed more than one year after removal “is subject to certain affirmative defenses, including Appellee’s demonstration [by a preponderance of the evidence] that ‘the child is now settled in its new environment.’ ” Monzon v. De La Roca, 910 F.3d 92, 96 (3d Cir. 2018) The District Court determined that Appellee met this burden. [This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.]

 

The Court reviewed the factual findings for clear error and any conclusions of law de novo. See Yang v. Tsui, 499 F.3d 259, 270 (3d Cir. 2007). It found that in a careful and thorough analysis of the ten factors specified in Monzon, the District Court determined that only two weighed against L.S. being well-settled in his New Jersey home and community: “the stability of [Appellee’s] employment or other means of support” and “the immigration status of the child and parent.” These factors are: “(1) the age of the child; (2) the stability of the child’s new residence; (3) whether the child attends school ... consistently; (4) whether the child attends church regularly [or participates in other extracurricular and community activities]; (5) the stability of the parent’s employment or other means of support; (6) whether the child has friends and relatives in the area; (7) to what extent the child has maintained ties to [Honduras]; (8) the level of parental involvement in the child’s life; (9) active measures to conceal the child’s whereabouts ... ; and, (10) the immigration status of the child and parent.” A16 & n.14; see Monzon, 910 F.3d at 105, 106 n.88.  As to those factors, the District Court reasoned that L.S. and Appellee were not citizens, so “their immigration status remains uncertain,”  while their asylum application is pending, and that without a work permit, Appellee haf only “worked sporadically in a restaurant,” Nonetheless, it concluded that these considerations were greatly outweighed by the remaining considerations, including L.S.’s “stable” family life with his stepfather and half-brother, with whom he has “grown very close,”; his involvement in school, extracurricular activities, and community activities; and his memories of and ties to America, formed from ages four to six.

 

The Court rejected Appellants argument the District Court erred in declining to hear additional testimony concerning L.S.’s and Appellee’s immigration status and in refusing to treat this factor as dispositive of whether L.S. was well-settled. Appellee’s immigration status would not change the outcome of the ten-factor analysis nor would it be independently dispositive. Immigration status “is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test.” Hernandez v. Garcia Pena, 820 F.3d 782, 788 (5th Cir. 2016). The Court held that the District Court’s ultimate evaluation of the totality of the circumstances was consistent with Article 12 of the Hague Convention and the implementing statute, the Courts precedent, and the case law of other circuits that immigration status “cannot undermine all of the other considerations which uniformly support a finding that [the child] is ‘settled’ in the United States.” In re B. del C.S.B., 559 F.3d 999, 1010 (9th Cir. 2009); see Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012) (noting that “no court has held [immigration status] to be singularly dispositive”), aff’d sub nom. Lozano v. Montoya Alvarez, 572 U.S. 1 (2014); Alcala v. Hernandez, 826 F.3d 161, 174 (4th Cir. 2016) (same). It agreed with the District Court’s conclusion that Appellant met her burden of showing L.S. was well-settled in the United States.