Luis Alfonso V.H. v.
Banessa Cristina A.Z., 512 F.Supp.3d 633 (2021) ( W.D. Virginia, 2021)
[ Honduras] Petition denied] [well-settled exception] .
In our International Child Abduction Blog we report Hague Convention Child Abduction Cases decided by the US Supreme Court, the Second Circuit Court of Appeals, Circuit Courts of Appeals, district courts and New York State Courts. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.
Aluker was a United States citizen,
a Russian citizen, and a legal resident of Portugal. Yan was a United States
citizen who presently resided in Virginia. In 2006, Aluker and Yan were married
in China, and they moved to the United States in 2008. While living in the
United States, Aluker and Yan had two children. The family moved to Spain in
2015, and to Portugal in 2017. Shortly after their move to Portugal, Aluker and
Yan separated. Initially, they shared parental responsibilities. However, in
November 2018, Aluker and Yan executed a Separation and Property Settlement
Agreement (PSA), which stated in relevant part: The parties … agree as follows:
... [Yan] shall have sole legal and primary physical custody of [the two
children]. [Aluker] shall be entitled liberal and reasonable visitation with
the children. ... The parties acknowledge that this Agreement is a full and
final settlement that contains the entire understanding of the parties, and
there are no representations, warranties, covenants, or undertakings other than
those expressly set forth herein.... This Agreement shall be construed in
accordance with the law of the Commonwealth of Virginia. Aluker also agreed in
the PSA that Yan would have sole ownership of their house in Falls Church,
Virginia. The parties further stipulated therein that each had “the right to
reside at any place ... without the consent of the other party.” The PSA was
not incorporated into any court order. Several months after the PSA was
executed, Aluker initiated proceedings in May 2019 in a Portuguese court
seeking an adjudication of child custody rights. The Portuguese court had not
taken any action when, on October 3, 2019, Yan sent Aluker an e-mail stating
that she was taking the children to the United States to live. Yan and the
children traveled to the United States on the same day. Almost a year later, in
September 2020, Aluker filed a petition in the district court under the Hague
Convention. In his “verified petition of return of children to Portugal,”
Aluker contended that the children were wrongfully removed from Portugal. On
the day of a scheduled bench trial, Yan requested a judgment on partial
findings under Federal Rule of Civil Procedure 52(c). The court
conducted a brief evidentiary hearing, allowed Aluker to file a response
memorandum, and later granted Yan’s motion. The court concluded that the PSA
was a valid agreement, which established that Yan had legal custody of the
children at the time she removed the children from Portugal. The court held
that Yan’s status as legal custodian of the children defeated Aluker’s claim of
wrongful removal.
The Fourth Circuit pointed
out that in cases involving claims brought under the Hague
Convention, it review sa district court’s findings of fact for clear error and
its conclusions of law de novo. Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). It noted
that Article 3 of the Hague Convention provides: The removal or the retention
of a child is to be considered wrongful where ... it is in breach of rights of
custody attributed to a person ... under the law of the State in which the
child was habitually resident immediately before the removal or retention ... The
rights of custody mentioned ... above, may arise in particular by operation of
law or by reason of a judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State. Hague Convention,
art. 3. To establish a claim of wrongful removal under the Hague Convention, a
petitioner must show that: (1) the children habitually resided in “the
petitioner’s country of residence at the time of removal;” (2) the removal
breached “the petitioner’s custody rights under the law of his home state;” and
(3) the petitioner was actually exercising his custody rights at the time of
removal. Bader, 484 F.3d at 668; see also Hague Convention, art. 3.
The Fourth Circuit held that irrespective
whether the children were habitual residents of Portugal at the time of their
removal, Aluker’s wrongful removal claim failed because he did not establish
the other two requirements for proving his claim, namely, that when the
children were taken to the United States, he had custody rights under
Portuguese law and he was actually exercising those rights. See Bader, 484 F.3d at 668; Hague Convention, art. 3. At the time the
children were removed from Portugal, no court had awarded custody rights to
Aluker, and the parties had not entered into any written agreement providing
Aluker with such rights. When the children were removed from Portugal, Yan had
sole legal custody of the children, as agreed by the parties in the PSA.
Portuguese choice of law rules
required that it apply United States law in this case. Article 57 of the
Portuguese Civil Code directs that “[r]elationships between parents and
children are regulated by the common national law of the parents, and in the
lack thereof, by the law of their common habitual residence; if the parents
habitually reside in different countries, the law of the child’s country of
origin shall apply.” In applying Portugal’s choice of law provision to this
case, the “common national law of the parents” is the United States, because
both Aluker and Yan are United States citizens. Accordingly, United States law,
here, the law of Virginia, applies to resolve this matter. It found that Aluker has failed to prove under
Virginia law that he had any custody rights at the time the children were
removed from Portugal. The PSA unambiguously provided that Yan “shall have sole
legal and primary physical custody” of the two children. Although Virginia
courts have the power to modify any private custody agreement that parents
execute, parents still may enter into such custody agreements and courts may
rely on them in making custody determinations. See Shoup v. Shoup, 556 S.E.2d 783, 787-89 (Va. Ct. App. 2001); Va. Code Ann. § 20-109.1 At the
time the children were removed from Portugal, no court had altered the terms of
the PSA or had adjudicated the issue of the children’s custody.
The terms of the Hague Convention
also supported the district court’s conclusion that the PSA was a valid
agreement addressing custody rights. Under the Hague Convention, custody rights
can be determined by “an agreement having legal effect under the law of the
[state of the child’s habitual residence].” Hague Convention, art. 3. An
agreement having “legal effect” under the Hague Convention can include “simple
private transactions between the parties concerning the custody of their
children.” Elisa Pérez-Vera, Explanatory Report on the 1980 HCCH Child Abduction
Convention, in 3 Actes et Documents de la Quatorziéme Session – Child
Abduction, at 426, 447, ¶ 70 (1980). It concluded that the district court did
not err in holding that the PSA had “legal effect” within the meaning of the
Hague Convention, and that Aluker failed to prove his claim of wrongful
removal.
In Velozny v Velozny, 2021 WL 3115870
(S.D. New York, 2021) Petitioner Nir Velozny, an
Israeli citizen, petitioned the United States District Court for the return of
his children, R.V., N.V., and E.V., ages 15, 12, and 4, respectively, to Israel.
Petitioner moved for summary judgment, arguing that the children were
wrongfully removed and were being wrongfully retained in the United States by
their mother, Respondent Tal Velozny, who currently resided in New York. Hon. George B. Daniels granted Petitioner’s motion
for summary judgment and his petition for the repatriation of the children to
Israel.
The district court pointed out that neither the Hague Convention
nor ICARA requires an evidentiary hearing or a full trial on the merits. March v. Levine, 136 F. Supp. 2d 831, 833-34 (M.D. Tenn. 2001); see
also March v. Levine, 249 F.3d 462, 474 (6th Cir. 2001); Van De Sande v. Van De Sande, 431 F.3d 567, 572 (7th Cir. 2005). The Court
heard oral argument on the Petitioner’s summary judgment motion on May 6, 2021
and then held a two-day evidentiary hearing on May 25 and June 1, 2021 where
both parents testified under oath.
The undisputed facts demonstrated that
Petitioner established each element of a prima facie case under the Hague
Convention. The United States and Israel are both signatories to the
Convention. The three children are all under the age of 16, were each born in
Israel, went to school exclusively in Israel, and carried Israeli and American
passports. The children were habitual residents of Israel. There was no dispute
that Petitioner had custody rights under Israeli law and was exercising those
rights at the time the children were removed from Israel. Petitioner lived with
Respondent and the children until approximately July 2019. After moving out of
their shared home, Petitioner continued to make attempts to visit and contact
the children until they were removed from Israel. Respondent did not dispute
Petitioner’s custody rights or that those rights were being exercised.
Petitioner satisfied his burden under
the Hague Convention and ICARA and established that the surreptitious removal
of the children by Respondent to New York was wrongful.
The district court found that respondent failed to show that there
were any disputed material facts that supported her affirmative defenses. “[O]nce a [petitioner] establishes that removal was
wrongful, the child must be returned unless the defendant can establish
one of four defenses.” Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999) (“Blondin
II”)
Article 13(a) of the Hague Convention provides that a court “is
not bound to order the return of the child if the person ... [who] opposes its
return establishes that – the person ... having the care of the person of the
child ... had consented to or subsequently acquiesced in the removal or
retention.” Hague Convention, art. 13(a). The consent and acquiescence defenses
are distinct from one another, and both exceptions are narrow. Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir. 2005); Blondin II, 189 F.3d at 246. In order to establish this affirmative
defense, the respondent must prove by a preponderance of the evidence that
petitioner either previously consented or subsequently acquiesced to the
removal of the children. 22 U.S.C. § 9003 (e)(2)(B).. While
“consent needn’t be formal,” Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1359 (11th Cir. 2020), it is
“important to consider what the petitioner actually contemplated and agreed to
in allowing the child to travel outside its home country.” Baxter, 423 F. 3d at 371. “The key to the consent inquiry is the
petitioner’s subjective intent, including the nature and scope of the alleged
consent.” In re Kim, 404 F.Supp.2d 495, 516 (S.D.N.Y. 2005).
Respondent argued that Petitioner consented to the children’s
relocation to New York during the parties’ divorce negotiations, and that the
parties disagreed only on “how much money Petitioner would extract from
Respondent’s family to pay his extraordinary debts.” This argument was belied
by the undisputed evidence. First, it is undisputed that on August 27, 2019,
Petitioner’s Israeli counsel informed Ms. Bash that the children were not to
leave Israel without the Petitioner’s consent. This undisputed fact, admitted
to by Respondent, undermined the statements in Ms. Bash’s declaration and the
argument that Petitioner consented to the removal of the children to the United
States. Second, it was undisputed that the agreements laying out the terms of
the parties’ divorce and their child custody arrangement were in draft form and
unexecuted. Also unavailing was Respondent’s
contention that Petitioner’s communications in the years prior to her removal
of the children to New York evidence consent.
A showing of acquiescence requires a higher degree of formality;
either a formal statement by petitioner or a consistent attitude of
acquiescence over a significant period of time.” Laguna, 2008 WL 1986253, at *7. An acquiescence defense “requires
either: an act or statement with the requisite formality, such as testimony in
a judicial proceeding; a convincing written renunciation of rights; or a
consistent attitude of acquiescence over a significant period of time.” Friedrich, 78 F.3d at 1070. Where, as here, “a petition for the return of
the children is filed prior to the end of the statutory period, courts will
find acquiescence in only a limited set of scenarios.” Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1290 (S.D. Fla. 1999).
Accordingly, “[e]ach of the words and actions of a parent during the separation
are not to be scrutinized for a possible waiver of custody rights.” Friedrich, 78 F.3d at 1070. Respondent’s
assertion that Petitioner subsequently acquiesced to the children’s removal,
based on a text message from Petitioner telling her to “stay there” the day
after she arrived in New York, did not meet the level of formality required for
this defense. Petitioner has actively pursued his rights under the Hague
Convention by seeking counsel and filing a timely petition after learning from
the Israeli police that Respondent and the children had left Israel. Baxter, 423 F.3d at 372; In re Interest of Zarate, No. 96 C 50394, 1996 WL 734613, at *3 (N.D. Ill.
Dec. 23, 1996) Thus, the acquiescence defense was inapplicable.
Article 13(b) of the Hague Convention provides that a court “is
not bound to order the return of the child” if “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.” Hague Convention, art.
13(b). A respondent must establish this defense by “clear and convincing
evidence.” In re Lozano, 809 F. Supp. 2d 197, 220 (S.D.N.Y. 2011). “[A]
grave risk of harm from repatriation arises in two situations: ‘(1) where
returning the child means sending him to a zone of war, famine, or disease; or
(2) 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.’ ”
Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).“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.” The Second Circuit has described the grave risk determination as
falling on a spectrum: “at 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 IV, 238 F.3d at 162. As with the entirety of the Hauge Convention
analysis, the focus of the grave risk inquiry is “not the relationship between
the two parents or the desirability of one party having custody.” Souratgar v. Fair, 2012 WL 6700214 at *7 (S.D.N.Y. 2012). Rather
the focus is on whether the return of the children to the country they were
removed from will create a true risk of harm to the children.
The grave risk defense has been found to be satisfied where
respondents show “a sustained pattern of physical abuse and/or a propensity for
violent abuse that presented an intolerably grave risk to the child.” Souratgar, 720 F.3d at 104. Additionally, spousal abuse can establish a
grave risk of harm “when it occurs in the presence of the child.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014); see
also Souratgar, 720 F. 3d at 103-104. Importantly, “[s]poradic 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.” Souratgar, 720 F. 3d at 104. “The Article 13(b) 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.”
It was undisputed that in
July 2019 Petitioner and Respondent had an argument while in Petitioner’s car. After
parking the car in front of the family home he forcibly removed Respondent from
the car by grabbing her arm, resulting in a bruise on Respondent’s arm.
Petitioner also admitted that, three- or four-times during arguments, when
Respondent would “come to [his] face” he would “push her back.” (Respondent’s
testimony confirmed these events, but noticeably absent wass any evidence that
these events took place in front of the children. There was no evidence in the
record to support a finding that Petitioner’s conduct towards Respondent was observed
by the children or puts the children at a grave risk of harm.
Respondent never claimed that Petitioner ever physically abused
any of the children. Respondent testified that Petitioner would “belittle” N.V.
It is alleged, that Petitioner would shout at N.V. and tell him that he needed
to “succeed,” “do better,” “leave [his] phone alone,” not be “stupid,” and not
be “stupid like [Petitioner]” because he didn’t finish high school. These
allegations, while perhaps not the most pedagogically advanced, do not amount
to a grave risk of physical or emotional abuse from Petitioner. The allegations
here regarding treatment of the children can be characterized as disciplinary
in nature. Souratgar, 720 F.3d at 105.
Respondent alleged that Petitioner abused drugs, left drugs lying
around the home, and was “totally consumed” by drugs to the point that he was
“unable to function as a parent.” Petitioner admitted to using drugs
“recreationally” about once every month or two when he would go to an event or
party. “Drug use, under certain circumstances, ... may qualify as grave-risk
conduct.” Mlynarski v. Pawezka, 931 F. Supp. 2d 277, 284 (D. Mass. 2013), aff’d,
2013 WL 7899192 (1st Cir. May 8, 2013). Courts
use a two-step approach to determine whether allegations of drug use qualify as
a grave risk. “[T]he court must first determine whether the alleged ... drug
use in fact occurred. Beyond that, the court must consider as part of the grave
risk analysis how such conduct, if confirmed, would affect the child were he to
be returned to his habitual residence.”
Respondent admitted that she never witnessed Petitioner use drugs in
front of the children. It was clear that the drug use at issue here did not
rise to the level that put the children at a grave risk of harm. Respondent
failed to meet her burden to establish by clear and convincing evidence that
the children’s return to Israel would expose them to a “grave risk of physical
or psychological harm or otherwise place [them] in an intolerable situation.”
Convention, Art. 13(b).
Respondent’s third and final defense relied on an unnumbered
provision in Article 13 of the Hague Convention, which provides that a court
may “refuse to order the return of the child if it finds that the child objects
to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views.” Hague Convention, art. 13. There is
no “minimum age at which a child is old enough and mature enough to [object
and] trigger this provision.”
Blondin IV, 238 F.3d at 166. However, the exception must be “construed
narrowly so [its] application does not ‘undermine the express purposes of the
Convention.’ ” Yang v. Tsui, 499 F.3d 259, 278 (3d Cir. 2007)). Notably, proving that the
defense applies is not dispositive; courts ultimately retain discretion to
order repatriation despite that showing. Blondin II, 189 F.3d at 246 n.4; see also Haimdas v. Haimdas, 720 F. Supp. 2d 183, 204 (E.D.N.Y. 2010). Generally,
“[a] child’s expression of a preference to remain in the United States
rather than a particularized objection to repatriation may provide a
basis for a court to find the mature child exception inapplicable.” Haimdas, 720 F. Supp at 206; see also Yang, 499 F.3d at 280.
Having reviewed expert report submissions reflecting a combined 5
hours and 50 minutes of clinical interviews with R.V. and N.V, the Court concluded that
Respondent’s child objection defense was unavailing and declined to apply the
exception. Neither one of the
expert reports suggested that N.V. held an unequivocal, bona fide objection to
repatriation. In his interview with Dr. Favaro, N.V., who is twelve years old,
stated that returning to Israel would make him “anxious and upset” because
“[h]e likes the school here [in New York], ... has made good friends [in New
York], and loves living with his maternal grandparents and would miss his
family life if he were forced to return [to Israel].” N.V.’s wishes did not
rise to the level of an unequivocal objection to return to Israel. While N.V.
expressed that he would be “anxious and upset” to return, his stated reasons
for feeling that way revolve around his enjoyment of his new school and new friends, and that he
likes living with his maternal grandparents. These reasons did not indicate a
substantial basis for his objection to a return to Israel, so much as it
reflected his enjoyment of his current lifestyle in New York. The case for
declining to apply the mature child exception was even stronger after examining
R.V.’s alleged objections. According to Petitioner’s expert, R.V., who recently
turned fifteen, “reported that life in Israel ‘was not bad.’ ” Respondent’s
expert, meanwhile, reported that R.V. “expressed a preference to stay in the
United States and that the quality of his life would not be satisfying if he
returned to Israel.” Again, there was no unequivocal objection here—neither a
mere preference nor expected quality of life are relevant considerations under
the Hague Convention. R.V. “at no point ...
express[ed] a clear objection to his return to Israel.” Respondent did not meet
her burden of showing that R.V. unequivocally objects to repatriation to
Israel. Accordingly, this Court declined to apply the discretionary mature
child exception.
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.
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] .
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]
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]
Sain v Sain, 2021 WL 2784324 (M.D. Florida, 2021)
[United Kingdom] [Habitual
residence][Petition denied]
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] .
Nowlan v Nowlan, 2021 WL 2379815 ( W.D. Virginia, 2021)
[Canada] [Habitual residence ] [Petition granted] [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.
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.