Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9th Cir.,2021) [Germany] [Grave risk of harm] [Petition granted] [Undertakings][Alternative remedy]

In Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9^th Cir.,2021) Persephone Johnson Shon left her husband in Germany and removed her two minor children to Arizona, where they resided for the last two years. The district court found the repatriation of the minor children to Germany posed a grave risk of psychological harm if in the father’s custody. To alleviate that risk, the district court ordered that the children be transferred back to Germany in Shon’s custody until a German court made a custody determination. The Ninth Circuit vacated and remanded for the district court to reasonably ensure compliance with its alternative remedy in Germany.

 

Bodgan Radu, a dual citizen of Romania and the United States, married Shon, a United States citizen, in 2011 in California. The couple has two children, O.S.R. born in 2013 in the United States and M.S.R. born in 2016 in Germany. The couple initially lived and worked in the United States. In December 2015, Radu traveled to Germany for a contractor job with the U.S. State Department. In March 2016, Shon moved to Germany along with O.S.R. and M.S.R. Shon, Radu, O.S.R., and M.S.R. lived together in Germany in an apartment leased from Inge Frick-Wilden. Shon was a “full-time mom” while living with Radu in Germany. Shon alleged that Radu abused her and the children after they moved to Germany. According to Shon, Radu constantly yelled and screamed at her about the messy apartment, put her down, and called her profanities. Shon did not trust Radu’s parenting because “when he would rage and get angry and mean ... [h]e couldn’t control himself.” Shon provided examples of Radu’s rage and anger. In June 2016, Shon unknowingly gave O.S.R. sour milk to drink. In response, Radu allegedly slammed his hand on the table, threatened Shon, and accused her of trying to poison their son. Janet Johnson, Shon’s mother, witnessed the sour-milk incident and testified that Radu “exploded all over [Shon] about being a terrible mother.” In October 2017, Shon tripped on a stool and spilled broccoli across the floor. Radu allegedly screamed, yelled, and called O.S.R. “bad names, calling him stupid for leaving the stool out” while O.S.R. was “cowering.” In March 2018, while Shon was handling bath time for the children, Radu allegedly flung the bathroom door open and slapped O.S.R. across the face. Finally, during a potty-training incident, while Shon was teaching M.S.R., Radu allegedly was “slamming against the door” and yelling for Shon to get M.S.R. to stop crying. Throughout these events, Shon never contacted law enforcement or sought a protective order or other legal remedy while living with Radu. However, she testified that she “was terrified of [Radu]” and “feared retaliation”—that is, he would hurt her or the children. In March 2019, after Radu allegedly sexually assaulted Shon, she decided that she was not going to stay with Radu. On June 10, 2019, Shon flew one way to Arizona with both O.S.R. and M.S.R. Since Shon’s departure, she and the children  resided in Arizona where she enrolled the children in school. Shon later filed for a divorce in Arizona. Shon obtained counseling from a licensed psychotherapist, approximately forty times. According to her, Shon exhibited symptoms of posttraumatic stress disorder.

 

On June 8, 2020, Radu filed a Verified Petition for Return of Children to Germany. The district court granted Radu’s Petition, ordering Shon to return O.S.R. and M.S.R. to Germany.. The district court carefully considered what type of remedy would safely allow the children to return to Germany. To “mitigate th[e] risk of psychological harm” to the children, the district court ordered an alternative remedy that “Shon shall retain temporary custody and care of the children until a custody determination can be made by a German court of competent jurisdiction.” The district court made several findings. First, the district court found and Shon conceded that “Shon’s removal of the children to the United States, and retention of them therein, was wrongful within the meaning of Article 3 of the Convention.” Second, the district court found that Article 12— “if less than one year has elapsed from the date of the wrongful removal or retention and the commencement of the proceedings” the children shall be returned—applied absent an exception. However, the district court found an Article 13(b) exception applied because “the children would be at grave risk of psychological harm if returned to Germany in the custody of Radu.” The district court found the “evidence presented at the evidentiary hearing supported a finding that Radu behaved in ways that could be characterized as psychologically or emotionally abusive.” At the hearing, Radu testified: “Probably in the heat of the passion, I may have called them [names] a couple of times .... So, I do regret it, looking in perspective right now. Maybe I should have used a different tone [of] voice or a different type of -- better approach in managing my children.” The district court found the “evidence insufficient to show that O.S.R. and M.S.R. would be at grave risk of physical harm if returned to Germany” and there was “no evidence of any sexual abuse of the children. Shon appealed and the district court stayed its order pending resolution of the appeal.

 

The Court pointed out that Article 13(b) gives courts discretion not to return the children if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The Convention and ICARA “dictate that custody must be determined by the home jurisdiction”—in this case, Germany—“unless the existence of a ‘grave risk’ truly renders that impossible.” If a court decides that the record supports an Article 13(b) defense, it “must proceed to consider whether that risk can be minimized or eliminated through some alternative remedy.”

 

The Court observed that its ,controlling precedent on alternative remedies is set forth in Gaudin. 415 F.3d 1028. “[B]efore denying the return of a child because of a grave risk of harm, a court must consider alternative remedies that would allow both the return of the children to their home country and their protection from harm.” The “question is simply whether any reasonable remedy can be forged that will permit the children to be returned to their home jurisdiction for a custody determination while avoiding the ‘grave risk of psychological harm’ that would result from living with” the petitioning parent. It noted a few guidelines for determining whether a grave risk of harm may be mitigated through an alternative remedy: (1) the district court must consider the “effect of any possible remedies in light of circumstances as they exist in the present” meaning “whether a grave risk of harm now exists, and if so, whether that risk can be minimized through an alternative remedy” and (2) the district court must not be influenced by or accord weight to any existing custody proceedings. If a district court makes an Article 13(b) grave-risk-of-harm finding—as the district court did below—the alternative remedy must significantly reduce, if not eliminate, the grave risk of harm to the children. See Saada v. Golan, 930 F.3d 533, 541 (2d Cir. 2019) To that end, district courts need to determine whether and how the alternative remedy is likely to be performed. An alternative remedy evaluation in the context of an Article 13(b) finding must consider whether the return remedy is more likely than not to reduce the short-term risk of harm accompanying repatriation, thus protecting the child’s psychological safety. A district court’s evidence-gathering cannot weigh matters or apply measures treading on the ultimate custody determination—e.g., whether the children are better off with one parent or another. Nor should the alternative remedy incorporate any long-term considerations or conditions that conflict with the Convention and ICARA.

 

The Court held that the  children’s interests, not the parents’ preference or inconvenience, are paramount to evaluating whether an alternative remedy mitigates the grave risk of harm. Appropriate considerations include the enforceability of the alternative remedy in the foreign jurisdiction based on the availability of legal measures to mitigate the child’s risk of harm, reliability of testimony indicating compliance with any court orders or legal measures, as well as history of the parent’s relationship, cooperation, and interpersonal communications. See Saada, 930 F.3d at 541–42. Any supportive reinforcements that may be necessary should reflect these considerations. Accordingly, the district court may solicit any promises, commitments, or other assurances to facilitate repatriation, which may involve directing parents to arrange for legal measures in the foreign jurisdiction—the children’s habitual residence. The district court may need to review foreign law to evaluate the reach of that foreign court’s authority in issuing legal measures or other relief in support of the alternative remedy.

 

Radu discussed German Code of Civil Procedure § 328 for its standards on enforcing foreign judgments. The Court of Appeals found that an analysis of Germany’s pertinent civil laws, and other aspects of its legal apparatus (processes, procedures, and so forth) may inform whether the district court should direct the parties to obtain protective measures abroad or confirm whether domestic orders suffice. But given its limited authority abroad and potential comity concerns, the district court should not make the order of return with an alternative remedy contingent on the entry of an order by the children’s country of habitual residence. The district court may also solicit supplementary evidence, and in particular testimony, from the parents on these or related issues to determine the nature of supportive reinforcements. In rare circumstances, oral commitments from one parent to obey court orders may be enough. Voluntary commitments or agreements—those without third-party intervention—are acceptable depending on the parties’ pattern of behavior and the severity of risk of harm to the children (which must be low).

 

The Court of Appeals held that the  district court should also, if needed, contact the United States Department of State Office of Children’s Issues to coordinate legal safeguards or otherwise procure assistance from the foreign jurisdiction to address or resolve any issues animating the Article 13(b) grave risk of harm finding. Citing Convention Art. 7 (listing measures available through Central Authorities). Logistical arrangements such as financing the return of the children or securing housing or temporary placement should not undermine the alternative remedy. The options are extensive, but this framework provides the guideposts for navigating the provisions of the Convention and ICARA and creating a reasonable remedy for a short-term period. The district court may also consider activity in the children’s habitual residence, including criminal proceedings, if it could significantly interfere with implementing the supportive reinforcements and otherwise reduce the likelihood of performance. Supportive reinforcements generally should be limited in scope and thus not extremely burdensome to either party to avoid litigation over the merits of custody issues. Resolving the parameters of safe repatriation of the children is paramount.

 

On appeal, Radu did not properly challenge the district court’s finding that his children would face a grave risk of psychological harm if returned to Germany. The focus of the inquiry here was  the alternative remedy based on the district court’s findings. The Ninth Circuit vacated and remanded the alternative remedy order since the record did not adequately support whether the order of the children’s return in Shon’s custody had a high likelihood of performance through supportive reinforcements.

 

Shon argued that the alternative remedy “is overbroad and exceeds the scope of the lower court’s authority” because it required her to move to Germany, “orders the children to remain” in her custody, and “implicitly requires [her] to file a custody case in Germany and the German court to act on it.” The Court held that the Convention presumes relocation of the children to facilitate repatriation. If relocation of the abducting parent (or a responsible family member) can help alleviate any grave risk of harm from repatriation of the kids, the district court retains that discretion. The Court held that because Shon wrongfully removed the children, as she conceded, the district court in no way exceeded its authority to mandate the children’s return to Germany accompanied by Shon. But in the context of an Article 13(b) finding, the district court needed a fuller record to have sufficient guarantees that the alternative remedy will be enforced in Germany. There are multiple resources the district court may engage, including assistance via the U.S. Department of State, to fulfill the Convention’s presumptive goal of the speedy return of the children. That Germany is a treaty partner with the United States already informs baseline expectations. It must respect that another treaty partner—a contracting State to the Convention—is well-equipped with the proper legal mechanisms and internal processes and procedures to support alternative remedies and otherwise fulfill treaty obligations. An Article 13(b) grave risk of psychological harm finding does not automatically terminate further investigation into a reasonable alternative remedy.

Recent Hague Convention District Court Cases - Nobrega v Colmenares, 2021 WL 3518154 ( M.D. Florida, 2021) [Venezuela] [Petition granted][Grave risk of harm not established]

 

Nobrega v Colmenares, 2021 WL 3518154 ( M.D. Florida, 2021)

[Venezuela] [Petition granted][Grave risk of harm not established]

Grano v Martin, 2021 WL 3500164 (S.D. New York, 2021) [Spain] [Petition granted] [Necessary Costs & Expenses] [Award reduced by 85% due to inability to pay]

 

In Grano v Martin, 2021 WL 3500164 (S.D. New York, 2021) the parties filed objections to the  Report and Recommendation (“R&R”) of  Magistrate Judge Davison recommending that Petitioner’s motion for attorney’s fees and costs incurred in connection with prosecuting this case be granted in part and denied in part. Petitioner requested a total of $467,944.46 ($359,799.05 in fees and $108,145.41 in costs). The District Court adopted the R&R in part and awarded Petitioner fees and costs in the amount of $34,296.19.

 

        The successful Petitioner filed a motion for attorney’s fees and costs.  Respondent argued that an award would be inappropriate, and that the motion should be denied, because of the abuse she suffered from Petitioner and her indigent financial condition. In the alternative, Respondent argued that Petitioner’s requested amount should be reduced because Petitioner’s counsel’s hours were not necessary or reasonable, and the records were insufficient to evaluate the necessity of the work performed.

 

The Court observed that in reviewing a magistrate judge’s report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A party may object to the magistrate judge’s report and recommendation, but the objections must be “specific,” “written,” and submitted “[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(C). A district court must review de novo those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). “The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see Marji v. Rock, No. 09-CV-2420, 2011 WL 4888829, at *1 (S.D.N.Y. Oct. 13, 2011). The district court may adopt those portions of a report and recommendation to which no objections have been made, provided no clear error is apparent from the face of the record. See White v. Fischer, No. 04-CV-5358, 2008 WL 4210478, at *1 (S.D.N.Y. Sept. 12, 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); Fed. R. Civ. P. 72 advisory committee note (b).

 

 

The court noted that the reasonable hourly rate is the “prevailing market rate, i.e., the rate prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Farbotko v. Clinton County, 433 F.3d 204, 208 (2d Cir. 2005) (cleaned up). Mr. Abbott billed at a rate of $675 when representing Petitioner. Mr. Morley billed at a rate of $600 when representing Petitioner. Mr. Saltzman billed at a rate of $400 when representing Petitioner. The Court found  a  rate of $425 to be reasonable for Mr. Morley. Because Mr. Abbott was not as well-credentialed as Mr. Morley in Hague Convention matters it found a rate of $400 is reasonable and appropriate for him. The court found  a rate of $375, consistent with Mr. Saltzman’s rate of $375, was  reasonable for two other attorneys. As to the paralegals,  $129 was  reasonable.

 

The Court found that “retaining multiple counsel in a case as complex as this one was ... entirely reasonable.”  The Court agreed with Judge Davison’s recommendation that the Court disallow compensation for fees associated with collateral state proceedings and reduce all unclear or comingled time entries by 50%, arguing that those hours were necessarily incurred to secure the return of the child. It found Petitioner’s necessary fees and costs are as follows: $183,686.42 (fees) + $6,692.11 (costs paid by counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25 in fees and costs.

 

Respondent objected to the R&R on the basis that Petitioner’s coercive control and psychological abuse towards her rendered an award of fees and costs “clearly inappropriate” under ICARA, 22 U.S.C. § 9007(b)(3), relying on Souratgar, 818 F.3d at 79, Radu v. Shon, No. 20-CV-246, 2021 WL 1056393, at *4 (D. Ariz. Mar. 19, 2021), Guaragno, 2011 WL 108946, at *2, and Silverman v. Silverman, No. 00-CV-2274, 2004 WL 2066778 (D. Minn. Aug. 26, 2004).

 

The Court noted that Second Circuit has held that an award of fees and costs is clearly inappropriate when the successful petitioner bears responsibility for “the circumstances giving rise to the petition.” Souratgar, 818 F.3d at 79-80. The Souratgar petitioner bore such responsibility because (1) he committed acts of physical violence against the respondent that did not stop after the respondent had left the family home, (2) the respondent’s departure from the country was related to the petitioner’s violence, and (3) there were no countervailing factors that favored the petitioner. Likewise, in both Guaragno and Silverman, the court found that the petitioner’s physical and mental abuse of respondent was an appropriate consideration in determining if the fee award was inappropriate. See Guaragno, 2011 WL 108946, at *3; Silverman, 2004 WL 2066778, at *4. In Radu, the abuse was almost entirely psychological, as it was here, but the abuse was only one of several reasons for concluding that a fee award was clearly inappropriate. See 2021 WL 1056393, at *3-4 (no fee awarded because petitioner prevailed only in part, award would prevent respondent from caring for children, petitioner provided no support for children and petitioner was psychologically abusive). The “unclean hands” exception to a fee award is almost always applied to acts of physical violence, sometimes coupled with acts of emotional abuse, and Respondent had not provided authority for the proposition that an award can be clearly inappropriate based on emotional abuse alone. See Hart v. Anderson, No. 19-CV-2601, 2021 WL 2826774, at *6 (D. Md. July 7, 2021) (finding petitioner’s “repeated pattern of alcohol abuse and violence” rendered a fee award inappropriate); see also Jimenéz Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 428357, at *2 (E.D. Mich. Jan. 28, 2020) (finding an award for fees and costs inappropriate where petitioner had physically abused respondent and their child); Asumadu v. Baffoe, No. 18-CV-1418, 2019 WL 1531793, at *1 (D. Ariz. Apr. 9, 2019) (finding same when petitioner physically abused the respondent more than once). Souratgar referred repeatedly to the petitioner’s “violence,” as opposed to “abuse,” which suggests the Court meant physical, not mental, abuse. See 818 F.3d at 79-82. The court found that this case, which was almost entirely about psychological as opposed to physical abuse, and in which both sides were less than candid, did not rise to the level of those cases justifying complete denial of an award. Further, an award of at least some fees serves the statutory purpose of deterring future child abductions. In re JR, No. 16-CV-3863, 2017 WL 74739, at *4 (S.D.N.Y. Jan. 5, 2017). Although the coercive control Respondent experienced was no doubt serious domestic abuse, the court agreed with Judge Davison that Respondent had not met her burden to show that a fee award to Petitioner would be clearly inappropriate.

 

 

The Court observed that “[A] respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar, 818 F.3d at 81; see In re J.R., 2017 WL 74739, at *4. Courts in the Second Circuit have been “mindful that an expenses award that is greater than a respondent’s total assets requires, at the very least[,] a reasoned explanation.” Sanguineti, 2016 WL 1466552, at *9 (cleaned up); accord Lukic v. Elezovic, No. 20-CV-3110, 2021 WL 1904258, at *2 (E.D.N.Y. May 12, 2021). When a respondent demonstrates financial hardship, courts have reduced the fee award proportionately. See, e.g., Whallon v. Lyon, 356 F.3d 138, 141 (1st Cir. 2004) (affirming reduction in fees and expenses by 65%); Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir. 1995) (reducing fee award by around 46% after considering respondent’s straitened financial circumstances); In re J.R., 2017 WL 74739, at *4 (reducing award by two-thirds after considering respondent’s inability to pay); Willing v. Purtill, 07-CV-1618, 2008 WL 299073, at *1 (D. Or. Jan. 31, 2008) (reducing award by 15% due to respondent’s financial circumstances, including respondent’s unemployment). An award should be reduced with ICARA’s purpose in mind, meaning the award should still deter future violations of the Convention. See In re J.R., 2017 WL 74739, at *4; Willing, 2008 WL 299073, at *1.

 

Here, Judge Davison reduced the award by 85% in light of Respondent’s demonstrated financial hardships. Respondent demonstrated that she was under financial strain: she had not been able to secure employment in Spain as she was not a legal resident there, and she owed her attorneys over $170,000. She represented that she had no savings, assets, or property. Her most recent bank statement provided to the Court represented that she had a savings account with a balance of $395.10, and a checking account with a balance of $3,255.36. Her net income in 2019 was approximately $27,551. As such, Respondent had sufficiently demonstrated that a substantial fee award for Petitioner would greatly strain her finances, and Respondent clearly would not be able to pay an unreduced award of fees and expenses totaling $228,641.25. While a complete reduction in fees and costs was not necessary –she had a graduate degree from a Spanish university and should at some point be able to get permission to work, the court agreed  with Judge Davison’s reduction of the award by 85%.

 

           The revised lodestar amount was as follows: ($183,686.42 (fees) + $6,692.11 (costs paid by Petitioner’s counsel) + $38,262.72 (costs paid by Petitioner)) = $228,641.25, reduced by 85% = $34,296.19.

 

Recent Hague Convention District Court Cases - Wan v DeBolt, 2021 WL 3510232, (United States District Court, C.D. Illinois, 2021) [Hong Kong][Petition granted][Necessary Costs] [Petitioner sought $518,307 in attorneys’ fees and $155,710.07 in costs; Court awarded Petitioner $310,933.50 in attorneys’ fees and $134,355.95 in costs; $650 hourly rate of Feinberg reduced to $425 an hour]

 

Wan v DeBolt, 2021 WL 3510232, (United States District Court, C.D. Illinois, 2021)

[Hong Kong][Petition granted][Necessary Costs] [Petitioner sought $518,307 in attorneys’ fees and $155,710.07 in costs; Court awarded Petitioner $310,933.50 in attorneys’ fees and $134,355.95 in costs; $650 hourly rate of Feinberg reduced to $425 an hour]

Recent Hague Convention District Court Cases - 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] .

 

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] .

 

Aluker v Yan, --- Fed.Appx. ----, 2021 WL 3417968 (4th Cir. 2021)[Portugal] [Habitual Residence] [Rights of Custody][Petition denied]

 

           In Aluker  v Yan, --- Fed.Appx. ----, 2021 WL 3417968 (4th Cir. 2021) the Fourth Circuit affirmed the holding of the  district court which concluded that Serge Aluker, the father of two minor children, did not have custody rights recognized by the Hague Convention and, therefore, failed to prove that the children’s mother, Simin Yan, wrongfully removed the children from Portugal to the United States.

 

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.

Velozny v Velozny, 2021 WL 3115870 (S.D. New York, 2021) [Israel] [Consent] [Grave Risk of Harm] [Mature Child Defense][Petition granted]

 

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.

 

     Petitioner, Nir Velozny, was an Israeli citizen who currently resided in Israel. Respondent, Tal Velozny, a U.S. citizen, was Petitioner’s wife and currently lived in New York. The couple first met in 2001, were married in 2002 (in both the United States and Israel), and moved to Israel in 2005. The couple has three minor children: R.V., N.V., and E.V, all of whom were born in Israel. Petitioner and Respondent shared a home in Tel Aviv with their children until approximately July 2019.  Around that time, Petitioner moved out of the family home and informed Respondent that he wanted a divorce. In August 2019, Petitioner filed a petition with the State of Israel Rabbinical Courts to initiate a divorce proceeding. An initial divorce proceeding before Israel’s Rabbinical Court was scheduled for October 2, 2019. The parties, through counsel, began negotiating a divorce and custody agreement and counsel held two meetings in August. After one meeting, Petitioner’s Israeli counsel instructed Respondent’s Israeli counsel that the children were not to leave Israel without Petitioner’s consent. The parties never executed the divorce and custody agreement. On September 28, 2019, just days before they were to appear before the Rabbinical Court, Respondent booked a round-trip ticket for her and the children from Tel Aviv to the United States. Respondent left in secret, never informing Petitioner that she was moving the children to New York. Nor did she tell the children that they were going to stay in the United States. Petitioner discovered that Respondent and the children had left Israel when he went to the family home on September 28^th to check in with the children before the start of Rosh Hashana and found it dark. Petitioner went to Respondent’s parent’s home where he was told by the doorman that Petitioner had left for the airport. Petitioner next went to the police station, where the police confirmed that Respondent and the children had left Israel. Respondent and the children have remained in New York (and not returned to Israel) since September 2019.

 

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.