Colchester v Lazaro, --- F.4th ----, 2021 WL 4929601 (9th Cir., 2021)[Spain] [Petition granted][Grave risk of harm][Discovery] Reversed for abuse of discretion]

 

In Colchester v Lazaro, --- F.4th ----, 2021 WL 4929601 (9^th Cir., 2021) the child’s father sought the return of the child to Spain. The mother argued that returning the child to her father, who she alleged had abused both her and her baby, would present a grave risk of psychological or physical harm to the child, and a defense under Article 13(b) of the Convention applied. The district court granted  the  petition for the return. The Fifth Circuit held that the district court abused its discretion in denying Lazaro’s application for a meaningful psychological examination of S.L.C. which resulted in actual and substantial prejudice to Lazaro, since there was a reasonable probability that ordering the exam would have changed the result at trial. The court’s denial of that examination therefore constituted reversible error. It vacated the order and remanded the matter to the district court for appointment of a psychologist and a new trial

 

The Court pointed out that the Hague Convention’s central operating feature is the return remedy. Where a parent files a petition for return alleging that a child under the age of 16 was wrongfully removed or retained within the last year, “the country to which the child has been brought must ‘order the return of the child forthwith,’ unless certain exceptions apply.” Among those exceptions is the “grave risk” defense: Article 13(b) of the Convention provides that “the judicial ... authority ... is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or would otherwise place the child in an intolerable situation.” Convention, art. 13(b), 19 I.L.M. at 1502. This “grave risk” defense reflects the proposition that “the remedy of return ... is inappropriate when the abductor is a primary caretaker who is seeking to protect herself and the children from the other parent’s violence.”  A respondent parent can establish a grave risk of harm from abuse “where the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Spousal violence may also “establish a grave risk of harm to the child, particularly when it occurs in the presence of the child.” The grave risk exception is narrowly drawn. ICARA requires that a respondent must establish the Article 13(b) grave risk defense by clear and convincing evidence. And even when the respondent establishes that a grave risk of harm exists, the court may still order the child’s return if it determines there are ameliorative measures that would “allow both the return of the child[ ] to [his or her] home country and [the child’s] protection from harm.”

 

S.L.C. was the now-six-year-old, U.S.-citizen daughter of Appellant Jewel Lazaro, who resided in or around Seattle, WA, and Appellee Seth Colchester, who resided in or around Barcelona, Spain. In January 2020, Colchester was given sole custody of S.L.C. by a Spanish court sitting in Barcelona. Lazaro, who lacked the resources to live in Spain fulltime, was visiting Colchester and S.L.C. in April 2020, as the COVID-19 pandemic erupted. According to Lazaro’s testimony at the bench trial below, during that visit Colchester often “screamed at and acted aggressively toward both her and S.L.C.” Lazaro testified about several specific instances of alleged abuse that occurred at the time, including: • Colchester grabbing S.L.C. by the arm and throwing her down the hallway, leading S.L.C. to cry and hide in her room with Lazaro;• Colchester screaming at S.L.C. to “get downstairs, before I kick you downstairs” and then kicking S.L.C. down the stairs; • Colchester screaming at S.L.C. on various occasions for things like not folding his laundry, and sticking his finger in her face and making her cry;

More generally, Lazaro also alleged that Colchester repeatedly screamed at five-year-old S.L.C. and compelled S.L.C. to do various chores, including his dishes and laundry. Following these incidents, Lazaro absconded with S.L.C. After fleeing Colchester’s home, she falsely told local Spanish police that she had legal custody of S.L.C. She also hired a Spanish forensic psychologist, Dr. Alicia Romero Fernandez, who conducted a preliminary examination of S.L.C. for approximately 90-minute via Skype and through a translator. After Lazaro was unable to find anywhere to stay in Spain because of the COVID-19 lockdown, she and S.L.C. fled to the United States using a passport for S.L.C. that Lazaro had previously claimed to have lost. Colchester then filed a Hague Convention application in Spanish court, filed a criminal complaint against Lazaro in Spain, and applied to the governments of Spain and the United States for S.L.C.’s return. The Spanish court eventually issued a warrant, based on an order declaring that Spain was S.L.C.’s habitual residence and that Lazaro’s removal of S.L.C. to the United States was wrongful under the Convention. Lazaro and S.L.C. eventually made it to Washington State.

 

Colchester filed the Hague Convention proceeding on July 20, 2020 in Snohomish County Superior Court, seeking S.L.C.’s return under the Convention and ICARA. On October 25, 2020, Lazaro’s counsel accepted service of the Hague Convention petition and removed this action to the Western District of Washington.

 

After Colchester belatedly requested expedited proceedings in mid-January, the district court held a status conference on January 27, 2021. Lazaro filed a pre-conference memorandum setting forth two limited discovery requests: a psychological examination of S.L.C. and limited document requests. At the conference, the court questioned why a psychological exam was required, since Dr. Romero had already examined S.L.C. in April 2020 by video. Lazaro’s counsel explained that the prior exam was a relatively short “initial screening” conducted through an interpreter and that the psychologist recommended a more extensive examination. Counsel explained that it would be difficult to continue working with the Spanish psychologist, not just because of the challenges posed by conducting an effective examination through a translator, but also because the nine-hour time difference would complicate efforts to complete the necessary exams and trial preparation on the expedited schedule Colchester had requested. Counsel argued that it was necessary to conduct an exam informed by the case law applicable in the district court, which Dr. Romero had not considered. Counsel explained that such psychological exams of children are routine in Convention cases and that Lazaro would develop reliable evidence that S.L.C. suffered psychological harm from Colchester’s alleged abuse of her and Lazaro, which would be “critical” to establishing the affirmative defense that S.L.C. faced a grave risk of psychological harm from living with Colchester. In support, Lazaro cited a recent Convention case in the Western District of Washington in which the judge declined to find that a grave risk of harm to the child existed, despite crediting the respondent mother’s allegations of severe domestic violence, because no psychological expert testified about the “potential for psychological harm to children in cases of spousal abuse.” Consequently, counsel argued that “we can’t rely solely on witness testimony, and the relatively cursory Spanish evaluation, to prove grave risk by clear and convincing evidence.” The Court then ruled, without explanation and even though there had been no discovery, that “we’re going to have no more discovery. I’m not going to order the evaluation to take place.” The court then set a four-day bench trial for February 22, 2021.

 

The bench trial, conducted over videoconference, started three weeks later. Lazaro attempted to present evidence of alleged domestic violence through fact witness testimony, medical records, and the testimony of Dr. Romero (the Spanish psychologist who had conducted a preliminary examination of S.L.C. over videoconference in April 2020). On the first morning of trial, the district court denied Lazaro’s offer for S.L.C. to testify in whatever manner the court deemed appropriate, such as in camera and ex parte. The court thus precluded the testimony of the person with the most personal knowledge of whether S.L.C. had been abused, namely, S.L.C. herself. At trial, Lazaro alleged other instances of Colchester abusing her and S.L.C. beyond those said to have occurred during her spring 2020 visit to Colchester’s Barcelona home (as previously referenced). These included: Throwing a bowl of soup at Lazaro’s head, leaving a bruise;  Keeping Lazaro and S.L.C. “under [his] control financially ... ma[king] her beg him on a weekly basis just for money for food;” Kicking Lazaro in the stomach when she was three-months pregnant with S.L.C. and forcing her to sleep in the closet; Punching and screaming at Lazaro when she was seven-months pregnant, after she sat in the driver’s seat of his car, then throwing her to the ground, dragging her through the gravel, and leaving her on the side of the road for hours; Hitting Lazaro in the head with S.L.C.’s bag, in front of S.L.C.; Smashing Lazaro’s guitar, in front of S.L.C., after Colchester’s associate told him that Lazaro was out with a friend; Shoving Lazaro into walls, on numerous occasions, in front of S.L.C.; Slapping Lazaro and ripping S.L.C. away, when she was breastfeeding S.L.C. rather than paying attention to Colchester; Throwing S.L.C. out of a first-floor kitchen window, after screaming at her about breakfast dishes, then locking S.L.C. outside until dinnertime without giving her food. Some of these incidents were corroborated with contemporaneous evidence, including text and photo messages exchanged with Colchester, emails to domestic violence organizations, and an audio recording, as well as testimony from cross examination of Colchester’s mother.

 

Dr. Romero testified at trial as a psychological expert in forensic evaluation of children. Her opinions were based entirely on her spring 2020 evaluation of S.L.C. Dr. Romero testified that she concluded there was “the possibility that [S.L.C.] [wa]s being abused by her father” because she “verbalized that she was scared of her father and that she had suffered physical abuse at the hand of the father.” She further testified that she did “not detect[ ] any indication that [S.L.C.] had been manipulated,” and that she did not discern that Lazaro was affected by any “pathology.” Finally, she testified as to the developmental risks that are created when an abusive parent obtains sole custody of a child. On cross examination, Dr. Romero acknowledged that there were limitations to her opinion, including that she was not able to do an in-person evaluation and that she was unable to spend time alone with S.L.C.,and explained that they were due to the need to respond to the “emergency situation” presented by Lazaro’s flight from Colchester’s alleged abuse and the COVID-19 lockdown measures in place at the time of her examination.

 

 

The district court issued a five-page order the day after the trial concluded. The order begins by noting that it was undisputed that Lazaro’s removal of S.L.C. from Spain was unlawful under the Convention and that S.L.C.’s habitual residence (not challenged on appeal) was Spain and Lazaro had not presented clear and convincing evidence that returning S.L.C. to Colchester’s custody in Spain would subject her to a grave risk of physical or psychological harm. The Court ordered that S.L.C. be returned to Spain, provided that Colchester must facilitate “daily electronic communications” between S.L.C. and Lazaro, and that Lazaro be permitted supervised visits with S.L.C., limited to two days per month. The district court’s order did not discuss any of the testimony or evidence regarding Colchester’s alleged abuse. In lieu of setting forth its own findings of fact, the order stated that the court “adopts and incorporates paragraphs one through ten and thirteen of Mr. Colchester’s proposed findings of fact and conclusions of law.” Colchester’s ¶ 10 did not address any of the evidence Lazaro presented during the trial. Instead, ¶ 10 stated that “[m]any of the allegations of domestic violence and ‘drug trafficking’ that Ms. Lazaro has raised to attempt to use this ‘grave risk’ exception ... were raised and rejected” in prior U.S. and Spanish courts. The only three paragraphs drafted by the court itself did not address the substance of Lazaro’s grave risk defense.

 

Lazaro’s allegations that Colchester had abused both S.L.C. and herself formed the core of her Article 13(b) defense that returning S.L.C. to live with Colchester in Spain would subject S.L.C. to a grave risk of physical or psychological harm. Lazaro therefore argued to the district court at the pre-trial conference that credible testimony from a psychological expert who had examined S.L.C. would be essential to her case, and she sought an order permitting the necessary examination. The district court nonetheless denied her application, apparently because Lazaro could put on Dr. Romero, a Spanish psychologist who had interviewed S.L.C. over videoconference and through an interpreter for 90-minutes, even though, as Lazaro argued, Dr. Romero’s brief interview was no substitute for an in-depth interview by a psychological expert. (The court also rejected Lazaro’s offer for the judge to hear from S.L.C. herself, either on the stand or in camera and ex parte.) But after the trial, the district court indicated that it viewed Dr. Romero’s testimony as not credible because her opinion was based on an inadequate examination, the very reason Lazaro had sought a new exam before trial. The court subsequently held that Lazaro had failed to present clear and convincing evidence to establish her Article 13(b) defense.

 

Lazaro argued on appeal that the district court’s refusal to permit an in-depth psychological examination rendered the bench trial unfair. The Ninth Circuit agreed. It noted that Psychological evidence is particularly important in cases like this one, where the respondent (usually the mother) alleges that she fled with her children because the petitioner (usually the father) had abused her and/or her children. In these cases, psychological evidence can be important both because it can help the court determine whether the alleged abuse occurred and because it can aid the court in assessing the effect any abuse had on the child’s psychological health. Courts hearing Convention petitions thus routinely grant requests to order psychological examinations of children and credit testimony of psychological experts. The Seventh Circuit held in Khan v. Fatima that it was reversible error for a district court to refuse a respondent mother’s request for a psychological evaluation of her child where there was credible evidence that the petitioning father had physically and psychologically abused her in the child’s presence. 680 F.3d at 787–88. “The failure to allow psychological evidence,” along with inadequate findings of fact, made “the evidentiary hearing ... inadequate.”.

 

The Court held that as a threshold matter, the district court did not provide a reasoned decision when it denied Lazaro’s application for a psychological examination of S.L.C. The district court’s brief remarks were just one-sentence questions during argument, and when the court announced its decision, it provided no reasons. It impliedly misstated the record, by saying that “[w]e’re going to have no more discovery” when no discovery at all had yet taken place in this action. The transcript reflects no discussion of whether the parties could conduct limited discovery before an expedited trial, whether Lazaro’s proposed expert could conduct a psychological examination in the time allotted, or whether Colchester was entitled to his delayed request for expedition. It held that the district court’s wholesale denial of discovery in general and of the psychological examination in particular was unreasonable. This alone would suffice for remand. Moreover, it would have been unfair for the district court to first refuse the exam because Dr. Romero had already examined S.L.C. but later conclude that Dr. Romero’s examination was too brief to be reliable and that her testimony should never have been admitted because her opinion was based on an inadequate examination. Together, these rulings rendered the bench trial fundamentally unfair. This error was further compounded by the district court’s peremptory refusal to permit S.L.C. to testify herself. In effect, the district court’s rulings made it practically impossible for Lazaro to make out her case. Finally, the district court’s abuse of discretion in denying Lazaro’s application for a meaningful psychological examination of S.L.C. resulted in actual and substantial prejudice to Lazaro, since there is a reasonable probability that ordering the exam would have changed the result at trial. The court’s denial of that examination therefore constituted reversible error.

 

The panel also found the district court erred by failing to make findings of fact adequate to support its order returning the child to Spain. The only findings of fact supporting the post-trial return order were those portions of the petitioner’s proposed findings of fact that the district court simply adopted by reference. But the petitioner’s proposed findings were entirely conclusory and failed to engage with any of the evidence or testimony adduced at trial. Federal Rule of Civil Procedure 52 demands more. Reversal was warranted because, “[a]s a consequence [of the omitted findings], there was  no way of knowing whether the district court’s decision in favor of [Colchester] on [Lazaro’s Article 13(b) defense] was based on resolution of the determinative facts in [his] favor; or whether the court erroneously concluded that [the alleged abuse] could, under no circumstances have ... implications” for Lazaro’s grave risk claim. The district court failed to comply with Fed. R. Civ. P. 52(a), because the order below did not resolve the factual disputes necessary to support its legal conclusions.

 

Harm v. Lake-Harm, --- F.4th, ---- 2021 WL 4900305 (5th Cir., 2021) [Ireland][Habitual Residence][Petition granted] [Standard of Review]

 

In Harm v. Lake-Harm, --- F.4th, ---- 2021 WL 4900305 (5^th Cir., 2021) the Fifth Circuit affirmed an order of the district court which concluded that the residence of the child in Ireland was only transitory and held that the district court correctly applied the totality-of-the-circumstances” analysis in determining the child’s habitual residence, in accordance with the United States Supreme Court’s most recent precedent on the Hague Convention in Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 726, 206 L.Ed.2d 9 (2020).

 

Petitioner-Appellant Christopher Ryan Harm was a citizen of the United Kingdom and Northern Ireland, currently residing in the latter. Respondent-Appellee Meschiya Rachel Lake-Harm was a citizen of the United States, currently living in New Orleans, Louisiana. Mr. Harm alleged that their three-year-old child, SLH, was abducted by Ms. Lake-Harm from Ireland on May 21, 2019, when SLH was between one and two years old.

 

Ms. Lake-Harm was a professional musician. She met Mr. Harm while she was performing. At that time, Mr. Harm was living in Kilkenny, Ireland, and Ms. Lake-Harm was living in New Orleans. They both moved to New Orleans in November 2016 and were married in Mississippi that December. SLH was born in New Orleans on January 15, 2017. Because Ms. Lake-Harm frequently performed in Europe and because of “the political climate in the United States,” she and Mr. Harm discussed setting up and maintaining a “home base” in Ireland for long enough that Ms. Lake-Harm could obtain European Union residency. (The couple had also become concerned about crime in New Orleans after a drug addict broke into their van and left a used hypodermic needle under SLH’s car seat.) Both parents also wanted to give SLH the opportunity of living in the European Union and ultimately attending college there in the future if she so desired. Ms. Lake-Harm was interviewed by Offbeat Magazine, during which she explained that she could only live in New Orleans if she elected to live in the United States, but that she wanted to move to Europe so that SLH would have both United States and Irish passports.

 

The couple began to experience marital difficulties in February of 2018, after which they slept in separate bedrooms. Ms. Lake-Harm kept traveling to perform, however, and did not cease her efforts to obtain European Union residency for herself and SLH. In May of that year, after spending time in New Orleans to sell some of her belongings, Ms. Lake-Harm took SLH to Amsterdam. Along with Mr. Harm, she and SLH traveled in the Netherlands, Switzerland, and Denmark for her performances. In June 2018, Ms. Lake-Harm learned of sexual assault allegations against Mr. Harm, and the couple’s relationship further deteriorated. In July, two months after their arrival in Europe, the family moved to Ireland and rented the Woodview House outside of Cork, but Mr. Harm and Ms. Lake-Harm continued to sleep in separate bedrooms. Ms. Lake-Harm applied for and obtained an international driver’s license. She deposited her funds in an Irish bank account and closed her United States bank account. She then legally added “Harm” to her last name, even though her marriage continued to crumble. When Ms. Lake-Harm entered Ireland, she informed a customs official that Ireland was her new home. She also shared this information on her social media accounts. In March 2019, Ms. Lake-Harm moved out of the Woodview House and into a house in Wexford, Ireland, approximately three hours away from the Woodview House, where Mr. Harm still lived. Following Ms. Lake-Harm’s move to Wexford, the couple attempted to share custody of SLH. An equal division was not often followed, however, because of Ms. Lake-Harm’s frequent international travel, in which she would take SLH along. During that time, Ms. Lake-Harm expressed that Ireland was her “home base of operations.” The family traveled together to Italy in August of that year, but later Ms. Lake-Harm alone took SLH to the United States. Ms. Lake-Harm and SLH then traveled to Germany, where Mr. Harm was working at the time. While on that trip, the couple got into a dispute during which Mr. Harm attempted to take SLH from Ms. Lake-Harm forcibly. Ms. Lake-Harm became afraid: She told Mr. Harm that she wanted a divorce and that she could no longer co-parent with him. She consulted legal counsel in Ireland but was told that she could not file for divorce there because she was not a legal resident of Ireland. Ms. Lake-Harm continued to travel with SLH, but no longer with Mr. Harm. However, Ms. Lake-Harm went to Greece in November and left SLH with Mr. Harm for six days. That was the first time SLH had been cared for overnight by Mr. Harm alone. When Ms. Lake-Harm traveled to Moscow, she again left SLH with Mr. Harm. But, after returning, Ms. Lake-Harm learned that Mr. Harm had been bathing naked with SLH and had taught her words for the male genitalia. After that, Ms. Lake-Harm no longer felt comfortable leaving SLH alone with Mr. Harm for more than a few hours at a time. That December, after receiving permission from Mr. Harm, Ms. Lake-Harm took SLH to New Orleans to visit family and friends and to perform there. Ms. Lake-Harm and SLH returned to Ireland in mid-January 2019. SLH celebrated her January birthday in Ireland, but with no friends in attendance. (She had celebrated the same birthday with parties in New Orleans and Tucson prior to returning to Ireland.) With Mr. Harm’s permission, Ms. Lake-Harm continued to travel throughout Europe, accompanied by SLH. During that extended period of travel, SLH was in Ireland, together with Ms. Lake-Harm, for one-and-a-half weeks at the most. Early in May of 2019, Ms. Lake-Harm began planning the above-noted move from Woodview House to Wexford, Ireland. Then, on May 21, Ms. Lake-Harm took SLH to the United States, originally with Mr. Lake’s permission, planning to go to Tucson, Arizona and visit Ms. Lake-Harm’s parents there. However, the mother and child ended up traveling to New Orleans instead.

 

 

Mr. Harm then initiated the action in the Eastern District of Louisiana, claiming that Ms. Lake-Harm had abducted SLH, in violation of the Hague Convention. The district court ultimately held that SLH’s habitual residence was the United States, and that her residence in Ireland was transitory. In its oral opinion and order, the district court considered testimony and arguments from both sides. The court based its finding that SLH’s residence in Ireland was transitory partially on the fact that Mr. Harm had consented to all of SLH’s travels, including the “abduction” in May 2019. That consent, the district court noted, was buttressed by Mr. Harm’s knowledge that Ms. Lake-Harm maintained substantial ties to New Orleans and that SLH had been born there. The court also recognized that the couple had set up a base in Europe. The trial court then discussed in detail, month-by-month, Ms. Lake-Harm’s world-wide travel, almost always accompanied by SLH. The court noted that in every instance of travel, Mr. Harm consented to SLH going along with Ms. Lake-Harm. Testimony also established that, while in Ireland, SLH did not meet any friends or attend school. The court further noted that, when SLH was in Ireland, she was never there “for more than a couple of weeks” before again traveling with Ms. Lake-Harm. The court concluded that SLH’s ties to Ireland were “extremely limited.” The district court further found that Mr. Harm had not attempted to be in SLH’s life very much. The court also noted the instability in the couple’s marriage. Finally, the court summed up its holding by stating: “And now to say that [the couple] established habitual residence as a married couple and the parents of a minor child in Ireland under those circumstances would be absurd.”

 

The Fifth Circuit pointed out that the habitual-residence determination thus presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court. “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”  It found that while reasonable minds may disagree with the district court’s conclusion, that court made a plausible finding in light of the record as a whole, which it would not set it aside as clearly erroneous. It held that the district court’s determinations were plausible in light of the record as a whole. Despite the increase of SLH’s parents’ center of gravity in Ireland, it was obliged to follow the Supreme Court’s precedent in Hague Convention cases such as this one, keeping in mind the trial court’s unique position vis-á-vis the testimony of the witnesses and the other evidence, and conclude that it did not commit clear error in determining and weighing the operative facts of this case. Because that court determined, on the basis of all of the trial evidence, that SLH’s presence in Ireland was transitory, the United States remained her habitual residence and its law governed this case.

Recent District Court Hague Convention District Court Cases - Philanthrope v Jean, 2021 Westlaw 4896266 (S.D Florida, 2021)

Philanthrope v Jean, 2021 Westlaw 4896266 (S.D Florida, 2021)
[Chile] [Petition granted] [Well Settled defense not established]

Saada v Golan, Not Reported in Fed. Rptr., 2021 WL 4824129 (2d Cir.,2021)[Italy][Federal and State Judicial Remedies][ Rule 60(b) motion][Newly discovered evidence][Denied]

 

In Saada v Golan, Not Reported in Fed. Rptr., 2021 WL 4824129 (2d Cir.,2021) Respondent Narkis Aliza Golan, B.A.S.’s mother, appealed the District Court’s March 29, 2021 order and accompanying judgment denying her Rule 60(b) motion for relief from the District Court’s earlier May 5, 2020 order directing that B.A.S. be returned to Italy. Seeing no error in the District Court’s denial of Golan’s Rule 60(b) motion, the Court affirmed the March 29, 2021 order and the accompanying April 6, 2021 judgment.

 

 In July 2018, Golan, a U.S. citizen, and B.A.S. (then two years old) travelled to the United States from Milan, Italy, where the two of them, along with Petitioner Isacco Jacky Saada, B.A.S.’s father and an Italian national, had been living. Though Golan and B.A.S., who had been born in Italy, were originally scheduled to return to Italy the next month, Golan decided to stay in the United States and move to a confidential domestic violence shelter in New York. In September 2018, Saada commenced this case by filing a petition before the District Court seeking B.A.S.’s return to Italy pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.  After a nine-day bench trial, the District Court concluded that B.A.S.’s “habitual residence was Italy. See Saada v. Golan, No. 18-CV-5292 (AMD) (LB), 2019 WL 1317868, at *15 (E.D.N.Y. Mar. 22, 2019) (“Saada I”), aff’d in part, vacated in part, and remanded, 930 F.3d 533 (2d Cir. 2019) (“Saada II”). While the District Court concluded that returning B.A.S. to Italy would expose him to a “grave risk of harm,” the psychological harm accompanying exposure to domestic violence perpetrated by Saada against Golan, it was satisfied that a series of “undertakings” by Saada, including his promises to stay away from Golan after she and B.A.S. returned to Italy and to visit B.A.S. only with Golan’s consent, were sufficient to “ameliorate the grave risk of harm to B.A.S. upon his repatriation to Italy.” The District Court ordered that B.A.S. be returned to Italy. On appeal, the Second Circuit agreed with the District Court’s habitual-residence determination, but concluded that the District Court erred in granting Saada’s petition because “the most important protective measures it imposed [we]re unenforceable and not otherwise accompanied by sufficient guarantees of performance.” Saada II, 930 F.3d at 537. It remanded the case and instructed the District Court to conduct further proceedings to determine the availability of alternative ameliorative measures.

 

The parties subsequently sought, and were granted, an Italian court order that, inter alia, required Saada to stay away from Golan, restricted Saada’s access to B.A.S., and ordered Saada to undergo certain psychological evaluations and counseling. In light of this development, on remand, the District Court again granted Saada’s petition, and also ordered Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their return to Italy. Saada v. Golan, No. 18-CV-5292 (AMD) (SMG), 2020 WL 2128867, at *5 (E.D.N.Y. May 5, 2020) (“Saada III”). On appeal, the Second Circuit affirmed the District Court’s judgment. Saada v. Golan, 833 F. App’x 829. 834 (2d Cir. 2020) (summary order) (“Saada IV”).

 

Soon after the Court issued a mandate returning this case to the District Court, on January 25, 2021, Golan filed a Rule 60(b) motion for relief from judgment, arguing that “newly discovered evidence” justified reconsideration of the Court’s order in Saada III. See Fed. R. Civ. P. 60(b)(2). Golan offered what she claimed was the transcript of a November 2020 phone call between Saada, his father, and a rabbi, and to which Golan was surreptitiously listening, in which Saada purportedly told the rabbi that he did not trust Golan as a mother because “she bring[s] men[ ] to her place to have sex with her” and that he was in possession of a “picture of [B.A.S.] with different men[ ].” When asked by the rabbi how he knew what Golan was doing in her apartment, Saada responded, “I cannot tell you how I know, but I have proof[ ]” and that “[t]he lawyers who [inaudible] investigators ... so I know.” Golan argued that Saada’s November 2020 statements demonstrated that he violated a “court order.”  Golan argued that Saada’s violation of the October 16, 2018 order cast doubt on Saada’s willingness to abide by Italian court orders. Saada explained that the “investigators” he referenced during the November 2020 phone call were hired by his counsel after a man, one Kfir Hazan, contacted Saada alleging that he had been romantically involved with Golan, that she was engaging in “high-risk” behavior around B.A.S., and that he now wished to offer damaging information about her. Saada’s attorneys likewise represented to the court that they had hired an investigator for the limited purpose of ensuring that B.A.S. was safe, and that the investigator had not disclosed the respondent’s address to Saada or his attorneys.

 

The District Court denied Golan’s motion. It declined to disturb its prior order on the basis of “vague statements,” and in light of “no other evidence to support [Golan’s] claim that [Saada] tried to find out where she lived during the pendency of the petition.” Saada V, 2021 WL 1176372, at *5. The District Court also pointed out that evidence demonstrated that Golan had sent Saada her address as early as April 2020 so that he could send things to B.A.S.  It further concluded that Saada did not violate the District Court’s October 16, 2018 directive because it was Saada’s counsel that engaged the investigator.  Ultimately, the District Court concluded that “[k]nowledge of the limited investigation that did take place would not have changed the outcome” of its order granting the petition because “it does not establish that [Saada] has violated an order of this Court or that the protections put in place in Italy will be insufficient ....”. Golan appealed the District Court’s denial of her Rule 60(b) motion.

 

The Second Circuit affirmed. It pointed out that it reviews a denial of Rule 60(b) relief for abuse of discretion. United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). Rule 60(b) relief “is generally not favored” and granted only upon a showing of “exceptional circumstances.” The burden of proof rests on the party seeking the relief, and when the existence of “newly discovered evidence” forms the basis of a motion, the movant must demonstrate that (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.

 

The Second Circuit noted that Golan argued that the District Court’s principal error lie in its refusal to hold an evidentiary hearing in response to her Rule 60(b) motion. It held that in the Rule 60(b) context, a party is not automatically entitled to an evidentiary hearing. As a general matter, in the Rule 60(b) context, evidentiary hearings should be held to decide disputes concerning “material issues of fact.” Flaks v. Koegel, 504 F.2d 702, 712 (2d Cir. 1974); cf. Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (noting that “[i]f material facts are in dispute” concerning an ineffective assistance of counsel claim, a court should usually hold an evidentiary hearing). It reviews a district court’s refusal to grant a hearing for abuse of discretion, 219 Ingersol St., 1999 WL 822492, at *2 (citing United States v. 8136 S. Dobson St., Chicago, Ill., 125 F.3d 1076, 1086 (7th Cir. 1997)); see In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (describing the abuse-of-discretion standard), and found no such abuse here. The District Court concluded that had it known of the “limited investigation” prior to its granting of Saada’s petition, this “would not have changed the outcome” and it still would have granted the petition. Saada V, 2021 WL 1176372, at *5.

 

Recent Hague Convention District Court Cases - Pflucker v Warms, 2021 WL 4593824 ( M.D. Florida, 2021) [Peru][Petition denied][Habitual Residence][Consent and acquiescence defense]

 Pflucker v Warms, 2021 WL 4593824 ( M.D. Florida, 2021) 
[Peru][Petition denied][Habitual Residence][Consent and acquiescence defense]

Recent Hague Convention District Court Cases - Oliva v Espinoza, 2021 WL 4554579 ( S.D. California, 2021) [Mexico][Petition denied][Habitual residence][ Wrongful retention]

 

Oliva v Espinoza,  2021 WL 4554579 ( S.D. California, 2021)
[Mexico][Petition denied][Habitual residence][ Wrongful retention]

Recent Hague Convention District Court Cases - Bhattacharjee v. Craig., 2021 WL 4504376 ( E.D. Missouri, 2021) [Singapore][Habitual Residence][Mature Child Defense][Petition granted]

 

Bhattacharjee v. Craig., 2021 WL 4504376 ( E.D. Missouri, 2021)

[Singapore][Habitual Residence][Mature Child Defense][Petition granted]

Douglas v Douglas, 2021 WL 4286555 (6th Cir., 2021)[Australia] [Habitual Residence] [Summary Judgment] [Petition denied]

 

In Douglas v Douglas, 2021 WL 4286555 (6th Cir., 2021) in late October 2017, Heath, an Australian man, contacted Nancy, an American woman, on a dating website. Heath lived in Curlewis, New South Wales (NSW), Australia, and Nancy lived in Boston, Massachusetts. Heath and Nancy began communicating via telephone in November 2017. The same month, the parties began planning for Nancy to visit Heath. Heath purchased a roundtrip ticket for Nancy to fly to Australia for “[a] few weeks” beginning in late December. Nancy left her associate-editor job in Boston, where she had worked since August 2016. The same company hired her to work remotely as a freelance editor. Nancy arrived in Australia on December 21, 2017. Upon her arrival, Heath gave her an American Express card with $7,000 and told her, “[L]ook, any time you want to go back, use that, go home, you don’t have to stay.” Shortly after Christmas, Heath proposed marriage, and Nancy accepted. The parties were married on February 10, 2018. Nancy moved into Heath’s home, and within a month, she became pregnant. The couple began arguing soon after their marriage. The arguments occurred “[e]very few days” and were “[s]evere.” Nancy testified that the “themes” of these arguments were “[t]hat [she] was disrespecting [Heath] and not submitting to [him].” Despite the parties’ marital strife, they attempted to build a life together in Australia. On June 6, 2018, Heath paid $7,000 to the Australian Department of Home Affairs to sponsor Nancy’s Permanent Partner Visa. Nancy obtained a debit card linked to Heath’s National Australian Bank account. On June 29, 2018, the parties signed a twelve-month lease for an apartment in Merewether, NSW. By October 2018, the parties began seeking marriage counseling. At the end of October, Heath told Nancy that he “[couldn’t] handle this” and stayed at a motel for the night.. Around the same time, he told Nancy to “get the F out” of the apartment. He then ran after her and she returned, telling him that she wanted a divorce. However, the couple did not divorce at that time. Nancy and Heath’s son, J.D., was born in Australia on November 4, 2018. Nancy’s mother flew to Australia for J.D.’s birth. On the morning of November 7, 2018, Heath and Nancy got into an argument. When Heath returned home from work, he told Nancy to “get out” of the apartment... Heath and Nancy had not lived together since November 7, 2018. On November 21, 2018, Nancy sent an e-mail to Heath stating: The marriage is over. I would like to return to America with [J.D.] Will you agree to this and sign his [Australian-passport application]? There can still be ways to see and spend time with [J.D.] .... This email confirms that we have officially separated as of today, 21/11/18. After separating from Heath, Nancy applied for child support. On December 3, 2018, a law firm representing Nancy wrote a letter to Heath informing him that Nancy “wishes to return to Michigan ... to live with her parents ... and seeks to also relocate [J.D.’s] residence to the United States.” On December 7, 2018, Heath sent Nancy an e-mail stating, “I understand that you really do not want me in your life anymore, and this really hurts.” On December 9, 2018, Heath wrote Nancy another e-mail stating, “you obviously aren’t coming back to me.”. Sometime between December 2018 and January 2019, Heath left the parties’ Merewether apartment and moved over three hours away, back to Curlewis. On December 13, 2018, Heath commenced a custody proceeding in federal circuit court in Australia.   On December 15, 2018, Nancy wrote a letter to Heath: please sign [J.D.’s Australian-passport application] so I can go somewhere where I have support and people I know and a free place to stay. I need the space. If you want, I can show you my return ticket. if you really love me, you’ll let me go. As it turns out, Nancy had not purchased a return ticket to Australia, and Heath did not ask to see a return ticket. On December 24, 2018, Heath responded: OK nancy, Merry Christmas. Please take care of our little man.. On the back of his letter, Heath wrote: No conditions. No expectations. I will provide, love heath xo. Heath signed J.D.’s Australian-passport application. Also on December 24, 2018, Heath dismissed the custody proceeding he initiated earlier that month. In January 2019, Heath paid a child-support assessment. On January 11, 2019, Heath wrote a letter to Nancy stating: You are free to go home now. I am sorry for not getting these through to you earlier, but maybe the timing is just right? I don’t know. I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing! Thanks for your patience with me as I learnt what it is to be a good Dad and friend. I have never had to sacrifice so much! Be blessed nancy!  On January 30, 2019, Heath signed a letter authorizing J.D. to travel with Nancy to the United States. The next month, Nancy unilaterally withdrew her Permanent-Partner-Visa application.

 

On February 13, 2019, Nancy and J.D. flew to the United States. Nancy ended Heath’s child-support assessments. Since their arrival, Nancy and J.D. lived with Nancy’s parents in Michigan. Nancy filed for divorce in September 2019 and served Heath with divorce papers in Australia on October 3, 2019.  Heath filed this petition for return of J.D. on May 14, 2020. Following discovery on the issue of J.D.’s habitual residence, Nancy filed a motion for summary judgment, arguing that there was no genuine dispute that J.D.’s habitual residence was the United States. The district court granted Nancy’s motion, concluding that immediately before the alleged wrongful retention, J.D.’s “habitual residence” was Michigan, not Australia. Heath appealed. 

The Sixth Circuit affirmed. It reviewed de novo a grant of summary judgment, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor. The Court observed that child’s habitual residence depends on the totality of the circumstances specific to the case.” Monasky, 140 S. Ct. at 723. “A person can have only one habitual residence.” Simcox v. Simcox, 511 F.3d 594, 602 (6th Cir. 2007). In Monasky, the Supreme Court articulated several principles for determining habitual residence. The term “habitual” “suggest[s] a fact-sensitive inquiry, not a categorical one.” Monasky, 140 S. Ct. at 726. Habitual residence does not turn on the existence of an actual agreement or on any other categorical requirement. “The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” A child’s residence in a particular country can only be considered “habitual” when “her residence there is more than transitory.” Id. “What makes a child’s residence ‘habitual’ is ... ‘some degree of integration by the child in a social and family environment.’ ” Moreover, [b]ecause locating a child’s home is a fact-driven inquiry, courts must be “sensitive to the unique circumstances of the case and informed by common sense.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence. But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus. And “[a]n infant’s ‘mere physical presence’ ... is not a dispositive indicator of an infant’s habitual residence[,] ... [b]ut a wide range of facts[,] ... including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ” 

 

Heath’s complaint alleged that Nancy’s retention of J.D. became wrongful on October 3, 2019. Heath did not challenge the wrongful-retention date on appeal. The Court noted that one factor informing a young child’s habitual residence is the caregiving parents’ “intentions and circumstances.” Monasky, 140 S. Ct. at 727. Some evidence suggests that before J.D. was born, the parties may have intended to raise him in Australia: Nancy obtained a debit card linked to Heath’s National Australian Bank account; the parties signed a twelve-month lease for an apartment in Merewether; Nancy obtained an NSW driver’s license; the parties contemplated a ten-year plan to live in Australia; and Nancy applied for a Permanent Partner Visa. 

Other evidence, however, more strongly indicated that by the wrongful-retention date, the parties intended for J.D. to live in the United States. In October 2018, the parties got into an argument in which Heath told Nancy to “get the F out” of their apartment and Nancy told Heath that she wanted a divorce. Three days after J.D. was born, Heath exiled Nancy from the apartment again. The parties lived separately after that point. On December 3, 2018, a law firm representing Nancy informed Heath that Nancy wished to return to Michigan and relocate J.D.’s residence there. Heath’s e-mails from December 7 and 9, 2018 stated, “I understand that you really do not want me in your life anymore” and “you obviously aren’t coming back to me.” On December 24, 2018, in response to Nancy’s request for Heath to sign J.D.’s passport application, Heath replied, “OK nancy, ... Please take care of our little man.” On the back of the letter, Heath wrote, “No conditions / No expectations.” On the same day, Heath signed J.D.’s passport application and dismissed the custody proceeding he had initiated eleven days earlier. On January 11, 2019, Heath sent a letter to Nancy stating, “You are free to go home now. ... I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing!” In a letter dated January 30, 2019, Heath authorized J.D. to travel with Nancy to the United States.

 

Heath argued that he wrote “No conditions / No expectations” “after Nancy’s promise to return,” and that this context creates an issue of fact as to the parties’ intent. Appellant’s Br. at 32–33. Heath testified that “No conditions / No expectations” meant he “didn’t want to put any expectation or conditions on her travel if she needed to go anywhere to see friends [or] family,” he “[did not] want to be a controlling husband[,] and [he did not] want to hold her back if she need[ed] to go anywhere.” R. 35-2, PID 274. Because we must draw all reasonable inferences in Heath’s favor, we take this testimony as true. See Fisher, 951 F.3d at 416. But even accepting this interpretation of the December 24th correspondence, other evidence in the record, including Heath’s January letters and the parties’ conduct, establish that by the wrongful-retention date, the parties intended for J.D. to live in the United States.

 

Another relevant consideration is the “degree of integration by the child in a social and family environment.” Monasky, 140 S. Ct. at 726 (quotation omitted). When Heath directed Nancy to leave their apartment, J.D. was three days old. For three months afterward, Nancy, her mother, and J.D. moved between rentals and other temporary housing. Heath moved over three hours away from the Merewether apartment. J.D. was not meaningfully integrated in any social or family environment in Australia; his residence there was merely transitory. In contrast, J.D. had lived in Michigan with his mother and maternal grandparents for over seven months by the wrongful-retention date. Thus, as of October 3, 2019, J.D. was “at home” in Michigan, not Australia.

 

Recent Hague Convention District Court Cases - Dumitrascu v. Dumitrascu, 2021 WL 4197378 ( D. Colorado, 2021) [Romania] [Habitual residence][Petition granted]

 Dumitrascu v. Dumitrascu, 2021 WL 4197378 ( D. Colorado, 2021)
[Romania] [Habitual residence][Petition granted]  

In re ICJ--- F.4th ----, 2021 WL 4187853 (9th Cir.,2021)[France][Habitual Residence] [Grave risk of harm] [Undertakings]

 

In re ICJ--- F.4th ----, 2021 WL 4187853 (9^th Cir.,2021) Kerry Jones, a British citizen, and his wife Cassandra Fairfield, a citizen of the United States, married and lived in France. In 2018, they had a daughter, ICJ, who resided with them, or one of them, in France until October, 2020. Then, after marital problems arose and Jones filed for divorce in France, Fairfield took ICJ to the United States, without the assent of Jones. Jones initiated this litigation under the Hague Convention. The Ninth Circuit held that the district court erred in denying Jones’s petition for ICJ’s return to France. It vacated the district court’s decision and remanded for further proceedings.

 

In an effort to expedite these proceedings in the district court, the parties agreed during a video hearing to present this case through documentary evidence rather than by calling witnesses. The documentary evidence included declarations by the parties which contradicted each other in numerous and material ways. The district court did not expressly resolve those material factual disputes.

 

          Jones and Fairfield met online in 2013. At that time, Jones was fifty years old, a British citizen living in France; Fairfield was an eighteen-year-old high school student in the United States. Fairfield visited Jones several times in France. The couple eventually married in 2017. Their daughter ICJ was born in France in August 2018. In January 2020, Jones and Fairfield began talking about separating. The couple’s marital discord intensified when, in March 2020, Jones began working full time from their home due to the COVID-19 pandemic. According to Fairfield: Soon after Jones began working from home, she discovered him viewing child pornography. On another occasion, she caught Jones watching child pornography while ICJ was in the room. Fairfield further discovered that Jones had downloaded hundreds of files of child pornography. Jones denied all of this. He did, however, acknowledge his prior Texas conviction for possessing child pornography. Based on that conviction, the United States removed Jones, a British citizen, and has precluded him from returning. Fairfield asserted Jones never told her about this conviction and she only discovered it sometime after the couple separated. Jones contended Fairfield has known all along about his prior conviction. According to Fairfield, after she confronted Jones about his child pornography addiction, he “became aggressive” toward her throwing a glass at her that shattered near Fairfield and their child, tossing the child’s stroller out a window, flipping a table over, holding Fairfield down and screaming that she made him crazy and violent, and on one occasion raping her. Jones acknowledges throwing the glass, but denied that it shattered near either Fairfield or ICJ. He denied Fairfield’s other accusations of abuse and rape. Between April 24 and May 1, 2020, while the family was still living together, Jones numerous times threatened suicide if Fairfield left him. On May 1, 2020, after Fairfield asked Jones to move to another of their houses, Jones hung himself from a tree outside their home. He survived after Fairfield and several neighbors cut him down. While Jones spent two days recovering in the hospital, Fairfield and ICJ moved to another of the family’s properties. After Jones recovered from the suicide attempt, he “often” visited Fairfield and ICJ. With Jones’s permission, Fairfield took ICJ to visit Fairfield’s family in the United States in June 2020. When Fairfield and ICJ returned to France, in mid-July, they lived in a hotel and then at an Airbnb rental. During this time, Jones visited ICJ frequently and, with Fairfield’s consent, Jones kept ICJ overnight on several occasions. In late July 2020, Jones showed Fairfield a letter he threatened to send to her former employer in Washington, as well as the Spokane newspaper and the Washington State Patrol, accusing Fairfield of being a pedophile and mentally ill. Jones contended this was an attempt to convince Fairfield to be reasonable about the divorce proceedings. According to Fairfield, when she met Jones at a park on July 30 so Jones could play with ICJ, Jones threatened to blackmail Fairfield in order to take custody of ICJ.

 

Jones then filed for divorce in France and Fairfield took ICJ to northern France, about five hours away. Both Jones and Fairfield hired divorce lawyers; the French courts set a hearing in the divorce proceeding for November 17, 2020. According to Fairfield, in mid-August, Jones cut off all financial support for her and ICJ by draining the couple’s joint bank account. After that, Fairfield contended that she was forced to live with ICJ in homeless shelters. While Jones did not dispute that Fairfield and ICJ lived for a period of time in homeless shelters, he denied that he ever cut off Fairfield and ICJ financially and further asserts that Fairfield and ICJ could have lived at one of the couple’s properties. In mid-October, at her attorney’s urging, Fairfield revealed her and ICJ’s location. While negotiations for visitation were ongoing and less than three weeks before the first hearing scheduled in the French divorce proceedings, Fairfield left France with ICJ on October 29, 2020. At that time, it had been three months since Jones had seen ICJ, and two and one-half months since, according to Fairfield, Jones had cut off any financial support. Fairfield filed for divorce in Washington State on November 17, 2020. Jones initiated this litigation in the Federal District Court for the Eastern District of Washington under the Hague Convention on December 29, 2020, seeking ICJ’s return to France so French courts could determine custody of ICJ..

 

          The Ninth Circuit observed that in reviewing a district court’s decision in a Hague Convention case, “we review the district court’s factual determinations for clear error, and the district court’s application of the Convention to those facts de novo.” Flores Castro v. Hernandez Renteria, 971 F.3d 882, 886 (9th Cir. 2020). We review for an abuse of discretion the district court’s determination of whether to return a child to her country of habitual residence in the face of a grave risk. See Radu, ––– F.4th at ––––, 2021 WL 3883013, at *3.”

 

 

The Ninth Circuit held that there were three legal errors in the district court’s rulings that required it to vacate the district court’s decision and remand: (1) Assuming Jones cut off financial support for ICJ, the district court erred as a matter of law in determining that was sufficient to establish that Jones was not actually exercising his custody rights to ICJ because he cut off financial support for the child, and clearly and unequivocally abandoned the child, the showing required for deeming a parent not to be exercising custody rights. (2) The district court erred in declining to return ICJ to France based on a “grave risk” defense, without first considering whether there are alternative remedies available to protect the child and permit her return to France for the period of time necessary for French courts to make the custody determination. (3) The district court erred in relying in part on the pandemic to deny Jones’s petition because the record did not include any evidence addressing what specific pandemic related risk returning ICJ to France would present.

 

The Ninth Circuit held that the district court correctly determined that ICJ’s country of habitual residence was France, French law provided both Jones and Fairfield with the right to custody of ICJ, and Fairfield’s leaving France with ICJ breached Jones’s custody rights. Nevertheless, the district court ruled that Fairfield’s removing ICJ from France was not “wrongful” because at the time of removal Jones was not actually exercising his custody rights, in light of his failure to support ICJ financially. That was error. Federal circuit courts in the United States have consistently required a showing that a parent has clearly and unequivocally abandoned a child before ruling that that parent is not actually exercising his custody rights. The parties here agreed that this is the relevant legal standard. In applying this standard, courts “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Friedrich, 78 F.3d at 1065 (6th Cir.). Once [a court] determines that the parent exercised custody rights in any manner, the court should stop—completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of the federal courts. Jones, as the petitioning parent, had the initial burden of proving by a preponderance of the evidence that he was actually exercising his custody rights to ICJ at the time Fairfield removed the child from France. See 22 U.S.C. § 9003(e)(1). Jones’s burden, however, was “minimal,” Asvesta, 580 F.3d at 1018, and he clearly met it here. The record indicated that, after Jones and Fairfield separated in May 2020, Jones saw ICJ often, both before and after Fairfield took ICJ to visit Fairfield’s family in the United States. Jones kept ICJ overnight on several occasions, with Fairfield’s consent. Jones did not see ICJ after July 30, but it is undisputed that was because Fairfield took ICJ to northern France and did not reveal their whereabouts to Jones. Jones presented evidence, including text messages and emails, indicating that he frequently asked Fairfield to let him see ICJ, to no avail. When Fairfield revealed her location, in mid-October 2020, Jones attorney directed him not to try to see the child, while the divorce attorneys negotiated visitation. Because Jones made the required minimal showing that he was exercising his custody rights, the burden shifted to Fairfield, as the party opposing returning ICJ to France, to prove by a preponderance of the evidence that Jones was not actually exercising his custodial rights. Even accepting Fairfield’s disputed assertion that Jones cut off financial support to Fairfield and ICJ for two and one-half months, Fairfield had not shown that Jones clearly and unequivocally abandoned ICJ. The test Fairfield had to meet to show that Jones had clearly and unequivocally abandoned ICJ is “stringent.” Baxter, 423 F.3d at 370 (3d Cir.) (citing Friedrich, 78 F.3d at 1065–66 (6th Cir.)). Even assuming that Jones cut off Fairfield and ICJ financially for two and one-half months after Fairfield took ICJ to northern France, that was insufficient by itself to establish that Jones clearly and unequivocally abandoned ICJ, in light of Jones’s continuous efforts to see the child. Because that was the only reason advanced by the district court to support its abandonment ruling, the district court erred in concluding Jones was not exercising his custody rights at the end of October 2020, when Fairfield took ICJ to the United States. Contrary to the district court’s decision, then, Fairfield wrongfully removed ICJ from France.

 

In its alternative ruling, the district court held that Fairfield had established that one of those narrow exceptions—when return presents “a grave risk” of placing the child “in an intolerable situation,” H.C., Art. 13(b)—precludes returning ICJ to France. That ruling was inadequate because the district court never considered whether there are “alternative remedies” available that could permit returning ICJ to France while at the same time protecting her from harm. Radu, ––– F.4th at –––– – ––––, & –––– n.2, 2021 WL 3883013, at *3–4 & *3 n.2.

). Further, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” The question, then, “is not whether the child would face a risk of grave harm should she permanently reside in [France], but rather whether she would face such a risk while courts in [France] make a custody determination.” The Court remanded so the district court can consider the possibility that alternative remedies exist and could permit returning ICJ to France for a custody determination. This court addressed in detail the relevant considerations that may affect that determination and what information might be needed, and we identified resources available to aid the district court, including the United States State Department’s Office of Children’s Issues. See Radu, ––– F.4th at –––– – ––––, 2021 WL 3883013, at *4–6. Importantly, part of the analysis on remand should include consideration of whether any suggested conditions for ameliorating a grave risk to ICJ would be enforceable or present “sufficient guarantees of performance” in France. Walsh v. Walsh, 221 F.3d 204, 219 (1st Cir. 2000)

 

In refusing to return ICJ to France, the district court noted that “[t]he COVID-19 pandemic provides an additional layer of concern for the child to travel back to France.” It appeared from this brief statement that the district court implicitly decided that sending ICJ back to France during the pandemic presented a “grave risk” of “expos[ing] the child to physical ... harm,” H.C., 13(b). That was error because there was simply no evidence in the record addressing whether COVID-19 would present a “grave risk” to ICJ’s health if she returned to France.