Recent Hague Convention District Court Cases - Guzzo v Hansen, 2022 WL 3081159 (E.D. Missouri, 2022)

 [Italy][Habitual residence][Petition granted]

In Guzzo v Hansen, 2022 WL 3081159 (E.D. Missouri, 2022) the district court granted the fathers Complaint for Return. In a judgment dated May 4, 2021  the Spanish court awarded: (1) the parties joint parental authority; (2) Mother primary physical custody; and (3) Father progressive visitation. Additionally, the Custody Judgement provided: “Neither party may transfer [Child] outside the national territory without the express consent of the other or, failing that, judicial authorization.” On September 13, 2021, Mother and Child travelled to St. Charles, Missouri. Mother understood when she left Spain that she did not have the Spanish court’s permission to remove Child from the country as required by the Custody Judgment. Two days later, Mother emailed Father informing him they had moved. Father reported Child’s removal to the local authorities in Seville on September 17, 2021. Approximately one month later, he filed a request in Spanish court for changes to the Custody Judgment, as well as a formal request for Child’s return under the Hague Convention. After a hearing, at which Mother was not present but was represented by an attorney, the Spanish court determined that Mother’s “actions were contrary to law and illegal,” provisionally withdrew Mother’s custody rights, and granted Father exclusive custody. The Court found that prior to being brought to the United States, Child’s country of habitual residence was Spain. Mother claimed that returning Child to Spain would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. Mother argued that returning Child to Spain would cause him psychological harm because: (1) Child “does not wish to return to Spain and lacks any sufficient degree of accommodations there”; (2) Father “does not have a permanent home or stable, long-term employment in Spain”; (3) Mother “is unable to live or work in Spain because she is unable to secure the proper immigration status to do so”; and (4) return to Spain “would subject [Child] to … tumultuous custody proceedings[.]” The Court found Mother failed to prove by clear and convincing evidence that return to Spain will expose Child to a grave risk of harm.

 Second, she claimed that Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take his views into account. The Court found Mother failed to demonstrate that Child expressed a particularized objection to returning to Spain. He did not communicate dislike for Spain so much as a preference for the United States. Child complained about Spain’s weather and stated that there was “nothing to do there,” but he also reported that the home he shared with Mother was “awesome” and there were “a lot of things to do there.” Child’s general complaints about Spain did not suggest that “living in that country would be unacceptable.”

  The district court granted the fathers Complaint for Return. In a judgment dated May 4, 2021  the Spanish court awarded: (1) the parties joint parental authority; (2) Mother primary physical custody; and (3) Father progressive visitation. Additionally, the Custody Judgement provided: “Neither party may transfer [Child] outside the national territory without the express consent of the other or, failing that, judicial authorization.” On September 13, 2021, Mother and Child travelled to St. Charles, Missouri. Mother understood when she left Spain that she did not have the Spanish court’s permission to remove Child from the country as required by the Custody Judgment. Two days later, Mother emailed Father informing him they had moved. Father reported Child’s removal to the local authorities in Seville on September 17, 2021. Approximately one month later, he filed a request in Spanish court for changes to the Custody Judgment, as well as a formal request for Child’s return under the Hague Convention. After a hearing, at which Mother was not present but was represented by an attorney, the Spanish court determined that Mother’s “actions were contrary to law and illegal,” provisionally withdrew Mother’s custody rights, and granted Father exclusive custody. The Court found that prior to being brought to the United States, Child’s country of habitual residence was Spain. Mother claimed that returning Child to Spain would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. Mother argued that returning Child to Spain would cause him psychological harm because: (1) Child “does not wish to return to Spain and lacks any sufficient degree of accommodations there”; (2) Father “does not have a permanent home or stable, long-term employment in Spain”; (3) Mother “is unable to live or work in Spain because she is unable to secure the proper immigration status to do so”; and (4) return to Spain “would subject [Child] to … tumultuous custody proceedings[.]” The Court found Mother failed to prove by clear and convincing evidence that return to Spain will expose Child to a grave risk of harm.

 Second, she claimed that Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take his views into account. The Court found Mother failed to demonstrate that Child expressed a particularized objection to returning to Spain. He did not communicate dislike for Spain so much as a preference for the United States. Child complained about Spain’s weather and stated that there was “nothing to do there,” but he also reported that the home he shared with Mother was “awesome” and there were “a lot of things to do there.” Child’s general complaints about Spain did not suggest that “living in that country would be unacceptable.” 

Recent Hague Convention District Court Cases - Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020)

 [France][Habitual residence][Petition denied]

In Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020) the Court denied the petition return the Minor Children to France. It agreed with Respondent that the  family intended to move to Florida to pursue a business opportunity (a tea room) and the Minor Children were acclimated. As a result, the habitual residence of the Minor Children was Florida. 

Petitioner and Respondent were married in France and the Minor Children were born in France. Until October 3, 2018, the family lived together in France. Prior to moving to the United States, the family often vacationed to South Florida. Petitioner and Respondent purchased an apartment in Hallandale, Florida as a vacation home. The applied for and after an  E-2 Investor Visa was approved, the Petitioner and Minor Children were given derivative visas valid until September 2023. The family made the necessary arrangements to move to their apartment in Hallandale, Florida. Petitioner, a pilot,  applied for a work permit to legally assist Respondent with the Tearoom. Petitioner also notified his employer of his new residence and requested an adjustment to his flight schedules.. Petitioner and Respondent jointly agreed to enroll their children in an American school instead of a charter school for international students. And apart from the family car, a few articles of clothing, and family pictures, Petitioner and Respondent sold all their belongings in France. While living in Florida, the Minor Children learned English exceptionally well. They were both performing well academically, admired their teachers, had several friends, and enjoyed jujitsu—an activity they started while here in the United States. They did not stay in contact with many friends in France. And if given the choice, the Minor Children do not want to return to France. Respondent alleged the decision to start a business in the United States and move to Florida was intended to be a permanent transition. Respondent testified as to the financial burden in applying for the E-2 visa, buying the tearoom storefront, and operating the Tearoom. . She also focused on the joint decision to enroll the Minor Children in American schools as opposed to international schools.  Respondent also noted that the family packed all their necessities and sold all their furniture in France, leaving behind only a few mementos and a storage unit for delivery shipments to France. The evidence did not support a temporary transition or a “family adventure.” Petitioner and Respondent spent several months applying for a lottery visa and later the E-2 Investor Visa. They hired consultants and invested approximately $130,000 to purchase and maintain the Tearoom. And although it would be difficult to convert a European pilot’s license to an American pilot’s license, this, alone, did not give credence to the “family adventure” theory proposed by Petitioner—especially because Petitioner, according to testimony adduced at trial, intended to commute between Florida and France. Thus, the evidence, when viewed objectively, warranted the reasonable conclusion that Petitioner and Respondent intended to make the Tearoom a success and permanently transition to Florida. The Court’s conclusion was further supported by numerous facts indicating acclimatization by the Minor Children. They are well-adjusted, speak English fluently, have made many friends in South Florida over the past two years, participate in social activities, and did not wish to return to France. 

Recent Hague Convention District Court Cases - Spica v Viera, 2020 WL 13401915 ( S.D. Florida, 2020)

 [Italy] [Motion for summary judgment][Motion denied]

In Spica v Viera, 2020 WL 13401915 ( S.D. Florida, 2020) Petitioner filed a Petition for Return of Children seeking the return of Petitioner’s two minor children (E.S. and S.S.) to Italy. Petitioner moved the Court to grant “the Petition in its entirety” and to “deny[ ] and dismiss[ ] Respondent’s affirmative defenses in their entirety.” Based on the available evidence, the Court found that there is a genuine issue of material fact as to whether the United States or Italy was the habitual residence of the children prior to Respondent’s alleged wrongful retention in February 2020. The Court, therefore, denied summary judgment. Moreover, the Court found that the record presented additional factual issues with respect to whether E.S. has attained an age and degree of maturity to object to being returned to Italy. 

Recent Hague Convention District Court Cases - Spica v. Viera, 2020 WL 13401916 (S.D. Florida, 2020).

 

Spica v. Viera, 2020 WL 13401916 (S.D. Florida, 2020). 

 [Italy][Habitual residence][Petition granted][Consent defense and age and maturity defense not established]

Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022)[Canada][Grave risk of harm][Petition denied] [ameliorative measures insufficient]

In Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022) the District Court denied the Petition of  Gadi Braude (“the Father”) against Dorona Mia Zierler (“the Mother”) seeking the immediate return of their two sons to Canada.

 Respondent averred that Petitioner consented to Respondent removing the children to the United States. The Court explained that to establish this defense, the respondent must show by a preponderance of the evidence that the petitioner consented to the removal or retention. Velozny v. Velozny, 550 F. Supp. 3d 4, 15 (S.D.N.Y. 2021). The consent does not have to be formal, instead the Court must analyze the petitioner’s conduct prior to the removal or retention, and “consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. “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  failed to prove by a preponderance of the evidence that Petitioner consented to Respondent taking the two children to New York on December 29, 2021. The parties did not dispute that on the day of the separation, the Mother left with the two children and did not tell Petitioner where they were going. Petitioner called and texted the Mother, who refused to answer. Specifically, that evening, Petitioner texted the Mother asking what she was planning and whether she was going to the United States, and begging her not to take the children away. Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (holding the respondent failed to prove that the consent defense applied where “Respondent’s departure to the United States was immediately followed by contemporaneous text messages from Petitioner protesting Respondent’s actions, lamenting his unilateral decision to take the Children away from her, and refusing to write a letter allowing the Children to live with Respondent”). Petitioner stated he was “blindsided”, and that Respondent made this decision without him. While the parties had discussions about the Mother and children going to live with her parents in New York after Petitioner’s arrest, these discussions did not indicate Petitioner provided consent to their removal at the time of the separation. See Velozny, 550 F. Supp. 3d at 16–17 (holding the petitioner did not consent to removal where emails showed the petitioner discussed receiving assistance from his father-in-law in New York but eventually rejected the idea of sending the children there); Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253, at *7 (E.D.N.Y. May 7, 2008) (holding that the parties’ custody agreement that stated that after returning to Colombia the child could move to the United States if he so desired was insufficient to establish the petitioner consented to retention of the child in the United States). While the Mother provided testimony showing that Petitioner gave her the children’s birth certificates before they left the house, this, without more, was insufficient to establish Petitioner’s subjective consent to her taking the children to live in New York. See Kosewski v. Michalowska, No. 15-CV-928 (KAM)(VVP), 2015 U.S. Dist. LEXIS 139924, at *44–45 (E.D.N.Y. Oct. 14, 2015) (denying consent defense where the record established that petitioner accompanied respondent to a passport office after she requested that he consent to the child obtaining a passport, but the parties disputed whether respondent told petitioner that she planned to move to the United States with the child prior to petitioner’s agreement); In re J.J.L.-P., 256 S.W.3d 363, 375 (Tex. App.—San Antonio 2008, no pet.) (upholding denial of the consent defense where the petitioner surrendered the child’s travel documents to the respondents because petitioner testified that he surrendered the documents to permit the child to enter the country for the holidays only). The  Court held that Respondent has failed to prove by a preponderance of the evidence that Petitioner consented to the children’s removal and retention.

 

Petitioner next averred that there was a grave risk that returning the children to Canada would expose them to harm. The Court noted that Article 13 of the Hague Convention prevents the Court from ordering the return of a child when “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). “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.” Abdollah Naghash Souratgar v. Fair, 720 F.3d 96, 103 (2d Cir. 2013). The respondent bears the burden of establishing the defense by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A). The defense requires a real risk of the child being harmed. Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). The Court agreed with Respondent that the record established “Petitioner’s unstable mental health and demonstrated history of engaging in dangerous and illegal activities” and that this created a probability of grave harm and an extreme magnitude of harm. Specifically, Respondent averred that Petitioner’s untreated mental health issues, history of domestic violence and coercive conduct, and access and possession of child pornography together demonstrated a grave risk of harm to the children.

 

The record reflected an existence of factors in combination that create a grave risk of harm if the children were returned to Canada. First, Petitioner has a long and serious history of untreated mental health issues. Petitioner had suicidal ideation and attempts since the age of ten. He  attempted suicide three times, including once when Child 1 was asleep in the house. Petitioner was diagnosed with BPD in 2020, but did not answer in the affirmative when asked if he accepts his diagnosis. He was not prescribed medication until March of 2021, and had been unable to begin the treatment needed for BPD. While he acknowledged a need for treatment and to unpack past traumas, Petitioner has had an unstable history of treatment, and only recently began working with a psychiatrist in response to his criminal charges.

 

Respondent presented testimony from Dr. Elizabeth Jeglic, a clinical psychologist and professor, who testified that DBT is an intense behavioral treatment for those with BPD and repeated suicide attempts, which typically takes years to become effective. Without this therapy, BPD symptoms including self-harming, suicide, and emotional instability, would continue. Further, Dr. Jeglic discussed the intergenerational suicide risk which states that a parent who attempts suicide increases the risk of their children engaging in suicidal behavior. There was no doubt that exposing the children to suicidal behavior would create a real risk of psychological harm.

 

In addition, Petitioner had a concerning history of angry and manipulative behavior. He had threatened to commit suicide, hit and shoved Respondent out of anger, continued play fights with both Respondent and Child 1 when asked to stop due to pain, and strangled Respondent to the point of almost passing out. Petitioner also had intense, angry reactions when the Mother merely brings up discussing him with others, including her therapist. While most of this behavior was directed at the Mother, “evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense.” Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017) (upholding the district court’s finding that the grave risk of harm defense applied as the petitioner had a history of “pervasive, manipulative violence” that consisted of psychological abuse). This was particularly concerning now, as the Mother had discussed Petitioner’s mental health issues and criminal charges with a full range of people, including her family, friends, and the Court.

 

Finally,  and perhaps most important, was the Petitioner’s arrest for access and possession of child pornography. He has discussed having sexual fantasies involving children. While she did not examine Petitioner, Dr. Jeglic testified that those who possess child pornography are at an increased of risk of contact sexual abuse. Dr. Gojer  established that without treatment, Petitioner does create a risk to children. See M.M v. F.R, No. 11 Civ. 2355 (PKC), 2011 U.S. Dist. LEXIS 156760, at *26 (S.D.N.Y. June 30, 2011) (holding a grave risk of harm existed where eight years prior the petitioner engaged in sexual abuse of a child and had since had a “lack of a meaningful and continuing regimen of rehabilitation”). Further, while the children are too young to understand what is happening now, Child 1 will soon be at an age where he will start to question what is happening to his family. The “derivative harm” of Child 1 eventually learning about his Father’s actions could prove to be “psychologically devastating.”

 

Petitioner states that he had consented to eight ameliorative measures if this Court ordered the children return to Canada, including (i) JFCS is notified in advance of the return date of the children to Canada; (ii) Petitioner continues to comply with all surety conditions; (iii) Petitioner has no contact with Respondent upon her return to Canada; (iv) Petitioner continues to undergo therapy with Peach; (v) Petitioner continues to take his Sertraline prescription; (vi) Petitioner commences DBT with Peach; (viii) Petitioner continues to reside with his parents; and (viii) Petitioner continues to comply with all JFCS conditions and requirements. The court noted that in considering ameliorative measures, the Court must (1) “prioritize the child’s physical and psychological safety”; (2) “abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute”; and (3) “accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children.” Golan v. Saada, 142 S. Ct. 1880, 1893–94 (2022). The Court did  not find that these ameliorative measures would prioritize the children’s physical and psychological safety. None of the proposed measures address Petitioner’s history of aggressive behavior and coercive control. None of the measures adequately protect the children from Petitioner’s pedophilia. The Court held that Respondent established the grave risk of harm defense.

 

 

Recent Hague Convention District Court Cases - Bhattacharjee v. Craig, 2022 WL 2915545 (E.D. Missouri, 2022)

 [Singapore][Petition granted][Attorneys fees and Costs][Not clearly inappropriate]

In Bhattacharjee v. Craig, 2022 WL 2915545 (E.D. Missouri, 2022) Respondent conceded the prima facie case for wrongful removal but raised the mature child exception as an affirmative defense. After a bench trial the Court found Respondent had failed to meet her burden to show that the mature child exception applied. Based on that finding, the Court ordered Respondent to return the children to Singapore. On November 20^th, Petitioner filed this Motion, seeking $81,571.92 as payment for attorneys’ fees and costs. Respondent argued that under Ozaltin, which she stated is “the leading case” on this issue, an award of fees is clearly inappropriate because she acted in good faith when she and the children remained in the United States. (citing Ozaltin, 708 F.3d at 375-76). The Court found that Respondent did not act in good faith in removing the children from Singapore, and her belief that she should refuse to return because of the “need [ ] to respect the concerns of her son,” is not sufficient grounds to find that the fee award would be clearly inappropriate. The court held that ICARA § 9007 does not apparently place any burden on Petitioner; the only burden in the statute is Respondent’s to establish that an award of fees “would be clearly inappropriate.” 42 U.S.C. § 9007(b)(3). As to Petitioner, the only question was whether it was necessary for him to incur legal fees in order to obtain the return of the children. Here, there was no dispute that it was. The court noted that “An award is clearly inappropriate where the respondent shows the award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child[ren].” Wan, 2021 WL 3510232, at *17 (citing Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018)); see also Mendoza, 987 F. Supp. 2d at 915; Forcelli, 2021 WL 638040, at *3 and her financial status was not grounds to find that the award would be clearly inappropriate.  Respondent failed to carry her burden under ICARA to show that Petitioner’s requested attorneys’ fees award would be clearly inappropriate. See 42 U.S.C. § 9007(b)(3). Petitioner was entitled to an award in the amount of $81,571.92 for her two attorneys.

Recent Hague Convention District Court Cases - Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022)

 [Belgium] [Habitual Residence] [Wrongful retention] [Petition granted]

In Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022) the  principal contested issues were  (1) whether Respondent had “wrongfully retained” A.L.S. and A.H.S. in New Jersey as of July 10, 2019 without Petitioner’s consent; (2) if she had, whether the United States or Belgium was the children’s “habitual residence” immediately prior to the date of wrongful retention; and (3) if the habitual residence was Belgium, whether Respondent had any affirmative defenses. The Court found that Respondent wrongfully retained the children in New Jersey in July 2019. Respondent asserts four affirmative defenses: intolerable situation, consent or acquiescence, the well-settled exception, and the mature child exception, but did not prove any of them. The Petition for return was granted.

Recent Hague Convention District Court Cases - Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019)

 

[Argentina] [Habitual Residence] [Age and Maturity Defense] [Petition denied]

In Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019) the Court found that: 1) Petitioner failed to establish a prima facie case because there wass not enough evidence that Argentina was the children’s habitual residence; 2) Petitioner and Respondent only intended to move to Argentina for a specific, limited duration; 3) a two-year time period falls within the language of “specific, limited” duration; 4) M.G.S., a 14 year old,  was of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina; and 5) A.C.S., a 10 year old, was is of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina. Accordingly, the Court denied Petitioner’s request to have his children returned to Argentina.

Recent Hague Convention District Court Cases - Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020)

 

[Armenia] [Rights of Custody] [Petition granted]

In Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020) the court found that, at the time of the removal, Petitioner was not exercising rights of custody, and failed to show that he would have exercised them but for the removal. The rights Petitioner exercised in the months prior to Respondent’s removal of the child were “rights of access” under the Convention, and not “rights of custody,” and, accordingly, could not support the wrongful removal claim.⁸ Nor had Petitioner demonstrated that he would have asserted custodial rights but for the removal. In light of the finding that the Petitioner was not actually exercising any rights of custody at the time of the child’s removal, the court did not need to reach the question of whether Petitioner had legal custody of the child under Armenian law at the time of the child’s removal. Having found that the removal of the child from Armenia was not wrongful, the court also does not reach Respondent’s affirmative defenses that Petitioner consented to her removal of the child from Armenia, subsequently acquiesced to the removal, poses a grave risk of harm to the child should she be returned, or undertook this litigation with unclean hands.

 

Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) [Jamaica][Petition voluntarily granted][Attorneys fees and Costs]

In Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) Petitioner brought a Petition against pro se Respondent, for the return of their child, A.C. to Jamaica, from where she was staying with Respondent in Mount Vernon. 

According to the Petition, the Parties married in Jamaica in October 2011. After they married, Petitioner continued living in Jamaica, and Respondent traveled back and forth between Jamaica and the United States. The Child was born in 2012 in Jamaica. In April 2015, Petitioner and Respondent separated. According to Petitioner, the Parties informally agreed that Petitioner would have custody of the Child and Respondent would have visitation in New York during holiday periods. From 2015 to 2020, the Child would visit Respondent during the summer and Christmas holidays for approximately four to six weeks. On August 1, 2020, the Child left Jamaica to visit Respondent in New York for the summer holiday, and the Parties had agreed that the Child would return by September so that she could start the school semester in Jamaica. By September 2020, Respondent had not returned the Child to Jamaica. According to Petitioner, she never consented to the Child staying in the United States, and Respondent refused to return the Child to Jamaica despite frequent requests for her return. Petitioner also alleged that the Child expressed to her that she wanted to return to Jamaica. According to Respondent, he believed it was safer for the Child to remain in the United States because the risk of COVID-19 was greater in Jamaica. As of November 21, 2021, the Parties were involved in divorce and custody proceedings in Jamaica. After this proceeding was commenced the parties voluntarily agreed that Respondent would return the Child to Jamaica, and the Court entered a Voluntary Return

 

 The Court observed that the Hague Convention provides that, where a court orders the return of a child under the Convention, the court: may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child. Hague Convention, art. 26 ICARA provides [a]ny court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3) (emphasis added). The Second Circuit has held that, in light of these provisions, “a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). The Second Circuit has also held that “the appropriateness of such costs depends on the same general standards that apply when ‘attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.’“ There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Ozaltin, 708 F.3d at 375. 

 

The  court found that petitioner was the prevailing party, given that Respondent voluntarily agreed to return A.C. to Jamaica pursuant to a Voluntary Return Order. Petitioner is  the prevailing party and is presumptively entitled to necessary costs. Ozaltin, 708 F.3d at 375.

 “[The] presumption of an award of expenses to a prevailing petitioner is subject to a broad caveat denoted by the words, ‘clearly inappropriate.’ ” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016). “Generally, in determining whether expenses are “clearly inappropriate,” courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.” Here there were no allegations that Petitioner committed intimate partner violence or anything close to that. Petitioner alleged that she and Respondent separated because he became “physically abusive” toward her. In considering whether an award of fees and costs would be clearly inappropriate, courts within the Second Circuit have also considered whether the respondent had “a reasonable basis for removing the children to the United States.” Ozaltin, 708 F.3d at 375. Here, Respondent alleges that he did not return the Child to Jamaica in August 2020 due to the risk of the COVID-19 pandemic, which he believed was greater in Jamaica than in the United States. Even if the Court credited this explanation it would not explain why he still had not returned the Child to Jamaica a year later, when the Petition was filed. Finally, “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. Here, the Court was unable to take Respondent’s ability to pay into account because the Respondent did not provide any information regarding his financial condition. See also Paulus ex rel. P.F.V. v. Cordero, No. 12-CV-986, 2013 WL 432769, at *10 (M.D. Pa. Feb. 1, 2013). That Respondent represented himself did not change this result. For example, in Gee v. Hendroffe, No. 14-CV-2795, 2015 WL 2151885, at *3 (S.D. Tex. May 7, 2015). The Court found that awarding Petitioner attorney’s fees and costs would not be clearly inappropriate. Petitioner is thus entitled to necessary fees and costs. This result was not changed by the fact that Petitioner was represented by pro bono counsel. “[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Conventions fee provision.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 209 (E.D.N.Y. 2010), aff’d, 401 F. App’x 567 (2d Cir. 2010); see also Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010); Sullivan v. Sullivan, No. CV-09-545, 2010 WL 1651994, at *1 (D. Idaho Apr. 21, 2010).

The Court found that Petitioners counsel provided competent and professional legal services throughout the course of this case, it agreed to take on the case on a pro bono basis and therefore did not expect to be paid for its services or reimbursed for its expenses. While, nevertheless, full payment of its legal fees wass appropriate to carry out ICARA’s fee-shifting provisions, full payment of costs was not. Duran-Peralta v. Luna, No. 16-CV-7939, 2018 WL 1801297, at *6 (S.D.N.Y. Apr. 2, 2018) (reducing the attorney’s fees by 30% and costs by 50% where the petitioner was represented by pro bono counsel).

 

The Court considered the amount of attorney’s fees and costs to be awarded. “As for the appropriate amount of attorneys’ fees and costs, “[b]oth the [Second Circuit] and the Supreme Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case—creates a presumptively reasonable fee.” Nissim, 2020 WL 3496988, at *2 (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011)) “Courts determine the reasonable hourly rate by considering case-specific variables such as the complexity of the case, the amount of work required, the attorney’s experience, and awards in similar cases.”  (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 189 (2d Cir. 2008)). Courts also consider whether the rates sought by the petitioner are “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006).

 

The Court observed that  courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Here, Petitioner requested the following hourly rates for five attorneys: Partner ($600/hour), Partner ($550/hour), Partner ($525/hour), Associate ($325/hour), and law school graduate ($250/hour). The Court found that a rate of $425 is appropriate for the most experienced Hague attorney who handled 30 Hague Cases. See Grano, 2021 WL 3500164, at *3 The rate of $350 was warranted for the partner with 29 years of experience primarily as a family law attorney who had litigated “several” Hague Convention cases. See Duran-Peralta, 2018 WL 1801297, at *3. $325/hour was an appropriate billing rate for the partner with 12 years of experience, which included litigating 11 Hague Convention cases. See Knigge, 2001 WL 883644, at *3. A rate of $200/hour was appropriate for the associate with three years of experience who had worked on seven Hague Convention Cases.  Finally, $175/hour was an appropriate rate for a 2021 law school graduate who, at the time that the Motion was filed, had not yet taken the New York State Bar. 

The Court considered the reasonableness of the hours expended by Petitioner’s attorneys. “In determining the number of hours reasonably required, a court should exclude ‘excessive, redundant[,] or otherwise unnecessary hours.’ ” Knigge, 2001 WL 883644, at *2 (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)). Petitioner submitted that her attorneys expended 47.3 hours working on her case, which amounted to a total of $18,830 in attorney’s fees. Petitioner reduced this number by two-thirds in her Motion, requesting a total of $12,553.33 in attorney’s fees. Although the Court did not find that the hours expended by the attorneys in this case were excessive, the noted the two-thirds reduction was nevertheless appropriate, even with the Court’s reduction in the attorneys’ billing rates given the fact that counsel  represented Petitioner on a pro bono basis,  See, e.g., In re JR, 2017 WL 74739, at *3, and the Respondent did not file a financial affidavit  The Court  therefore further reduced the fees awarded by two-thirds. This amounts to a total of $7,341.67.5 The Court added costs in the amount of $300, paid to a process server on Petitioner’s behalf. The Court awarded Petitioner a total of $7,641.67. 

Recent Hague Convention District Court Cases - Aredes v Aredes, 2022 WL 2235853 (D. Massachusetts, 2022)

 

Aredes v Aredes, 2022 WL 2235853 (D. Massachusetts, 2022)

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

Golan v. Saada, ___U.S.___, (Supreme Court, June 15, 2022) [Italy] [Petition granted] [Ameliorative measures] [Vacated and remanded]

Golan v. Saada, ___U.S.___,  (Supreme Court, June 15, 2022)
[Italy][Petition granted][Ameliorative measures] [Vacated and remanded]

Petitioner Narkis Golan was a citizen of the United States. She met respondent Isacco Saada, an Italian citizen, while attending a wedding in Milan, Italy, in 2014. Golan soon moved to Milan, and the two wed in August 2015. Their son, B. A. S., was born the next summer in Milan, where the family lived for the first two years of B. A. S.’ life.  The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair. Saada also yelled and swore at Golan and frequently insulted her and called her names, often in front of other people. Saada once told Golan’s family that he would kill her. Much of Saada’s abuse of Golan occurred in front of his son. In July 2018, Golan flew with B. A. S. to the United States to attend her brother’s wedding. Rather than return as scheduled in August, however, Golan moved into a domestic violence shelter with B. A. S. In September, Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B. A. S.

       Saada also filed a petition under the Convention and ICARA in the U. S. District Court for the Eastern District of New York, seeking an order for B. A. S.’ return to Italy. The District Court granted Saada’s petition after a 9-day bench trial. As a threshold matter, the court determined that Italy was B. A. S.’ habitual residence and that Golan had wrongfully retained B. A. S. in the United States in violation of Saada’s rights of custody. The court concluded, however, that returning B. A. S. to Italy would expose him to a grave risk of harm. The court observed that there was “no dispute” that Saada was “violent—physically, psychologically, emotionally, and verbally—to” Golan and that “B. A. S. was present for much of it.” The court described some of the incidents B. A. S. had witnessed as “chilling.”  While B. A. S. was not “the target of violence,” undisputed expert testimony established that “domestic violence disrupts a child’s cognitive and social-emotional development, and affects the structure and organization of the child’s brain.”  Records indicated that Italian social services, who had been involved with the couple while they lived in Italy, had also concluded that “ ‘the family situation entails a developmental danger’ for B. A. S.”  The court found that Saada had demonstrated no “capacity to change his behavior,” explaining that Saada “minimized or tried to excuse  his violent conduct” during his testimony and that Saada’s “own expert said . . . that [Saada] could not control his anger or take responsibility for his behavior.” 

       The court nonetheless ordered B. A. S.’ return to Italy based on Second Circuit precedent obligating it to “ ‘examine the full range of options that might make possible the safe return of a child to the home country’ ” before it could “ ‘deny repatriation on the ground that a grave risk of harm exists.’ ”  The Second Circuit based this rule on its view that the Convention requires return “if at all possible.” Blondin I, 189 F. 3d, at 248. To comply with these precedents, the District Court had required the parties to propose “ ‘ameliorative measures’ ” that could enable B. A. S.’ safe return. Saada had proposed that he would provide Golan with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges he had filed against Golan, begin cognitive behavioral therapy, and waive any right to legal fees or expenses under the Convention. The court concluded that these measures, combined with the fact that Saada and Golan would be living separately, would “reduce the occasions for violence,” thereby ameliorating the grave risk to B. A. S. sufficiently to require his return. 

The Second Circuit vacated the return order, finding the District Court’s ameliorative measures  insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.’ return. The Second Circuit affirmed.

The Supreme Court, in a unanimous opinion by Justice Sotomayor held that a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child’s safe return. Justice Sotomayor found that the Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives. Blondin I, 189 F. 3d, at 248. The Convention does not pursue return exclusively or at all costs. Rather, the Convention “is designed to protect the interests of children and their parents,” Lozano, 572 U. S., at 19 (Alito, J., concurring), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures in at least three ways. 

First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. A court may decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave. Sexual abuse of a child is one  example of an intolerable situation. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed.

 

Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. A court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.

 

Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children. Timely resolution of return petitions is important in part because return is a “provisional” remedy to enable final custody determinations to proceed.  A requirement to “examine the full range of options that might make possible the safe return of a child,” is in tension with this focus on expeditious resolution. Consideration of ameliorative measures should not cause undue delay in resolution of return petitions.

       Justice Sotomayor summarized the Courts holding as follows: “ …although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.”

In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. It was appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___. The Court held that the District Court should determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. The order of the Second Circuit was vacated and the case remanded.

 

Recent Hague Convention District Court Cases - Aldaba v Marta, 2022 WL 1641320 ( D. Kansas, 2022).

 Aldaba v Marta, 2022 WL 1641320 ( D. Kansas, 2022).

[Mexico] [Petition granted] [Grave risk of harm not established] [Respondent alleged that the children have sustained physical abuse and neglect while in Petitioner’s custody; that Mexican authorities have ignored Respondent’s complaints about the alleged abuse and neglect; and that Ciudad Juarez is a dangerous city with high crime rates. The Court held that Respondent failed to come forward with “clear and convincing evidence” proving that these three reasons, whether taken collectively or considered separately. presented a “grave risk” that returning the children to Mexico will expose them to harm or an intolerable situation.

 

Dumitrascu, on behalf of A.M.B.D v. Dumitrascu, Not Reported in Fed. Rptr., 2022 WL 1529624 (Tenth Circuit, 2022)

 Dumitrascu, on behalf of A.M.B.D v. Dumitrascu, Not Reported in Fed. Rptr., 2022 WL 1529624 (Tenth Circuit, 2022) the district court found that Alin wrongfully retained A.M.B.D. in the United States and ordered A.M.B.D.’s return to Romania. On appeal challenge the district court’s threshold finding that A.M.B.D. habitually resided in Romania. The Tenth Circuit affirmed.

Alin and Violeta were both Romanian by birth and have family in Romania. Alin moved to the United States in 2006 and became a United States citizen. Violeta was  a Romanian citizen. 
The two met online in 2007 and married in Romania in 2015. They then moved to Colorado in 2016, and Alin successfully sponsored Violeta’s application for a green card. Violeta later became pregnant with A.M.B.D. The couple decided to travel to Romania for her birth in part to avoid hospital fees in the United States. They traveled to Romania in early August 2019, where they stayed with Alin’s father; though at that point they “intended to return to the United States at some point to raise the child.” Violeta gave birth to A.M.B.D. on September 4, 2019, and the couple lived in Romania for about ten months after A.M.B.D.’s birth. During that time, their “plan for the future diverged.”. “When A.M.B.D. was five weeks old, [Violeta] got a job [in Romania] because someone had to earn money and [Alin] did not want to work in Romania.” . Violeta’s green card also expired, the United States denied her application for an extension, and she developed reservations about returning to the United States. “She therefore made plans for the family to live in Romania.” As part of these plans, she applied for “the First House program, a Romanian program to assist young families in buying their first home.” Alin intended for the family to return to the United States. He got Violeta’s permission to travel to the United States with A.M.B.D. so he could obtain a social security card for the child. “He also planned to work on getting [Violeta] a green card, to bring her over to the United States, and to earn money through a job.” To facilitate this trip, Violeta signed an affidavit that stated: “I agree and consent[ ] that [A.M.B.D. can] travel to the United States of America, starting with July 6, 2020, until December 31, 2020, together with Alin Dumitrascu, as parent of minor.” Alin took A.M.B.D. to the United States in July 2020. But he did not help Violeta apply for a green card. And he did not return A.M.B.D. to Romania by the December 31 deadline to do so. Violeta then filed for divorce in Romania and launched these proceedings seeking A.M.B.D.’s return to Romania.
 
The district court found that Romania was A.M.B.D.’s habitual residence when Alin retained her in the United States. It therefore evaluated whether Alin’s retention of A.M.B.D. breached Violeta’s custody rights under Romanian law, concluded that his retention did, and ordered A.M.B.D.’s return to Romania pending custody proceedings there. Alin challenges the district court’s finding that A.M.B.D. habitually resided in Romania.
 
The Tenth  Circuit agreed with Violeta that the district court found A.M.B.D. habitually resided in Romania on the date Alin retained her in the United States without Violeta’s permission. And the court ultimately found “that A.M.B.D.’s habitual residence at the time of her removal to the United States on July 8, 2020, and subsequent retention in the United States, was Romania.” 
 
Alin contended the district court clearly erred in finding that A.M.B.D. habitually resided in Romania. The Court observed that the Hague Convention does not define the term ‘habitual residence.’ ” Monasky, 140 S. Ct. at 726. “A child ‘resides’ where she lives. Her residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.” “The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”. “Because 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.” “There are no categorical requirements for establishing a child’s habitual residence,” and “[n]o single fact ... is dispositive across all cases,” Instead, “[t]he inquiry into a child’s habitual residence ... cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case.” Id. A petitioning parent bears the burden of proving a child’s habitual residence in the applicable country by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1)(A); West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). 
Alin was correct that “ ‘the intentions and circumstances of caregiving parents are relevant considerations.’ ” (quoting Monasky, 140 S. Ct. at 727). “But a court must consider all the facts and circumstances concerning the couple’s intended stay in the country.” Watts, 935 F.3d at 1145. Here, Alin and Violeta shared an intent to return to the United States “as a family.” They “never had a shared, mutual intent to live apart.” And when Violeta’s green card expired in November 2019, the family could no longer live together in the United States. The district court weighed the impact of this changed circumstance on the couple’s prior intent, alongside other facts, including the couple’s joint effort to secure an affidavit time-limiting A.M.B.D.’s travel away from the only country she had ever lived in, and found that “the parties’ pre-birth intent [was] outweighed by their intent and conduct thereafter.” It declined Alin’s invitation to re-weigh the evidence on appeal. See United States v. Gilgert, 314 F.3d 506, 515–16 (10th Cir. 2002) (“On clear error review, our role is not to re-weigh the evidence ....”).
 
Alin argued that “[o]utside of [Violeta’s] unilateral actions, the district court had little to rely on to support its conclusion that A.M.B.D.’s habitual residence was Romania.” The Court disagreed. The evidence showed A.M.B.D. was born in Romania, lived there for ten months—accumulating various possessions and building relationships with extended family in Romania during that time—and only left Romania via a travel document that limited her legal absence to less than six months. Also, both of her parents could legally live in Romania, whereas only her father could legally live in the United States. These facts support a finding that A.M.B.D. was “at home,” Monasky, 140 S. Ct. at 726, in Romania. Cf. United States v. Chavez, 734 F.3d 1247, 1250 (10th Cir. 2013) 
 
Alin highlighted evidence that could support a finding A.M.B.D. was habitually resident in the United States. But this evidence did not lead  to “a definite and firm conviction that the district court erred,” Chavez, 734 F.3d at 1250. Starting with A.M.B.D.’s citizenship, the Hague Convention’s writers “deliberately chose ‘habitual residence’ for its factual character, making it the foundation for the Convention’s return remedy in lieu of formal legal concepts like domicile and nationality.” Monasky, 140 S. Ct. at 727. And Alin did not cite any evidence that A.M.B.D.’s legal citizenship bore any relation to where she was “at home,” 
Alin argued the district court erred by failing to discuss evidence pertaining to A.M.B.D.’s acclimation in the United States during the period between July 8 and December 31, 2020, in its section addressing A.M.B.D.’s habitual residence. But as a general rule, “the district court is not required to make findings as to every detail. Findings are sufficient if they indicate the factual basis for the court’s general conclusion as to ultimate facts and are broad enough to cover all material issues.” Hjelle v. Mid-State Consultants, Inc., 394 F.3d 873, 880 (10th Cir. 2005) And in this case, the district court’s order made it clear the court was aware of and considered evidence of A.M.B.D.’s acclimation in the United States after July 8, 2020, by discussing some of that evidence in a later section of its order. 

*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Recent Hague Convention District Court Cases - Soberano v Guillen, 2022 WL 1092675 ( W.D. Washington, 2022)

Soberano v Guillen, 2022 WL 1092675 ( W.D. Washington, 2022)
[Mexico] [Order imposing sanctions on Petitioners attorney] [The Court learned at the conclusion of this case, that Petitioners attorney  had repeatedly sought a final order returning the children to Petitioner’s custody in Mexico after Petitioner had agreed, in the parties’ Mexican divorce proceedings, that the children could remain in the United States with Respondent. Apart from seeking a final order possibly inconsistent with the parties’ agreement, counsel failed to bring the dispositive agreement to the Court’s attention The Court concluded that sanctions were warranted, under the Court’s local rules and inherent powers, Federal Rule of Civil Procedure 11, and 28 U.S.C. § 1927, both for counsel’s actions in seeking a potentially inconsistent final ruling after receiving notice of the parties’ settlement agreement and for her failure to timely notify the Court of the agreement.]
 

 

Recent Hague Convention District Court Cases - Sanchez v Duarte, 2022 WL 1540581 ( N.D. Texas, 2022)

 Sanchez v Duarte, 2022 WL 1540581 ( N.D. Texas, 2022) 
[Mexico] [Petitioner’s Motion for Costs, Fees, and Expenses denied because it was untimely] [Despite ICARA’s mandatory language regarding awards of court costs and legal fees, federal and local procedural rules still apply in many jurisdictions. Thus, when a party files a motion for costs and attorney’s fees under ICARA so late that it violates such a procedural rule, a district court may properly disallow the award. See, e.g., Pesin v. Rodriguez, 244 F.3d 1250, 1253 (11th Cir. 2001) The Northern District of Texas has indicated a willingness to deny fees and costs under ICARA when the motion seeking them is filed too late to comply with a procedural rule. See Guaragno v. Guaragno, No.7:09-CV-187-0, 2011 WL 108946, at *3 & n.1 (N.D. Tex. Jan. 11, 2011) (O’Connor, J.) (finding the motion timely). In Guaragno, Judge O’Connor explained that in ICARA cases in this district, courts assess the lateness of a motion based on Rule 54(d). Other Hague cases calculate the timeliness of motions for attorney’s fees and costs based on local rules governing attorney’s fees. Because the Northern District of Texas does not have a local rule governing motions for attorney’s fees, the Court based its calculation of timeliness on Federal Rule of Civil Procedure 54(d). Consequently, a petitioner who prevails on the merits in an ICARA case in this District “must apply for an award of attorney’s fees within 14 days after the judgment is entered. The Court issued its Memorandum Opinion and Order granting Petitioner’s Petition for Return of Child on February 15, 2022. Petitioner’s Motion was therefore due by March 1, 2022. See FED. R. CIV. P. 54(d); Guaragno, 2011 WL 108946, at *3. However, Petitioner did not file the Motion until March 29, 2022.. Accordingly, the Motion was filed untimely. See FED. R. CIV. P. 54(d); Guaragno, 2011 WL 108946, at *3.

Recent Hague Convention District Court Cases - Munoz v Diaz, 2022 WL 1093270 ( S.D. Georgia, 2022)

 Munoz v Diaz, 2022 WL 1093270 ( S.D. Georgia, 2022)
[Mexico] [Petition granted] [Habitual residence established] [Grave risk of harm defense not proven; Mother’s testimony made no reference to any concern that the Father posed a risk of harming the Children.]

Recent Hague Convention District Court Cases - Krause v Krause, 2022 WL 1292261 (E.D. California, 2022)

 Krause v Krause, 2022 WL 1292261 (E.D. California, 2022). 
[Petitioner’s motion to permit witness testimony via video conference denied] 

Recent Hague Convention District Court Cases - Karim v Nakato, 2022 WL 1597955 ( D. Mass, 2022)

 

Karim v Nakato, 2022 WL 1597955 ( D. Mass, 2022)

[United Kingdom] [Habitual residence established] [Petition granted] [Consent and Acquiescence defense; age and maturity exception, Grave Risk of Harm defense and Well-Settled Child exception do not apply]

Recent New York Hague Convention New York Case - State of N.Y. ex rel. B.E. v T.C. --- N.Y.S.3d ----, 74 Misc.3d 778, 2022 WL 497517 (Sup. Ct, 2022)[United Kingdom][Habitual Residence][Petition denied]

 

State of N.Y. ex rel. B.E. v T.C. --- N.Y.S.3d ----, 74 Misc.3d 778, 2022 WL 497517 (Sup. Ct, 2022)

Petitioner B.E. brought this writ of habeas corpus to produce *the child M.C.-E., his child. The writ was satisfied on January 4, 2022. Mr. E. filed a petition permitting him to immediately take M. to London based on the court’s emergency jurisdiction under Domestic Relations Law §§ 75-a (7) and 76-c and the Hague Convention on the Civil Aspects of International Child Abduction. M. was with his mother, respondent T.C., in Brooklyn. She moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a) (4) and Domestic Relations Law § 76-e (1) and (2). 

 

Petitioner B.E. and respondent T.C. were married in London, England, in June 2007. In 2013 they adopted their son M.C.-E. They resided in London until Mr. E., who worked in the financial field, received an offer from Andreessen Horowitz, after which, in 2014, the family relocated to San Francisco, California. Ms. C. is a musician, well-known for her particular musical style. The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parents’ home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.

Tthe court denied the petitioner’s application to apply UCCJEA jurisdiction. Concurrently, Mr. E. sought a ruling that under the Hague Convention that England was M.’s “habitual residence” and immediately return M. to his care. The Supreme Court observed that the  Hague Convention is codified as the International Child Abduction Remedies Act (22 USC § 9001). A petitioner must demonstrate by a preponderance of the evidence: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” (Gitter v Gitter, 396 F3d 124, 130-131 [2d Cir 2005].) To determine habitual residence, the court must also “inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time” that they had the same interests. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z., 2021 WL 5106637, 2021 US Dist LEXIS 212008.)  The “habitual residence” determination is “fact-driven,” and “courts must be sensitive to the unique circumstances of the case and informed by common sense.” (Monasky v Taglieri, 589 US —, —, 140 S Ct 719, 727 [2020] [internal quotation marks omitted].) The residence must have the “quality of being habitual.” (589 US at —, 140 S Ct at 729) The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. (589 US at — n 3, 140 S Ct at 727 n 3.) Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021.The facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied. Ms. C.’s application for dismissal was granted to that extent.

 

Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) - [Venezuela][Grave risk of harm][ Asylum ][Petition granted]

In Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) the district court granted the petition of Pierre Salame Ajami (“Salame”) for the return of his two minor children to Venezuela, their country of habitual residence,  The Sixth Circuit affirmed

 

Tescari and Salame were Venezuelan citizens and had two minor children together, EAST and PGST. In 2018, Tescari removed the children from their home in Barquisimeto, Venezuela, and brought them with her to the United States. Salame filed a petition under the Hague Convention seeking the children’s return on February 20, 2019. Tescari and, as derivative family members, the children were granted asylum in the United States on June 10, 2019.  The parties stipulated to the applicability of the Convention and established Salame’s prima facie case of wrongful removal, so the only issue before the district court was whether Tescari established an affirmative defense under Article 13(b) of the Hague Convention. The district court concluded Tescari failed to establish, by clear and convincing evidence, her affirmative defense that returning the children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. It therefore granted Salame’s petition and ordered that the children be returned to Venezuela. The Sixth Circuit affirmed the district court’s conclusion that Tescari failed to present clear and convincing evidence that an Article 13(b) exception applied. She failed to demonstrate that returning the children to Venezuela would expose them to a grave risk of physical or psychological harm or otherwise subject them to an intolerable situation. 

The Court observed that whether a child would be exposed to a “grave risk” of harm or returned to an “intolerable situation” are mixed questions of law and fact that are reviewed de novo. Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001) 

Tescari claimed that returning the children to Venezuela would expose them to a grave risk of harm due to Salame’s alleged history of domestic violence. In a Hague Convention case, precedent establishes three broad categories of abuse: minor, clearly grave, and cases in the middle, in which the abuse “is substantially more than minor, but is less obviously intolerable.” Simcox, 511 F.3d at 607−08. A case involving relatively minor abuse would likely not pose a grave risk to the child nor place the child in an intolerable situation.. In such cases, the district court has no discretion to refuse the petition to return because the Article 13(b) threshold has not been met. A case in which the abuse is clearly grave typically involves “credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Cases in the middle category call for a fact-intensive inquiry into “the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.” 

 

First, Tescari contended the district court erred in finding that the claimed abuse towards her, which was allegedly witnessed by the children, fell into the category of minor abuse. The district court found that Tescari established one incident of physical abuse by Salame towards her in 2013, although it did not conclusively determine what happened. It also determined that the parties “have a tumultuous relationship that negatively affects EAST and PGST.”. The district court was unable to find that Salame ever abused the children. The district court made credibility determinations, and its factual conclusions regarding Tescari’s allegations of abuse were not clearly erroneous. The district court found one credible incident of abuse. This incident, even when considered alongside the other alleged and unproven conduct, was clearly less serious and less frequent than the middle-level abuse detailed in Simcox. It agreed with the district court’s conclusion that the one incident of abuse fell into the relatively minor category. The abuse did not rise to the level of a viable defense to the children’s return under Article 13(b). Because the abuse in this case was relatively minor, the district court had no discretion to refuse the petition nor to consider evidence of potential future harm.

 

Tescari claimed the district court “erred in finding that the children did not face a grave risk of physical or psychological harm from a return to Venezuela, a zone of war and famine”; thereby placing herself and the children in an intolerable situation. The Court noted that the difference between exposing a child to a “grave risk of harm” and subjecting a child to an “intolerable situation” is not clearly established in the court’s precedent. But an “ ‘intolerable situation’ must be different from ‘physical or psychological harm,’ but nevertheless serious,” meaning “either it cannot be borne or endured, or it fails some minimum standard of acceptability.” Pliego v. Hayes, 843 F.3d 226, 233 (6th Cir. 2016). An “intolerable situation” can arise when the state of habitual residence is experiencing civil instability. Similarly, a grave risk of harm exists when “return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease.” Friedrich, 78 F.3d at 1069. But an intolerable situation does not arise merely when the child would be returned to a country “where money is in short supply, or where educational or other opportunities are more limited than in the requested State.” Whether reviewed for grave risk of harm or intolerable situation, this is an inquiry that evaluates both Venezuela’s overall dangerousness and the particular circumstances the children would face if returned to Venezuela. See Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1364 (M.D. Fla. 2002); see also Pliego, 843 F.3d at 232 (citing id. at 1364−65).

 

The court noted the lack of precedent identifying any country as a zone of war sufficient to trigger the grave risk or intolerable situation exception. Turning to Venezuela, it noted that Venezuela is not actively torn by civil war, it remains a single integrated country capable of signing international treaties. As such, it remains a fellow signatory to the Hague Convention. The parties presented evidence of the humanitarian and political crises unfolding in Venezuela and evidence of the particular circumstances the children would face if returned. Considering both parties’ evidence, the district court determined Salame could provide the children with shelter, food, and medication in Venezuela. This factual finding was not clearly erroneous. Although the conditions in Venezuela were less stable than those the children likely enjoyed in Murfreesboro, Tennessee, this does not mean they would face an intolerable situation or a grave risk of harm upon return. Despite Venezuela’s political schisms and civil unrest, Tescari failed to introduce sufficient evidence that it was a zone of war, famine, or disease warranting an Article 13(b) affirmative defense.

 

Tescari argued that the district court erred in concluding that she failed to prove the corruption of the Venezuelan courts and the undue influence of Salame. Tescari pointed to testimony about general corruption in the Venezuelan judiciary, testimony about persecution of political opposition leaders, and her attorney’s testimony about proceedings being biased in favor of Salame due to his political connections. However, there was also evidence that Tescari’s attorney had been able to file documents, review case files, and even secured a new judge to oversee the parties’ custody dispute after requesting recusal of the previous judge. Ultimately, the district court found that delays in court proceedings among the parties and other examples of purported corruption “are not so severe as to indicate the Venezuelan courts are corrupt or that they would be unable to fairly adjudicate the custody dispute.” Ajami, 2020 WL 996813, at *19. This factual finding was not clearly erroneous, and any defects in the Venezuelan court system fell short of what is required for an intolerable situation. Pliego, 843 F.3d at 235.

 

Lastly, Tescari argued the district court failed to properly consider her grant of asylum, thereby “threaten[ing] the sovereignty of the executive branch. She claimed the district court’s order effectuating return, despite the children’s asylee status, usurped Congress’s authority and renders null the executive branch’s asylum determination. This argument was without merit because the district court has the authority to order the return of wrongfully removed children, regardless of whether the children were previously granted asylum. It noted that the Fifth Circuit considered a similar question in Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014). In Sanchez, while their appeal was pending, the children were granted asylum in the United States pursuant to 8 U.S.C. § 1158, which states “the Attorney General ... shall not remove or return the alien to the alien’s country of nationality.” On appeal, the children argued that the grant of asylum superseded the district court’s order. Sanchez, 761 F.3d at 509. The Fifth Circuit rejected this argument, refusing to hold that the grant of asylum must be revoked before the children could be returned to Mexico.  Tescari and, derivatively, the children were granted asylum before the district court ordered return of the children. But, as in Sanchez, she and the children were granted asylum under 8 U.S.C. § 1158, and the court adopted the Fifth Circuit’s reasoning here. “The judicial procedures under the Convention do not give to others, even a governmental agency, authority to determine [the] risks” children may face upon return to their country of habitual residence. Sanchez, 761 F.3d at 510. Thus, “an asylum grant does not remove from the district court the authority to make controlling findings on the potential harm to the child.” The district court made independent findings on whether the children would face an intolerable situation or a grave risk of harm in Venezuela, considering all offered, admissible, and relevant evidence. “The prior consideration of similar concerns in a different forum” may be relevant, but a grant of asylum does not strip the district court of its authority to make controlling findings regarding circumstances the children may face upon return.  To be granted asylum, eligibility must be shown by a preponderance of the evidence. See 8 C.F.R. § 1208.13(a), (b)(1)(i). But for an Article 13(b) affirmative defense to apply, the respondent must establish the exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2). Additionally, the opportunity for participation by interested parties may be different—here, Salame did not participate in the asylum proceedings.

 

Although the Fifth Circuit vacated the district court’s return order and remanded the matter to the district court to consider the newly “available evidence from the asylum proceedings,” the Sixth Circuit did not find remand necessary here. Sanchez, 761 F.3d at 511. Here, the district court did not explicitly mention the grant of asylum in its Order. But the grant of asylum was discussed at trial, and the district court admitted into evidence Tescari’s “Asylum Approval” document. Tescari had the opportunity to present evidence from the asylum proceedings, which may have also been relevant to the instant proceedings, to the district court but failed to do so. Now, on appeal, she failed to point to any evidence that would have been elicited from the asylum proceedings that the district court failed to cover over the course of the four-day trial. Her argument rested solely on the district court’s lack of a discussion of the effect of the grant of asylum itself in its Order. But a grant of asylum does not substitute for the district court’s determination that Tescari failed to establish an Article 13(b) affirmative defense based on grave risk of harm or intolerable situation. Nor does it substitute for our own de novo finding of the same. While the factors that go into a grant of asylum may be relevant to determinations under the Hague Convention, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense. It rejected Tescari’s argument that a grant of asylum deprives federal courts of authority to enforce the Hague Convention.