[Germany][Petition granted][Grave risk of Harm][Ameliorative measures]
Saturday, September 10, 2022
Recent Hague Convention District Court Cases - Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022)
Recent Hague Convention District Court Cases - Ruiz v Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)
[Colombia] [Petition granted]
In Ruiz v
Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)the District Court found that
in 2014, Petitioner was deported to
Colombia. Sometime in 2015, Respondent moved with K.P.C.A. to Colombia to live
with the Petitioner. Though Petitioner and Respondent never married, the family
lived together in Medellín, Colombia from sometime in 2015 until May 28,
2021.Colombian law requires that, before a child leaves Colombia with one
parent or a third party, the parent remaining in Colombia sign a “Permiso Para
Salir Del Pais.” This document authorizes the child to be out of the country
for the dates specified in the document. Petitioner signed and notarized a
Permiso Para Salir Del Pais authorizing K.P.C.A. to travel to the United States
from May 28, 2021 through June 17, 2021. At the point that Petitioner signed
the travel authorization, it was clear that the trip was to be no more than
three-weeks. However, at some point between May 28 and June 17, Respondent
decided not to return as planned. She cancelled her ticket and stayed in the
United States with K.P.C.A. In October 2021, it became clear to Petitioner that
Respondent had no intentions of ever returning. This petition was filed on June
9, 2022 pursuant to Article 3 of the Convention. The
Court found that the retention of K.P.C.A. in the United States as of June 18,
2021 was wrongful. It further finds that Respondent did not meet her burden of
proving an affirmative defense under the Convention. K.P.C.A. did not
articulate a particularized objection to returning to Colombia sufficient to
meet the mature-child-objection defense. Respondent failed to meet her burden
as to this affirmative defense. Respondent failed to meet her burden
concerning consent. Nor was there evidence presented of formal acquiescence,
such as testimony in a judicial proceeding or a convincing written renunciation
of rights. Respondent raised the well-settled
defense, but the Court found that it is not available to her as a matter of law
since Petitioner filed his Petition within one year of the wrongful retention.
Pursuant to Article 13(b) of the Convention, courts are not required to order a
child to return where “there is a grave risk that his or her return would
expose the child to physical or psychological harm or otherwise place the child
in an intolerable situation.” Respondent bears the burden of proving this
defense by clear and convincing evidence. Respondent put forth minimal evidence
in support. She submitted the United States State Department’s travel advisory
for Colombia as well as some evidence that Petitioner had previous issues with
drugs and alcohol. Both Respondent and K.P.C.A. stated that they had never
witnessed any crime or act of terrorism in Colombia, or any reasonable risk of
harm at the hands of Petitioner. This did not meet the standard to show that
K.P.C.A. would be in a grave risk of harm if returned to Colombia.
Recent Hague Convention District Court Cases - Vonnahme v. Lugo, 2022 WL 3701578, (District Court, D. Nevada, 2022).
[Germany] [Petition granted] [Rights of custody]
In Vonnahme v. Lugo, 2022 WL 3701578, (District Court, D. Nevada, 2022) the couple separated in 2014, and Vonnahme pursued a divorce in Cuba in 2015. That divorce was granted, and the decree established that “patria potestas” (parental authority) would remain with both parties, while “guardia y cuidada” (custody and care) would remain with Lugo. Later that year, Vonnahme applied to have the divorce recognized in Germany. The Dusseldorf High Regional Court recognized the Cuban decree to the extent that the parties were divorced, but it did not mention custody rights. The parties’ Cuban divorce decree stated that “[t]he custody and care of the minor daughter of the spouses ... remain with the mother, with parental authority remaining with both parents” and goes on to explain that the father must pay child support and “may visit the daughter as he pleases, without disturbing the times of sleep and meals; he can go for a walk with her.” The original Spanish-language version of the decree makes Lugo responsible for the “guardia y cuidado” of the child, while “patria potestas” remains with both parents. The court observed that American courts have explained that patria potestas, a term of art in many Spanish-speaking countries, “has consistently and rightly been recognized as a right of custody under the Hague Convention.” Cuba’s recognition of patria potestas similarly qualified. Cuban law defines “patria potestas” to include extensive rights and duties, including the duties to provide children with a stable home, arrange for their education, care for their property, and represent them in judicial actions. It also refers to “guardia y cuidado” rights when parents no longer live together and uses the term to define which parent the child will more permanently live with. But awarding one parent the rights to guardianship and care of a child does not terminate the other parent’s patria potestas rights. The Cuban Family Code also states that, in the event of divorce, the “court will grant patria potestas, establishing as a rule that both parents shall retain it over their minors.” Lugo and Vonnahme’s Cuban decree, recognized joint patria potestas rights while also specifying some visitation rights. So, this decree does not “eliminate any basis for relying on patria potestas,” because the decree itself recognizes Vonnahme’s patria potestas rights. The court found that, either under operation of Germany’s automatic assumption of joint custody or Germany’s implicit recognition of the Cuban divorce decree, Vonnahme had custody rights under the Hague Convention.
Recent Hague Convention District Court Cases - Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022)
[Australia.] [Petition denied]
In Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022) the Court concluded the children were habitually resident in Australia at the time of their removal. Petitioner failed to establish the other two elements of a prima facie case by a preponderance of the evidence. First, Petitioner failed to show what custody rights, if any, he retained under the Australian Family Law Act while the protection order was in effect—a prerequisite to establishing that the children’s removal was in breach of such rights. No evidence or testimony was offered at the hearing as to this matter. Given the breadth of the protection order, the Court declined to assume that such remaining rights were substantial enough that Respondent’s removal of the children breached his rights. Second, Petitioner failed to show he was exercising his custody rights at the time of removal. The Court acknowledged that a petitioner’s burden of proof on this element is minimal in the ordinary case. See Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996) (“[I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.”). And the Court found there was no evidence that Petitioner ever clearly and unequivocally declared any intention to abandon the children. However, in addition to failing specify what custody rights he still retained, Petitioner also failed to explain how he could exercise such rights while maintaining one hundred meters of separation between him and where the children live, work, or frequent, and without contacting them or arranging for others to contact them (other than through a lawyer) for a five-year period. Given this looming impossibility, the Court found that Petitioner’s contention that he would continue to be exercising his custody rights but for Respondent’s wrongful removal and retention of the children was a fiction. In fact, because of the protection order, he was no longer exercising his custody rights at the time of removal.
Recent Hague Convention District Court Cases - Romanov v. Soto, 2022 WL 3646325, (District Court, M.D. Florida, 2022)
[Canada] [Fathers Petition for return granted] [ Motion for Petitioner’s Attorney’s Fees and Costs Pursuant to 22 USC § 9007(b)(3)]
In Romanov v. Soto, 2022 WL 3646325, (District Court, M.D. Florida, 2022) the Court found that under ICARA, the Father was presumptively entitled to a recovery of necessary expenses in this action because the Court ordered the return of the Children to Canada. The Mother had not presented any evidence that she believed in good faith that her actions were legal or justified. The Mother did not submit financial information and did not prove that any award of fees would be clearly inappropriate because of her financial circumstances. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018)) The Mother has not produced a financial affidavit. Nevertheless, the Court held that it may reconsider the Mother’s financial circumstances when determining the amount of fees to be awarded. The Mother could provide the Court with additional information regarding the question of whether awarding the full amount of the Father’s requested fees and expenses would be clearly inappropriate. The Mother had not demonstrated that any award of expenses would be clearly inappropriate. Therefore, the Court found that the Motion should be granted to the extent that the Father was entitled to an award of necessary expenses, “including court costs, legal fees, ... and transportation costs related to the return of the [Children].” 22 U.S.C. § 9007(b)(3). The Court directed the parties to confer as to the amount of expenses to be awarded, and the Father was given forty-five days to file a supplemental motion.
Saturday, August 13, 2022
Recent Hague Convention District Court Cases - Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022)
[Honduras] [Habitual residence] [Petition granted]
In Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022) the court granted the petition of Soguey Aracely Ariza Lopez (“Ariza”) against Respondent Kelly Christopher Ash (“Ash”) for the return MCAA to Honduras. MCAA was born in 2012 in Utila, Honduras. Ash was not the biological father of MCAA, but his name appeared on the child’s birth certificate.. Ash moved back to the United States in 2017. On November 8, 2021, Ash and Ariza entered into a Settlement Agreement (“the Settlement Agreement”) in which Ariza was granted full custody of the child and Ash was prohibited from taking the child out of the country without prior authorization from Ariza. The Settlement Agreement explicitly authorized Ash to travel with the child to Tegucigalpa, Honduras, on November 9 and 10, 2021, to go to the American Embassy then return to Roaton, Bay Islands. The Settlement Agreement prohibited Ash from removing the child from the country at this time without prior authorization. Ash traveled with MCAA to the capital city on November 9, 2021. By November 11, 2022, Ash had not return to Roatan with MCAA. Ariza had little to no contact with MCAA at this time Ariza confirmed, that the child was removed from the country on November 9, 2022. Prior to his removal by Ash in November 2021, MCAA lived his entire life in Honduras.. The court found that the habitual residence of the child was Honduras. It rejected Ash’s argument that Ariza was not exercising custody rights at the time of removal and that she consented or acquiesced to MCAA’s removal. These arguments were unsupported. The Court reached a similar conclusion as to Ash’s argument that the child objected to leaving the United States and wished to remain with his father. It found that any apprehension the child had towards returning to Honduras had been fostered by Ash in an attempt to keep the child in the United States. Ash contended that MCAA should not return to Honduras because he was in grave risk of serious injury or harm there. The Court found his argument lacking in particularity and legitimacy. Ash could not point to a specific, real risk to the child but instead painted the whole of Honduras as an unsafe place with a bad educational systemSunday, August 7, 2022
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).
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.
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
20th, 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.
Sunday, July 31, 2022
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.
Saturday, June 25, 2022
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]
Wednesday, June 15, 2022
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.
Wednesday, May 25, 2022
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.
Sunday, May 22, 2022
Dumitrascu, on behalf of A.M.B.D v. Dumitrascu, Not Reported in Fed. Rptr., 2022 WL 1529624 (Tenth Circuit, 2022)
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.