Recent Hague Convention District Court Cases - Castang v Jeong-Eun Kim, 2023 WL 1927027 (N.D. Georgia, 2023)

 

[France][Habitual residence] [Wrongful removal][Petition granted]

     In Castang v Jeong-Eun Kim, 2023 WL 1927027 (N.D. Georgia, 2023) the Court concluded that Plaintiff had shown that the Child was wrongfully removed from the Child’s habitual residence in France in violation of Plaintiff's custodial rights. The Plaintiff’s petition was  granted and the Child was ordered to be returned to France 

 

Plaintiff filed this case against Defendant on December 30, 2022. Plaintiff was the Child’s father and Defendant was the Child’s mother. In 2014, Plaintiff and Defendant met in Atlanta, Georgia, and began a romantic relationship. In 2017, Defendant became pregnant with the Child. In March 2018, the Parties decided to relocate to France, where Plaintiff was from and where his family resided. The Child was born in France in July 2018. The Child was a dual French and American citizen by virtue of parentage and bilingual, speaking both French and English. From the Child’s birth, both Parties and the Child resided in France, traveling only occasionally to the United States to visit Defendant’s family. The Child was now four-years-old.

 

Following the Child’s birth, Plaintiff and Defendant’s relationship began to deteriorate and eventually the Parties ended their romantic relationship. Defendant, however, continued to reside in France, as did the Child. On September 9, 2021, the French court entered the first custody order. This custody order granted joint parental authority to Plaintiff and Defendant. The defendant maintained primary custody of the Child, and Plaintiff had extensive visitation rights. The order required the Parties jointly to make major decisions such as “schooling and career guidance, religion, health, [and] authorization to practice dangerous sports.” The September 9, 2021, Order anticipated a possibility that Defendant and the Child would move to the United States. Following the further breakdown of the relationship (including physical⁴ and verbal threats by Defendant against Plaintiff and his family to remove the Child from France and sever Plaintiff’s relationship with the Child), Plaintiff initiated a second custody proceeding. The French court thereafter issued a second custody order on May 17, 2022, which maintained the first order’s determinations on joint parental authority and Defendant’s primary custody rights. The second order, also critically imposed a “ban on the [C] child leaving French territory without the authorization of both parents.”

 

In addition to the second order’s exit ban, Plaintiff also obtained a temporary (15-day) travel ban on May 6, 2022, and a permanent travel ban from the Montpellier Court of Law on May 31, 2022. The permanent ban further specified parental authorization required a “declaration [be] made in a police station... at least five days before the departure.” Despite these bans, Defendant once attempted to leave France with the Child and was stopped at the border. In early June 2022, Defendant successfully removed the Child from France and came to the United States. Defendant circumvented the travel ban by first driving to Spain and then flying from Spain to the United States. Plaintiff discovered that Defendant and the Child were missing when he went to Defendant’s residence to pick up the Child and only found Defendant’s dog and Defendant’s left-behind belongings.

 

Defendant claimed and submitted evidence that Plaintiff knew and gave consent (in email and over the phone) for her departure with the Child to the United States. Plaintiff does not dispute that he offered to pay for the plane tickets and to domesticate the French custody orders in the United States but contends that Defendant mocked and rejected these offers. When Defendant did depart from France, however, Plaintiff sent an email message stating, I guess you are on the move again. It was bound to happen, wasn’t it;-)? The only thing I hope you grasped if that you need to leave from a non [F]rench airport, otherwise you are going to get blocked again... ps: I still think it’s a terrible idea but ok. Defendant responded, “[Y]ou really thought I was stupid enough to try and leave from a French airport huh. you’re stupid for underestimating me. Spain is only a three hour car trip Igor. I would have taken the train but Border Police as well. The world doesn’t revolve around France....” While Plaintiff acknowledged that this email message could be construed as giving consent for the Child to be removed from France, he maintains the message was sent out of distress and was not serious, but misplaced sarcasm.

 

In the United States, Defendant and the Child initially stayed with Defendant’s father. Defendant’s father, however—who Defendant testifies suffers from mental health problems—eventually kicked Defendant and the Child out of his house. Defendant then turned to Plaintiff for financial assistance in the United States. Even with financial assistance from Plaintiff, Defendant struggled to find living arrangements, though there is some evidence she was eventually able to find an apartment. In the interim, Defendant and the Child lived in several Airbnb’s, all paid for by Plaintiff. Defendant did not secure employment while she was in the United States. She did indicate however that she had found a Montessori school for the Child.

 

Plaintiff traveled to the United States on July 19, 2022, where he found Defendant and reconnected with the Child. In early August 2022, however, Plaintiff took the Child back to France. Again, the Parties dispute if Defendant consented to Plaintiff taking the Child. Defendant maintains she was opposed to moving back to France with the Child, whereas Plaintiff submitted an email message from Defendant that stated, “I am not completely against France” and that she was “ok” with Plaintiff purchasing her and the Child a house in France. 

 

In August 2022, Defendant rejoined Plaintiff and the Child in France. Defendant stayed in Paris and traveled to South Korea to visit her grandmother, so the Child primarily remained in Plaintiff’s care. Defendant however contends that Plaintiff withheld the Child from her between August 2022 and November 2022. While in France from August 2022 and November 2022, Plaintiff and the Child lived with Plaintiff’s mother in a guest house. During this time, the Child was enrolled in a French school— to which Defendant had given written consent though Defendant maintains that her consent was given under duress. Plaintiff also initiated a third child custody proceeding in France in August 2022, which is still pending, again seeking full custody of the Child. On November 14, 2022, following an assembly for the Child, the Parties and the Child went to a cafe. While Plaintiff paid, Defendant took the Child, unbeknownst to Plaintiff, back to her residence (an Airbnb), and left again with the Child for the United States. This time, however, Defendant was not in communication with Plaintiff, and he did not know the Child’s whereabouts until December 2022. Once Plaintiff discovered the Child was in the United States, he initiated this ICARA suit for the return of the Child.

 

 

The Court observed that it became evident during the Parties’ presentation of the evidence that the habitual residence determination was  the essence of this case. The Court determined that if it finds the habitual residence of the Child is France, then Plaintiff has met his burden on the custodial elements — that is, he had rights of custody under French law and was exercising those rights at the time of the wrongful removal. In making this determination, the Court relied on the two French custody orders granting the Parties joint parental authority and requiring major decisions regarding the Child to be made jointly. The Court further found that s the custody orders’ visitation schedule—which allows Plaintiff extensive visitation: overnight weekly, many weekends, and holidays—is convincing evidence of Plaintiff’s custodial rights over the Child. The mutual consent required to remove the Child from France in the exit ban alone has been determined by the Supreme Court to constitute rights of custody. Abbott v. Abbott, 560 U.S. 1, 15, (2010) (“[T]he joint right to determine [a] child’s country of residence ... is a right of custody under the Convention.”). Thereby, these French legal arrangements are sufficient for the Court to determine that Plaintiff had rights of custody over the Child under French law. Moreover, the Parties agreed that Plaintiff exercised and was exercising his rights under the custody orders when the Child was removed from France—both in June 2022 and November 2022. Many witnesses testified to Plaintiff’s closeness and responsibility with the Child. Thus, if France is determined to be the habitual residence of the Child, then the Court must conclude that Plaintiff has met his burden of proving his custody rights and his exercise thereof of the Child. The Supreme Court’s 2020 decision in Monasky v. Taglieri, 140 S. Ct. 719 (2020), adopted a totality of the circumstances standard for habitual residence and gave further guidance for determining whether the totality of the circumstances had been proven. Generally, Monasky declares the habitual residence inquiry is to be “fact-sensitive,” and not “categorical.” Accordingly, “courts must be ‘sensitive to the unique circumstances of the case and informed by common sense.’ Indeed, “[n]o single fact... is dispositive across all cases.” Id.; see also id. at 728 (“The bottom line: There are no categorical requirements for establishing a child’s habitual residence ....”). The Supreme Court’s discussion emphasized particularly the age of the child and the ability of the child to “acclimate” to a particular place.. Thus, for younger children, “the intentions and circumstances of caregiving parents are relevant considerations.”  One such circumstance may appear when “an infant lived in a country only because a caregiving parent had been coerced into remaining there.” The Supreme Court specifically rejected an “actual agreement” requirement to determine habitual residence when the child is an infant “But a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ” the facts that the Majority articulated as potentially relevant are “a change in geography combined with the passage of an appreciable period of time, age of the child, immigration status of child and parent, academic activities, social engagements, participation in sports programs and excursions, meaningful connections with the people and places in the child’s new country, language proficiency, and location of personal belongings.”

 

The Court determined that it would be error to determine habitual residence in reference to a person (i.e., parent) instead of a country. Initially, the Court finds no support in Monasky (or other cases) suggesting a Child’s habitual residence could be determined in reference to a parent, not a country. Furthermore, the term itself—habitual residence—mostly obviously refers to a physical location, not the care of or ties to another person. Cf. Residence, Black’s Law Dictionary (11th Ed. 2019) (defining “residence” as “[t]he place where one actually lives” or “bodily presence plus an intention to make the place one’s home” or “[a] house or other fixed abode”).

 

Defendant stipulated that the Child’s habitual residence was France prior to the June 2022 removal of the Child to the United States. Thus, there are two relevant time periods for the Court to consider in its habitual residence determination: (1) habitual residence following Defendant’s June 2022 removal of the Child to the United States, and (2) habitual residence following Plaintiff’s August 2022 removal of the Child to France.

The first determination the Court must make is whether Plaintiff proved by a preponderance of the evidence that the Child’s habitual residence remained in France despite the Child residing in the United States from June 2022 until August 2022. The Court concluded that Plaintiff has met his burden. First, it is not insignificant that the Child resided in France for most of the Child’s life. The French custody orders also support that the Child’s habitual residence remained France even after Defendant removed the Child to the United States. The operative second custody order specifically disallows the Child’s removal from France without authorization from both parents., Defendant’s removal of the Child from France violate the French court’s exit ban, as it was not mutually made between the Parties.⁶ Thus, while the Eleventh Circuit’s old settled-intent test no longer is outcome determinative in determining habitual residence, the Court found that as a factor in the totality of the circumstances inquiry—and an enormously persuasive one here—both Parties did not intend for the Child to be moved to the United States. This finding, especially in conjunction with the French order requiring consent for the Child to travel, weighs heavily in favor of finding the Child’s habitual residence remained in France.  Other factors likewise contribute to the Court’s conclusion. First, Defendant came to the United States with the Child and did not establish any roots or community ties.  Finally, the Court considers the dynamics of the Parties’ relationship in its June 2022 habitual residence determination. Both Parties admit that they had created a “toxic” and “roller coaster” of a relational environment. Defendant remained in France for four years, mostly willingly and certainly without overt coercion to stay.

 

In sum, the aforementioned factors weighed in favor of finding that the habitual residence of the Child remained in France even following Defendant’s June 2022 removal of the Child to the United States. Thus, the Court concludes, as of June 2022, the habitual residence of the Child continued to be in France.

 

The Court next addressed whether any actions by the Parties during the time period between August 2022 and November 2022 ought to change the habitual residence of the Child being in France. The Court found none. To the contrary, during this period there was more evidence that the Child’s habitual residence was France. Accordingly, at the time of Defendant’s November 2022 removal of the Child, the Child’s habitual residence was France.  Plaintiff’s petition was granted.

 

 

 

Recent Hague Convention District Court Cases - Carlson v Carlson, 2023 WL 315518 ( D. Rhode Island, 2023)

 [Germany][Petition denied] [Age and Maturity Exception]

In Carlson v Carlson, 2023 WL 315518 ( D. Rhode Island, 2023) E.C. was a thirteen-year-old boy, embroiled in a custody dispute between his German mother and American father. The court denied the Petition for Return of E.C. to Germany.

 

E.C.’s parents were married in the United States in 2007 and E.C. was born two years later. When E.C. was just shy of eight years old, they divorced in Rhode Island, agreeing to joint legal custody and physical placement in Germany with his mother. The Final Judgment specified both E.C. and Anke would live in Germany, and they moved there in March 2015.  Since that time, and pursuant to agreement, E.C. visited Kurt frequently during the summer and school vacations. Kurt has generally accompanied him to and from Germany for these visits. E.C. visited his father extensively in the United States, sometimes accompanied by his mother, and Kurt visited E.C. in Germany. At one point in 2021, E.C. expressed a desire to live with his father. The parties agreed that he would move to the United States in the summer of 2022 to live with Kurt. In March 2022, Anke testified, E.C. had a change of heart and decided to spend the summer of 2022 with Kurt in Burrillville, but not move there permanently until 2023. E.C. did then journey to the U.S. for the summer of 2022. On August 11, 2022, the day of his scheduled return to Germany, E.C. declined to go home and, according to his father, broke down in the airport, refusing to board the plane. That day, when she discovered E.C. was not on the plane, Anke filed this petition pursuant to the Hague Convention, demanding his return. She also petitioned for physical placement of her son in Germany and filed a Motion to Modify the Final Judgment in the divorce proceedings. Those latter matters are pending disposition in the Rhode Island Family Court.

 

The Court found that the provisions of the Hague Convention apply here. E.C. was a child under the age of sixteen. Both his parents enjoy custodial rights by virtue of the Final Decree, Kufner v. Kufner, 519 F.3d 33, 39 (1st Cir. 2008), aff’g 480 F. Supp. 2d 491 (D.R.I. 2007), and they agreed Anke was exercising her custody rights at the time E.C. failed to return. They also agreed the country of his habitual residence was Germany. Finally, the parties agree that since August 11, 2022, E.C. has been wrongfully retained in the United States.

 

The “mature child exception” empowers a judicial authority to “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, Article 13. [T]he Convention also provides that the child’s views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests.Rodriguez v. Yanez, 817 F.3d 466, 475 (5th Cir. 2016), There are two parts to this standard: that the child is of sufficient maturity to express an opinion and that the child objects to return. The Court found that E.C. at 13 was of a sufficient age to have his wishes considered. See Falk v. Sinclair, 692 F. Supp. 2d 147, 165 (D.Me. 2010) (close question whether a “very bright” eight-year-old was sufficiently mature to invoke exception); Rodriguez, 817 F.3d at 478 (11-year-old); Garcia v. Pinelo, 808 F.3d 1158, 1167 (7th Cir. 2015) (11-year-old) Dubikovskyy v. Goun, 54 F.4th 1042 (8th Cir. 2022) (12-year-old). It was significant that, despite her protestation to the contrary now, in March 2022 Anke herself believed that E.C.’s then-desire to stay in Germany stemmed from a mature decision. The Court had a substantial opportunity to talk with E.C. in a comfortable and reassuring setting and found him sufficiently mature. E.C. demonstrated in the in-camera interview that he was an inciteful, articulate child who understood the nature of the proceedings and the significance of his role in them. He had both high comprehension and the ability to articulate his views and his reasons for them. He understands the consequences of the Court’s decision. He also had the maturity to appreciate the impact of the Court’s action on his parents. Further, neither parent exercised an undue influence over him.

 

 “A child’s objection is different from a child’s wishes, as would be considered in a custody hearing.” Colon v. Montufar, 470 F. Supp. 3d at 1296. The text of the Convention restricts the age and maturity exception to cases in which the child “objects” to being returned. A mere preference is not an objection, Rodriguez, 817 F.3d at 476-77, and is not sufficient. Tann v. Bennett, 648 F. Appx. 146, 149 (2d Cir. 2016); Romero v. Bahamonde, 857 Fed. Appx. 576, 583 (11th Cir. 2001). Only an objection is sufficient to trump the Convention’s strong presumption in favor of return.” The difference has been expressed as the difference between a generalized desire and a particularized objection. Custodio v. Samillan, 842 F.3d 1084, 1091 (8th Cir. 2016) (“particularized objection”); Vasconcelos v. Batista, 512 Fed. Appx. 403, 408 (5th Cir. 2013) (unpub) (reasons constituting objection were specific); Dubikovskyy, 54 F.4^th at 1048 (“particularized objection”). The Court found that E.C.’s reasons for protesting returning to Germany were  both strong and specific and that they constituted an objection within the meaning of the Convention. He articulated that objection consistently to his mother, his father, the GAL, the DCYF worker, and the Court.  His objections were specific and amounted to more than a generalized notion that life is “better” in the United States. His primary objection concerned his schooling in Germany. Tha is a serious matter to a 13-year-old and constitutes a specific reason why he feels return to Germany would not be in his best interests. It appeared to the Court that he objected to the living arrangements in Germany and at no time did Anke indicate those arrangements would change upon his return. In Germany, even though there are two bedrooms, he sleeps in the same bedroom as his mother, in a twin bed pushed up against hers. In Burrillville, he had his own room and, after some effort, had become accustomed to sleeping in it. Finally, he expressed that a return to Germany would show his views are not listened to and not respected. The Petition for Return was denied.

 

Recent Hague Convention District Court Cases - Bikundwa v Ruyenzi, 2022 WL 18110809 (W.D. Washington, 2022)

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

 In Bikundwa v Ruyenzi, 2022 WL 18110809 (W.D. Washington, 2022) the court granted the petition of Aimee Kidogi Bikundwa and ordered the return of the minor children, N.R. and S.R., to Belgium..

The parties were married in Rwanda in 2006 and moved Belgium later that year. Petitioner currently resides in Belgium, while Respondent resides in Washington. The parties have two Belgian-born children: N.R., who was born in 2007, and S.R., who was born in 2008. Both children are Belgian citizens and lived in Belgium from birth to July 2022. Petitioner and Respondent divorced in 2012. Pursuant to a March 29, 2012 divorce and custody order issued by the Court of First Instance of Nivelles in Brussels, Belgium, Petitioner was granted primary custody of N.R. and S.R., with Respondent having visitation every other weekend and half of school vacations. After the parties divorced, Respondent moved to the Seattle area. On July 5, 2022, N.R. and S.R. traveled from Belgium to Washington in order to visit with Respondent for several weeks. Upon the children’s arrival in Washington, Respondent contacted Petitioner to let her know that the children arrived safely. This visit was conducted in accordance with the provisions of the parties’ Belgian custody order, and Petitioner remained in contact with the children throughout the visit. N.R. and S.R were due to return to Belgium on August 16, 2022 and the children’s return airfare had already been purchased. However, N.R. and S.R. did not return to Belgium as planned and instead, Respondent kept both children in his custody here in the United States. At the time, Respondent did not communicate with Petitioner regarding his decision to keep the children in the United States. Petitioner contacted N.R. and S.R. and learned that Respondent had refused to take the children to the airport. The day after Respondent failed to return the children to Belgium, Petitioner filed a child abduction complaint with Belgian authorities and sought legal counsel. On November 9, 2022, Petitioner filed a Petition for Return of the Child to the State of Habitual Residence, 

 

Here, both N.R. and S.R. were born in Belgium, their mother’s country of residence, and lived there from birth to July 2022, when they traveled to the United States for what was intended to be a several-week visit with Respondent. Given the children’s well-established prior residence in Belgium, Petitioner’s long-standing residence in Belgium, and the Belgian order granting primary custody of the children to Petitioner, the Court finds that N.R. and S.R. were habitual residents of Belgium.  Petitioner has established by a preponderance of the evidence that the retention of the children beginning in August 2022 was wrongful. The March 29, 2012 order issued by the Court of First Instance of Nivelles establishes that Petitioner was granted primary custody of the children, while Respondent was granted “secondary” custody, with visitation every other weekend and split school vacations. see also 22 U.S.C. § 9005 (Belgian order may be admissible in court without authentication. Further, at the time that Respondent retained the children in Washington, Petitioner was in fact exercising her rights under the Belgian custody order.

 Respondent makes allegations of abuse of N.R. and S.R. at the hands of Petitioner and Petitioner’s alleged current husband. He states that his children are being abused and tortured in Petitioner’s care. Here, no credible evidence of abuse has been submitted to the Court. Respondent had not established that it would be clearly inappropriate for him to pay for the costs associated with the children’s return to Belgium. Accordingly, the Court ordered Respondent to bear the costs of any and all transportation required to return the children to Belgium, including all airfare costs incurred by Petitioner to attend the December 21, 2022 hearing. Further, Petitioner could file a motion for litigation costs and attorney’s fees within 15 days of the date of this Order and Respondent could file objections or otherwise respond, as allowed by applicable law.

 

Recent Hague Convention District Court Cases - Argueta v Argueta-Ugalde, 2023 WL 1466820, (E.D. Michigan, 2023)

 [Brazil][Habitual Residence] [Petition granted]

In Argueta v Argueta-Ugalde, 2023 WL 1466820, (E.D. Michigan, 2023) Petitioner alleged that on November 6, 2022, Respondent wrongfully retained their shared minor child M.A. (“M.A.”) and her two children from a previous marriage in the United States of America.1 The Court found that Petitioner has demonstrated a prime facie case for wrongful retention under the Hague Convention, and therefore grants the Petition.

 

Petitioner Williane Rodrigues Dos Santos Argueta is a Brazilian citizen. Respondent Omar Argueta-Ugalde is a Mexican citizen. Respondent began working and living in Brazil on a temporary work visa in 2015. The parties began a romantic relationship and were married on August 17, 2018. (In August of 2018, M.A. was born. She has two older siblings on her mother’s side that were born in Brazil. The parties purchased real property in Brazil in either 2018 or 2019, which was used as a family home until at least June 2019. On June 4, 2019, the parties traveled with all three children to China for Respondent’s work assignment. Petitioner and the children left due to the Covid-19 pandemic and associated restrictions in China. Petitioner and the children remained in Brazil until September 20, 2020. On September 20, 2020, Petitioner and the children returned to China. The parties remained in China until June 20, 2021, after which Petitioner and the children returned to Brazil.  On November 28, 2021, the parties and children reunited in Mexico. On January 24, 2022, Petitioner returned to Brazil, while all three children remained in Mexico with. Petitioner returned to Mexico the first week of May 2022, after which she again traveled alone to Argentina from June 8, 2022, to July 2, 2022. Petitioner arrived back in Mexico on July 2, 2022, where the parties remained together as a family until July 31, 2022. On July 31, 2022, the parties and the children departed for the United States. On August 24, 2022, Petitioner flew to Brazil alone and returned to Michigan on September 16, 2022. Nevertheless, on November 3, 2022, Petitioner asserts she was served with divorce papers that Respondent filed in Michigan in which he was seeking sole legal and physical custody of M.A. Petitioner maintains this was a shock to her, as they had agreed to remain in Michigan as a family until January 2023, with divorce to be reconvened at a later time for the benefit of Respondent’s image and M.A. On November 6, 2022, Petitioner returned to Brazil because she felt she had no support in Michigan, especially given the fact she does not speak English. on November 17, 2022, Petitioner requested by text message that the children be sent to Brazil by November 20, 2022. The children were not returned by this date, but arrangements were made for the elder two children to be returned. M.A. still resides in the United States with Respondent. Accordingly, on November 18, 2022, Petitioner initiated the Hague process in Brazil. Thereafter, on November 22, 2022, Petitioner filed the instant Petition, and Respondent was served on December 1, 2022. 

 The court observed that a child’s habitual residence depends on the totality of the circumstances specific to each case, not on categorical requirements such as an actual agreement between the two parents. See Monasky,140 S. Ct. at 723. Wherever the child is at home at the time of removal or retention, is the child’s habitual residence. A child’s residence in another country only becomes “habitual” when it is more than transitory, and there is some degree of integration in a social and family environment “Accordingly, the Sixth Circuit instructs courts to focus on the child, rather than the parents, and examine past experience, not future intentions. Only a change in geography and the passage of time may establish a new habitual residence.” Tsimhoni v. Eibschitz-Tsimhoni, No. 10-10308, 2010 WL 11541986, at *5 (E.D. Mich. Mar. 26, 2010) (quoting Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993)). Furthermore, [t]his fact-driven inquiry must be sensitive to the unique circumstances of the case and informed by common sense. For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases.

Monasky, 140 S. Ct. at 727.

 

The facts of this case were complex given how much the parties and M.A. have traveled over the course of her lifetime. To address this type of scenario, the Sixth Circuit in Robert v. Tesson employed a comparative analysis approach. 507 F.3d 981 (6th Cir. 2007). To elaborate, the Sixth Circuit compared the children’s perceptions of and experiences in both France and the United States because the parties alternated living between the two for extended periods of time. Id. As such, the Sixth Circuit found it necessary to compare the children’s connections to both nations to determine their habitual residence. The Court found the facts of this case to be more similar to the facts of Robert given how much M.A. h moved in her lifetime, and thus will apply the comparative analysis approach in determining her habitual residence. In applying this type of analysis, the Court concluded that up until M.A.’s departure to the United States from Mexico on July 31, 2022, her habitual residence was Brazil. In the midst of all of M.A.’s relocations, Brazil remained the only constant.

Monasky instructs the Court to evaluate both the child’s acclimation and shared parental intent when evaluating the habitual residence of a young child. Monasky, 140 S. Ct. at 727. Incorporating the latter into the analysis yields the same result. First, during the relevant period of M.A.’s life, the parties kept their family home in Brazil, albeit as a rental property for at least a portion of their time abroad. The parties also purchased a second home in Brazil. Further, Petitioner maintained her businesses in Brazil while abroad, which were partially funded by Respondent. This lends to the notion that the parties intended Brazil to be the family home.

 The remaining question was whether or not M.A.’s habitual residence changed from Brazil to the United States when she departed from Mexico on July 31, 2022. See Robert v. Tesson, 507 F.3d 981, 997 (6th Cir. 2007). In order to properly determine the habitual residence of a child in wrongful retention cases, courts must first determine the date of the retention, and then determine if this retention was wrongful depending on the habitual residence analysis outcome.. Courts in this Circuit have applied two tests:1. The date which the child remains with the abducting parent despite the clearly communicated desire of the left-behind parent to have the child returned; or 2. When the acts of the abducting parent are so unequivocal that the left-behind parent knows or should know, that the child will not be returned. Lopez Moreno v. Zank, 456 F. Supp. 3d 904, 908 (W.D. Mich. 2020). The court found for purposes of a habitual residence analysis—the date of retention to be December 1, 2022.This makes the relevant length of M.A.’s life in the United States four months. These facts are not sufficient to overcome the overwhelming evidence suggesting Brazil remained M.A.’s habitual residence under both the acclimation and shared parental intent standard. Regarding acclimation, M.A. video called her family in Brazil at minimum three times per week. This is material for a child, especially one that has relocated so many times in her life. Be it through her repeated physical presence in Brazil or her connection with her family and community there while abroad, the Court found that per M.A.’s perception, her habitual residence wass Brazil. Regarding the shared parental intent standard, the Court finds that the parties’ last shared intent was to relocate to Brazil in January of 2023. This is again evidenced by Petitioner’s businesses—which were partially funded by Respondent—remaining operational during her time abroad.  Under Article 1.634 of the Brazilian Civil Code, each parent, regardless of marital status, has the right to participate in the determination of their child’s permanent residence.  Petitioner was exercising custody rights as contemplated by the Convention. 

Recent Hague Convention District Court Cases - Davis v Lake, 2022 WL 17843545 (District Court, W.D. Virginia, 2022) [Anguilla][Consent][Petition Denied]

 [Anguilla][Consent][Petition Denied]

In Davis v Lake, 2022 WL 17843545 (District Court, W.D. Virginia, 2022) the district court denied the petition for the return of the parties’ two children to Anguilla. The Court denied the petition, finding that Petitioner had established a prima facie case for wrongful removal, but Respondent adequately showed Petitioner consented to children’s removal from Anguilla.

 

The Court noted that Anguilla and St. Martin are separate island territories in the eastern Caribbean Sea—and travel between the two islands involved only an approximately twenty-five-minute ferry ride. The children had St. Martin birth certificates and French European passports. Petitioner established a prima facie case. The court stated that if  Petitioner “had consented to or subsequently acquiesced in the removal,” the children do not have to be returned. Miller, 240 F.3d 392 at 399 (quoting Hague Convention, art. 13a). Consent or acquiescence must be shown by a preponderance of the evidence. Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017). The Fourth Circuit has held that “[t]o establish consent, we focus on the parties’ conduct prior to the removal or retention,” though “a petitioner’s conduct after removal can further inform whether [ ]he consented at the time of removal.” The Court found that Respondent established that Petitioner consented in the children’s removal. Respondent testified that in January 2020 she told Petitioner about her engagement, intended marriage, and plan to relocate to Virginia with the children. And she testified that at that time, Petitioner consented to their move to Virginia and further offered that he and Respondent each be responsible for the purchase of a ticket per child. The Court found Respondent’s testimony on this issue and her description of her other communications with Petitioner to be forthright and credible, as well as supported by contemporaneous evidence. When Petitioner did not answer Respondent’s later call attempting to further discuss the trip with him, she offered to meet him with the children in St. Martin to discuss the trip in person. Petitioner presented a contrary narrative. He testified that, when Respondent brought up relocation, Petitioner merely sought to initiate a follow-up conversation—but that he hadn’t consented to their move. However, the Court found Petitioner’s testimony lacking in credibility, forthrightness, and candor, and further it was belied by documentary evidence. Significantly, prior to the children’s relocation, Petitioner expressly acknowledged Respondent’s plans to move with them, as shown by his text message to her on September 8, 2021: In January of 2020, you had indicated to me that you would be moving during the summer of that same year to the USA to live fulltime [sic] with the children. We have had a pandemic since than [sic] However, when I tried to inquire this January 2021, who [sic] did not give me any information on what those previous plans were for the short nor long term. Can you kindly inform me accordingly if the children will be still relocating to the USA and if so, when most likely. The content of this text message is aligned with and supported Respondent’s testimony that Petitioner was aware of and agreed to their move, and at most he sought details on their plans—it in no way indicates that Petitioner had any objection to their move. And by not objecting despite clear knowledge of the planned move, Petitioner further bolstered Respondent’s credible testimony that Petitioner consented to their move to Virginia. The Court found that “a preponderance of the evidence demonstrates Petitioner consented to the [children’s] removal to the United States.” Padilla, 850 F.3d at 176–77. Thus, Respondent established the consent defense by a preponderance of the evidence, and the Court found that the children should not be returned to Anguilla

Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) [Attorney for Child Appointment]

 

In Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) on October 24, 2022, attorney Sarah Phillips of the law firm Simpson Thatcher & Bartlett, LLP filed a notice of appearance in this Hague Convention case on behalf of the minor children, R.A.L. and S.M.L. On October 25, 2022, the Court provisionally appointed Simpson Thatcher as counsel for the children, pending briefing by the parties. The Court observed that Petitioner generally objected to the appointment of an attorney for the children, as “the Mother has several attorneys on her team who are tasked of rendering proof” related to the defenses that pertain to the children, such as “grave risk of harm” and the children’s wishes, and “the defenses asserted by the Mother are identical (duplicative) if the issues that would need to be addressed by the Attorney for the Children.” The Court disagreed. Appointing independent counsel for the children in this case was “consistent” with the procedures “adopted by district courts in Hague Convention cases.” Johnson v. Johnson, No. 11 Civ. 37, 2011 WL 569876, at *2 (S.D.N.Y. Feb. 10, 2011); see also Sanchez v. R.G.L., 761 F.3d 495, 508 (5th Cir. 2014)) (quoting Chaffin v. Chaffin, 568 U.S. 165, 178 (2013)). This case presented complex and delicate issues that pertain to the children, and appointment of counsel was not only consistent with regular practice in Hague Convention cases, but is also warranted. This was particularly true where it is possible that one or more children may be questioned by the Court, whether in camera or otherwise. See McGovern v. McGovern, 58 A.D.3d 911, 915, 870 N.Y.S.2d 618, 622 (2009) The role of the children’s counsel here was quite limited. The scope of children’s counsel’s representation in a Hague Convention proceeding is limited to precisely [the] types of issues raised under the Convention. Counsel does not perform a best interests analysis or make custody-related recommendations. The role of the children’s counsel, would be to advance the children’s articulated wishes, assist the children in understanding the proceedings and to appear on their behalf as needed by the Court to assess the parties’ claims. For this limited purpose and for the needs of this case the appointment of counsel for the children was appropriate, rather than the appointment of a guardian ad litem. Out of an abundance of caution, the Court determined that it was appropriate to add court-appointed co-counsel with experience representing children in Hague Convention cases. The Court therefore appointed Professor Jennifer Baum, the Director of the Child Advocacy Clinic at St. John’s University School of Law, as co-counsel along with Simpson Thatcher for both minor children.

 

Dubikovskyy v Goun, --- F.4th ----, 2022 WL 17421509 (Eighth Circuit, 2022) [Switzerland] [Age and Maturity Exception] [Petition granted]

 

In Dubikovskyy v Goun, --- F.4th ----, 2022 WL 17421509 (Eighth Circuit, 2022)  Elena Goun violated her joint custody agreement with Vladyslav Dubikovskyy by traveling from Switzerland to the United States with their then-12-year-old daughter, M.D., in July 2020. Dubikovskyy filed a petition seeking M.D.’s return to Switzerland, pursuant to the Hague Convention. After an evidentiary hearing on the merits, the district court denied the petition based on the mature child defense, finding that M.D. was of sufficient age and maturity such that the court should take account of her views and that she objected to returning to Switzerland. The Eight Circuit reversed the judgment of the district court and remanded the case with directions to grant the petition for the return of M.D. under the Hague Convention on the Civil Aspects of International Child Abduction.

 Dubikovskyy, a citizen of Ukraine, and Goun, a citizen of Russia, married in December 2007 while living in California. They have one child together, M.D., who was born in June 2008 in California and is a United States citizen. In 2011, the family moved to Lausanne, Switzerland, where Goun had taken a job as a chemistry professor at a university, and became permanent Swiss residents. On July 28, 2020, Dubikovskyy learned Goun and M.D. had traveled to the United States. Two days later, he petitioned a Swiss court to order their return to Switzerland, and on August 4, the court ordered Goun to return M.D. to Switzerland in time for her to start the school year. On August 13, 2020, Goun petitioned a Swiss court to transfer M.D.’s residence to the United States on the grounds that M.D. had decided she wanted to stay in Missouri. The Swiss court denied the petition and characterized Goun’s actions as an illegal abduction. The court found that Goun violated the custody arrangement and granted Dubikovskyy the sole right to determine M.D.’s residence. The ruling was upheld on appeal on September 11, 2020. Dubikovskyy also initiated criminal proceedings against Goun in Switzerland, and there is a warrant for Goun’s arrest if she returns to Switzerland or any other country in the Schengen Area. Despite the Swiss court’s ruling, Goun and M.D. remained in Columbia, Missouri, with M.D.’s half-sister and Goun’s partner, and M.D. started attending middle school in Missouri when the 2020–21 school year began. On October 23, 2020, Dubikovskyy filed a petition with the United States District Court for the Western District of Missouri seeking return of M.D. to Switzerland pursuant to the Hague Convention, implemented through the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–11. Dubikovskyy alleged that M.D.’s country of habitual residence is Switzerland and that Goun’s actions constitute an unlawful retention. He asked that the court order M.D. be returned to Switzerland. In response, Goun asserted two affirmative defenses—that there is a grave risk that M.D. would be exposed to physical or psychological harm or otherwise be in an intolerable situation if she returned to Switzerland (the grave risk of harm defense), and that M.D. objects to being returned and has attained an age and degree of maturity such that the court should take account of her views (the mature child defense).

 

On December 2, 2020, the district court held an evidentiary hearing on the merits of the petition. Two days after the evidentiary hearing, the district court, pursuant to Federal Rule of Evidence 706,³ appointed psychologist Dr. James Straub to “provide information about the maturity and independence of [M.D.]” because the court was concerned that M.D. may have been unduly influenced by her mother when she was removed from Switzerland. Dubikovskyy objected to Dr. Straub’s appointment. Notwithstanding that objection, Dr. Straub examined M.D. and submitted a written report to the court on December 14, 2020. After receiving the report, the district court again interviewed M.D. in camera, this time outside the presence of counsel. On January 7, 2021, the district court denied Dubikovskyy’s petition, relying on the mature child defense. The district court found that M.D. was “sufficiently mature and independent [such that the court could] account for her views” and that M.D. had “stated an objection to returning to Switzerland,” with reasons similar to those “an adult might consider when deciding where to live, i.e.[,] family responsibilities, comfort, and opportunities to pursue goals that are meaningful and inspiring to them.” The district court noted M.D. “was reluctant to use the word objection because she did not want to make her father sad,” but nonetheless concluded that “there is no doubt based on her words and expressions that she does not want to return to Switzerland.” The court further explained it was “confident M.D.’s decision [was] made independently of either parent’s influence.” On February 5, 2021, Dubikovskyy appealed.⁴

 

The Eighth Circuit found that there was no dispute that Dubikovskyy has established a prima facie case; the sole issue on appeal is whether the district court erred by applying one of the narrow exceptions—the mature child defense—to deny his petition. The mature child defense comes from Article 13 of the Hague Convention, which provides that a judicial or administrative authority may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” For the mature child defense to apply, the respondent must establish by a preponderance of the evidence that (1) the child has attained an age and degree of maturity at which it is appropriate to take account of her views, and (2) the child objects to being returned. Custodio, 842 F.3d at 1089 (citing Hague Convention art. 13); see also 22 U.S.C. § 9003(e)(2)(B). If a child is found to be mature, the reasons the child objects to being returned are immaterial. See Custodio, 842 F.3d at 1091 (adopting the rule from Rodriguez, 817 F.3d at 475–76, that the mature child defense may apply “whatever the reason for the child’s objection”). The Court construes the mature child defense narrowly. Id., 842 F.3d at 1089. A stricter standard also applies when a child’s views are the sole reason for denying repatriation. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007).

 

          On appeal, Dubikovskyy did not contest the district court’s finding that M.D. had attained an age and degree of maturity at which it is appropriate to take account of her views. Rather, Dubikovskyy argued that the district court erred at the second step by accepting M.D.’s preference for staying in Missouri, rather than requiring an objection to returning to Switzerland. Indeed, “[a] preference is not an objection,” and there is a “substantive difference between preferring to live in one of two countries ... and affirmatively objecting to returning to one country.” Rodriguez, 817 F.3d at 476–77. Under the Hague Convention, a child’s preference or “generalized desire” to remain in the United States is insufficient to invoke the narrow mature child exception. See Tsai-Yi Yang, 499 F.3d at 279. Instead, the child’s testimony must include “particularized objections” to returning to the former country of residence. Id. The district court recognized the important distinction between a preference and an objection, citing a dictionary definition for objection, “a reason, ground, or cause for expressing opposition,” and noting that an objection “connotes more than a preference for the alternative.” M.D. testified that she “would love to live [in Missouri] because [she has a] lot of things here, and it would be really great for [her] dad to come [to Missouri] for vacation.” When asked about returning to Switzerland, however, she said that she thought she would be “okay,” and that she was not afraid to go back there. But she added that she would be “unhappy” if she had to move to Switzerland, and she gave several reasons: she would not be able to attend the same school as her close friend who lived in a different Swiss town; she could not bring her dog with her; she would miss her mother, her half-sister, and her friends in Missouri; and it was more difficult to ride horses in Switzerland.

 

In an effort to determine whether M.D. truly “objected” to returning to Switzerland, the district court asked her if she knew the meaning of the words “objection” and “preference.” M.D., speaking in a second language,⁵ said she did not understand “object.” The court tried to explain the difference between the two words by offering M.D. some examples: “I object to cleaning the bathroom.” “I object to my little sister yelling in my ears.” “Do you object to getting up early in the morning to go to school?” The court continued by saying that “[a]n objection is something you don’t want. You’re displeased. One is stronger than the other.” When the court then asked M.D. whether she “objected” to returning to Switzerland or whether she simply “preferred” one location over the other, M.D. was equivocal. Her most complete answer was: “I would say it’s, like, middle, but, yeah. Maybe I object — I don’t know. ... I mean, I — I’m kind of in the middle, but I think I — I’m more on the object — object side. I don’t know. Objection. Yeah.” The court asked M.D. why she hesitated in her answer, and M.D. responded, “I don’t know. It’s, like, hard ....”

 

The Eighth Circuit recognized the challenges that come with deciphering the difference between an objection and a preference in a child’s testimony. If given two choices, country A and country B, an objection to living in A will almost always (although not invariably) indicate a preference for living in B. But a preference to live in B does not necessarily indicate an objection to living in A. In this case, M.D.’s testimony failed to show by a preponderance of the evidence that she “objected” to returning to Switzerland. Rather, when asked why she would be “unhappy,” or “dissatisfied” if she had to go back to Switzerland, M.D. consistently responded with reasons why she preferred to stay in Missouri.⁶ As to the district court’s discussion of M.D.’s above-average intelligence, strong personality, and well-developed sense of responsibility for her younger sibling and the feelings of others, such findings are relevant to whether the child has reached the age and maturity at which it is appropriate to consider her views on repatriation. But these observations do not speak to whether M.D. has in fact lodged an objection to being returned to Switzerland. Here, M.D.’s desire to remain in the United States was not coupled with a particularized objection to returning to Switzerland. As a result, it was insufficient to meet the strict standard that applies when the mature child defense is the sole grounds for denying an abducted child’s return. See Tsai-Yi Yang, 499 F.3d at 278. Because M.D. did not express a particularized objection to returning to Switzerland, instead describing a preference—for a variety of understandable reasons—to remain in the United States, the district court’s finding that M.D.’s statements constituted an objection within the meaning of the mature child defense was clearly erroneous. Custodio, 842 F.3d at 1089 (whether a mature child has objected to the return to her country of habitual residence is reviewed for clear error).

Recent Hague Convention District Court Cases - Soulier v Matsumoto, 2022 WL 17250549 (D. New Jersey, 2022)

 

[Belgium][Necessary Expenses] [Granted] 

In Soulier v Matsumoto, 2022 WL 17250549 (D. New Jersey, 2022) on July 8, 2022, the district court granted Petitioner’s application, and ordered that the Children be returned to Belgium, and also granted Petitioner leave to file this motion for attorney’s fees and costs. The Court granted the Petitioners motion for Counsel fees and Costs but reduced the amount requested. The  district court pointed out that in an action brought under section 9003 ... 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); see also Cillikova v. Cillik, Civ. No. 15-2823, 2016 WL 541134, at *3 (D.N.J. Feb. 9, 2016). Therefore, it is presumed that a prevailing ICARA petitioner will be awarded fees, unless the respondent establishes that the award would be clearly inappropriate. To determine whether the award demanded by the prevailing party would be clearly inappropriate, courts assess the opposing party’s financial circumstances, and whether such an award would significantly impair that party’s ability to provide for the child. See id. at *5;³ Hirts v. Hirts, 152 F. App’x 137, 139 (3d Cir. 2005); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004). Courts also consider a respondent’s basis for removing and/or retaining the child. See, e.g., Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013); Clarke v. Clarke, Civ. No. 08-690, 2008 WL 5191682, at *3 (E.D. Pa. Dec. 11, 2008) District courts also may apply equitable principles in determining such fees. See Ozaltin, 708 F.3d at 375. The Court reduces the block-billed entries for use of the vague “review of file” description, but otherwise concludes that the block-billed entries were  reasonable in terms of the time expended on the tasks performed. It also agreed with  Respondent that Petitioner’s counsel should not be allowed to charge his partner rate for tasks that non-lawyers could have performed.. “A claim by a lawyer for maximum rates for ... tasks [that can be] performed by administrative assistants, paralegals, or secretaries” is unreasonable. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). After accounting for the reductions via the lodestar analysis above, the Petitioner’s attorney’s fees were reduced to $76,620.00. The court rejected respondents argument that she had a reasonable basis for retaining the Children. However, it reduced the attorney’s fees by 20% because while Respondent was employed and lived with her parents through the litigation, she has few assets. Second, taking care of the Children may require that Respondent travel to Europe, or the Children visit the United States. Also, it was not apparent to the Court whether Respondent will have any financial obligations related to the Children after the parties resolve their custody dispute. A reduction was warranted in the amount of $15,324.00 (20% of the Court’s reduced total from its analysis. The Court granted Petitioner’s motion for attorney’s fees and costs in the reduced amount of $65,821.54, consisting of: $61,296.00 in attorney’s fees; $2,406.75 in travel expenses; and $2,118.79 in costs.