Saada v Golan, 2023 WL 1993538 (E.D. N.Y., 2023) - [Italy][ motion to amend the petition and add Morin Golan as a respondent granted.]

 

    In Saada v Golan, 2023 WL 1993538 (E.D. N.Y., 2023) the district court adopted Sections III, IV, V and VI of Judge Levy’s Report and Recommendation and reserved decision on Sections I and II.

 

          In 2018, the respondent, the mother of the minor B.A.S., abducted him from Italy and brought him to New York. On September 20, 2018, the petitioner, B.A.S.’s father, brought a petition pursuant to the Hague Convention. After a nine-day bench trial in early 2019, the district court found that B.A.S. was a habitual resident of Italy, and that while he would be subject to grave risk of harm upon repatriation arising from domestic violence between his parents, there were sufficient measures that would ameliorate the risk. Saada v. Golan, No. 18-CV-5292, 2019 WL 1317868, at *20 (E.D.N.Y. Mar. 22, 2019) (“Saada I”). The Supreme Court’s June 2022 decision held that the Second Circuit could not require district courts to consider ameliorative measures after a grave risk finding, but that district courts could do so as a matter of discretion. Golan v. Saada, 142 S. Ct. 1880, 1895 (2022). The Court remanded the case to clarify whether the court  would have considered ameliorative measures as a matter of discretion, and to “determine whether the measures in question are adequate to order return in light of its factual findings concerning the risk to B.A.S.” On August 31, 2022, using the Supreme Court’s framework, the district court granted the petition for a third time and ordered that B.A.S. be returned to Italy. Saada VII, 2022 WL 4115032, at *1. The respondent appealed that order to the Second Circuit.

 

While the appeal was pending, the respondent passed away unexpectedly on October 18, 2022. Two days later, on October 20, 2022, apparently without any contact with the petitioner, the respondent’s sister, Morin Golan, filed an ex parte petition in King’s County Family Court (the “Family Court,”) seeking custody of B.A.S. In particular, she stated that she wished “to have full custody of [B.A.S.],” and was “filing for emergency custody of the child, to allow more time to figure out the future and allow the child to process the recent traumatic events[.]”Although the Family Court judge was aware of the existence of this proceeding and of the existing orders of the Italian Court, it did not contact Italian authorities as required by New York Domestic Relations Law § 76-c. Instead, it granted temporary custody to Morin Golan, issued a protective order against the petitioner, and appointed the Children’s Law Center (“CLC”) to represent B.A.S. in connection with the Family Court proceedings.

 

On November 10, 2022, the Second Circuit dismissed the respondent’s appeal as moot, vacated the August 31, 2022 return order, and remanded the petition “with confidence” that this Court would “expeditiously address the Hague Convention petition in light of the changed circumstances.” In re B.A.S., 2022 WL 16936205, at *1. The Second Circuit also directed the Court to “entertain any motions for intervention or substitution of parties.”.

 

On November 16, 2022, Morin Golan moved to intervene in this matter pursuant to Federal Rule of Civil Procedure (“FRCP”) 24. (ECF No. 172.) CLC followed suit on November 30, 2022, seeking in the alternative to be appointed as B.A.S.’s guardian ad litem) On December 8, 2022, the petitioner moved to substitute Morin Golan as a respondent pursuant to FRCP 25, or to amend the petition under FRCP 15(a)(2) to add her as a respondent. The petitioner opposed CLC’s motion to intervene. In a separate submission, the petitioner moved to vacate the Family Court orders and to transfer B.A.S. to his care in New York during these proceedings.

 

On December 4 and 20, 2022, the district court referred the motions to Magistrate Judge Robert M. Levy. In his January 23, 2023 Report and Recommendation, Judge Levy recommended that I deny the motions for substitution and intervention, but grant the petitioner’s request to amend the petition to add Morin Golan as a respondent and to vacate the Family Court orders. In addition, Judge Levy recommended that the petitioner’s request for temporary custody of B.A.S. during the pendency of these proceedings be referred to the Italian court. On February 6, 2023, Morin Golan, CLC and the petitioner filed objections to Judge Levy’s report and recommendation. For the reasons below, I adopt Judge Levy’s Report and Recommendation in part, and reserve decision on whether to vacate the emergency orders of the Family Court and grant the petitioner temporary custody, because the parties cite facts in their objections that were not before Judge Levy.

 

 

In reviewing a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A party’s objections must be specific; where a party “makes only conclusory or general objections, or simply reiterates [the] original arguments, the Court reviews the [R & R] only for clear error. The district judge must evaluate proper objections de novo and “may accept, reject, or modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3). “[E]ven in a de novo review of a party’s specific objections, [however,] the court will not consider ‘arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. Moreover, “the district court is ‘permitted to adopt those sections of a magistrate judge’s report to which no specific objection is made, so long as those sections are not facially erroneous.’ ”

 

In light of recent developments, including in the Italian courts, which post-date Judge Levy’s Report and Recommendation, the court reserved judgement on the vacatur of the Family Court orders and temporary custody of B.A.S. pending a conference with the petitioner and Morin Golan, which will be scheduled in a separate order.

 

Judge Levy recommended that the court deny the petitioner’s motion to substitute Morin Golan as a respondent. Judge Levy observed that “Narkis Golan’s interest in defending against the Petition was extinguished upon her death; therefore, her estate does not have an interest in this case,” and concluded that Morin Golan could not be substituted as a party under FRCP 25 for this reason. The petitioner did not object to Judge’s Levy recommendation. Instead, Judge Levy recommended that the district court  grant the petitioner leave to amend the petition pursuant to FRCP 15(a) to add Morin Golan as a respondent, because the amendment was in the interests of justice, and would not cause undue delay or prejudice, a recommendation to which Morin Golan did not object. Finding no clear error in this analysis, the court adopted Judge Levy’s recommendation that the petitioner’s motion for substitution be denied, and that the motion to amend be granted.

 

The petitioner’s motion to amend the petition and add Morin Golan as a respondent was granted. The petitioner’s motion to substitute Morin Golan as a respondent, and the motions by the Children’s Law Center and Morin Golan to intervene were denied. The Court defered ruling on the petitioner’s motion to vacate the orders of the Kings County Family Court and requesting temporary custody over B.A.S. during the pendency of these proceedings.

 

1	A more complete factual and procedural history of this case before September 2022 is described in. Saada v. Golan, No. 18-cv-5292, 2022 WL 4115032, at *2-4, (E.D.N.Y. Aug 31, 2022) (“Saada VII”).

 

 

Royal Borough of Kensington and Chelsea v Bafna-Louis, 2023 WL 2387385 (S.D.N.Y., 2023) -[United Kingdom][Habitual Residence] [Petition granted as to younger child] [ Mature Child Exception]

 

In Royal Borough of Kensington and Chelsea v Bafna-Louis, 2023 WL 2387385 (S.D.N.Y., 2023) the Royal Borough of Kensington and Chelsea (the “RBKC”) brought a petition for the return of CBL and Baby L to the United Kingdom pursuant to the Hague Convention. The Court found that the RBKC had proven its entitlement to relief. The Court found based on an in-camera interview of the thirteen-year-old CBL that it was appropriate to defer to CBL’s preference not to be ordered to return to the United Kingdom.

 

The Court held a hearing on January 23, 24, and 25, 2023. Respondent Tara Bafna-Louis, the mother of CBL and Baby L was a citizen of the United States and Hungary who has long resided in London. She currently resided in Manhattan with CBL, age thirteen, and Baby L, age 16 months. After graduating from Georgetown University, she attended graduate school at Oxford University in England and remained in England for much of her adult life. Bafna-Louis gave birth to CBL in France in September 2009. CBL’s biological father maintained no contact with CBL and communicated that he wished to have no role in CBL’s upbringing. CBL is a citizen of the United States and Hungary. When CBL was a young child, he and Bafna-Louis relocated to New York City from approximately 2010 to 2013 or 2014, at which point they returned to London. CBL attended a private school in London that was an approximately eight-minute walk from the family home in the Belgravia neighborhood. Bafna-Louis gave birth to Baby L in London in October 2021. Baby L is a citizen of the United States and the United Kingdom. Individual-1 is the biological father of Baby L, his paternity had been disputed, Individual-1’s parental rights were the subject of ongoing court proceedings in London.

 

Shortly after Baby L’s birth, Bafna-Louis and the two boys came to the attention of social-services authorities in the City of Westminster. On the night of November 15, 2021, Bafna-Louis called law enforcement to report that Individual-2 was outside of her home. When police arrived, they observed that Bafna-Louis spoke with slurred speech and appeared disoriented and that she was holding Baby L in a precarious position. Bafna-Louis then dropped Baby L onto the wooden floor. Bafna-Louis and Baby L were taken by ambulance to Chelsea in Westminster Hospital and released. The RBKC is a local government authority within Greater London. At the time of CBL’s removal, the RBKC was both responsible for the administration of the child-protection plan and was the applicant in CBL’s Wardship Proceeding before the High Court of England and Wales. Under United Kingdom law, the RBKC also is delegated the authority to enforce the rights of the High Court relating to CBL and Baby L.

 

          The Court concluded that RBKC had standing under Article 8 of the Convention, which states in part that “[a]ny ... institution or other body claiming that a child has been removed or retained in breach of custody rights may apply ... to the Central Authority of any other Contracting State for assistance in securing the return of the child.” See also Article 3(a). In implementing the Convention, ICARA sets forth conditions for “[a]ny person” to file a petition for relief, and defines person to include “any ... institution, or other legal entity or body ....” 22 U.S.C. §§ 9003(b), 9002(5).

 

          The City of Westminster is a department of local government within Greater London. On or about January 6, 2022, a social work team for the City of Westminster held a child protection conference that led to the implementation of a Child Protection Plan for CBL and Baby L. At the time, Baby L was approximately two months old and CBL was twelve years old. The Westminster authorities were primarily worried about Bafna-Louis’s use of alcohol and how it might affect the two boys. The City of Westminster adopted a plan whereby a social worker would make a home visit at least every ten days to “see and speak to the child.” The City of Westminster would also provide alcohol-treatment services to Bafna-Louis. In April 2022, Bafna-Louis and CBL relocated within London, to the Bina Gardens neighborhood under the jurisdiction of the RBKC.

  

Bafna-Louis met Individual-1 in or around 2019. In a submission to the Central Family Court in London Bafna-Louis characterized Individual-1 as a “sperm donor” in her efforts to conceive a second child. Individual-1 acted as a cat sitter and kept a spare key to the family home. Beginning in late 2020, Individual-1’s behavior toward Bafna-Louis turned hostile. Bafna-Louis described occasions where Individual-1 menaced and attacked her. He once held his thumbs to her collarbone and restrained her movement for about 30 seconds. In another incident, he arrived unannounced while intoxicated and entered the home using his spare key. He ignored Bafna-Louis’s instructions to leave, then pushed a broken metal can into her forehead, leaving a bloody cut. Bafna-Louis testified that Individual-1 raped her on or about February 14, 2021. She testified that Individual-1 arrived to her home and that she felt unwell after drinking a juice that he served her. She had no memory of what then transpired, but found indicia of “[n]on-consensual sex that could have led to pregnancy.” Bafna-Louis did not report the rape to the police but instead informed the Westminster local authority. She also stated, “I had reported to the police not specifics, like without a name.” On or about December 15, 2021, Individual-1 commenced paternity proceedings against Bafna-Louis in the Family Court, asserting that he was the biological father of Baby L. Family Court granted a prohibited-steps order after Bafna-Louis had the opportunity to be heard. In an Order of March 10, 2022, the Family Court  stated, “The mother must not remove the child from the jurisdiction of England and Wales until further order.”  In boldfaced, underlined text, that Order also stated, “To Tara Bafna Louis: If you the within-named respondent do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.” It separately stated, in boldfaced text, “It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without leave of the court.”

 

Bafna-Louis also testified that Individual-2 raped her, and described Individual-2’s prolonged harassment campaign against her and CBL after she reported to local police that she was raped by Individual-2. Bafna-Louis asserted that she was “not in an intimate relationship” with Individual-2. She testified that they interacted in person for a total of five or six times, including a February 2021 visit to her home, when he cooked a meal and played chess. Bafna-Louis testified that Individual-2 raped her on April 1, 2021. She stated that she drank two or three glasses of white wine, and then blacked out as a result of her difficulty metabolizing alcohol. As described by Bafna-Louis, Individual-2’s subsequent messages identified their encounter as rape: “I can’t really describe how it came about. In fact, I didn’t even know that it had occurred until [Individual-2] sent pages and pages of WhatsApp messages describing exactly what had happened on that evening.” Bafna-Louis testified that Individual-2 became belligerent after Bafna-Louis reported the alleged rape to law enforcement. Individual-2 repeatedly called and rang the doorbell to the Bafna-Louis residence. He collected her mail and redelivered it with handwriting on the envelopes. He contacted her friends, family members, and CBL’s school administrators to call her “a slut” and threaten to “destroy our lives.” After Bafna-Louis moved to the United States, Individual-2 contacted her close friends, her mother, the doorman of her building and her gym. She stated that she contacted London police about Individual-2 “multiple times” but that “[t]hey really didn’t do very much” following his initial arrest.

 

          Individual-3 was a London-based barrister who, in late 2021 and early 2022, was briefly engaged to marry Bafna-Louis. For a period of time, Individual-3 was listed on Baby L’s birth certificate as the child’s biological father, and Bafna-Louis adopted Individual-3’s last name after the two became engaged in late 2021. When asked whether she believed Individual-3 was Baby L’s father at that time, Bafna-Louis answered, “There was a chance [Individual-3] was the father at that time” but that she “was unsure.” Bafna-Louis testified that she participated in the decision to list Individual-3 on Baby L’s birth certificate. On March 18, 2022, when Individual-3 was still identified as the father on Baby L’s birth certificate, Individual-3 physically removed Baby L from London to the United States and delivered the infant to Bafna-Louis’s mother in New York City.Individual-3 has acted as Bafna-Louis’s barrister in Family Court proceedings. Individual-3 was included in the RBKC’s safety plan for CBL in April and May 2022, and he had supervisory and caretaking authority over CBL in Bafna-Louis’s absence. Bafna-Louis remained on good terms with Individual-3, who submitted an affidavit on United Kingdom immigration law on her behalf in this proceeding. At the hearing, Bafna-Louis initially denied that she asked or instructed Individual-3 to remove Baby L to New York. Bafna-Louis’s testimony about the removal of Baby L was evasive. Her responses first suggested that Individual-3 removed Baby L independently, and then, in follow-up questions, she acknowledged her participation in the scheme:

 

The United Kingdom’s Child Abduction Act 1984 states that “a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent,” and that a “taking” or “sending” occurs where a person “causes or induces the child to accompany him or any other person ....” The English High Court has stated that Baby L “was wrongfully removed by [Individual-3] (acting as an agent of the Mother) out of the jurisdiction of England and Wales in breach of the rights of custody of the Court ....”

 

The Court independently found that it is more likely than not that Bafna-Louis, acting in concert with Individual-3, knowingly and willfully caused Baby L to be removed from the United Kingdom to the United States. Shortly after Individual-3, acting in concert with Bafna-Louis, removed Baby L from the United Kingdom, the Westminster City Council brought proceedings against Bafna-Louis and Individual-3 in the High Court of Justice, Family Division. The proceeding resulted in an Order from the High Court that prohibited Bafna-Louis or Individual-3 from removing CBL from England and Wales and ordered them to arrange Baby L’s return to the jurisdiction.

 

Bafna-Louis removed CBL from England and Wales to New York City on or about May 16, 2022. Since that time, Bafna-Louis, CBL, and Baby L resided with Christina Louis on the Upper East Side of Manhattan.

 

Meanwhile, proceedings relating to CBL and Baby L continued in the High Court. In the Wardship Proceedings to which the RBKC is a party, the High Court issued multiple orders directing Bafna-Louis and/or Individual-3 to return the children to the jurisdiction, including orders of June 10, July 8, July 26, August 8, November 15 and December 13, 2022. In Orders of November 15 and December 7, 2022, the High Court directed the Home Department of the United Kingdom to grant visas to Bafna-Louis, CBL, and Baby L.

 

The High Court also declared that Individual-1 had “parental responsibility” over Baby L. In an oral ruling of August 23, 2022,  Mr. Justice Keehan of the High Court summarized a sealed order that found on the basis of DNA evidence that Individual-1 is the biological father of Baby L. The order did not appear to grant Individual-1 unfettered rights as to Baby L.

 

In a filing to the High Court dated November 25, 2022, Shanks described the RBKC’s proposed plan in the event that Bafna-Louis and the children return to England and Wales. The RBKC will pay up to £3,000 per month on housing for the family on a property chosen by Bafna-Louis.  It does not seek to separate the children from their mother. A support worker would provide 24/7 supervision and support upon their initial return. A team would assess Bafna-Louis’s substance use, mental health, and parenting capacity. The RBKC would facilitate CBL’s schooling, either remotely, through a state-funded school, or in a private school paid by Bafna-Louis. The RBKC would not oppose the participation of the maternal grandmother, Christina Louis, in the program. The assessment would last for approximately 12 weeks.

 

The District Court observed that the Hague Convention does not define the term ‘habitual residence.’ ” Monasky, 140 S. Ct. at 726. “ ‘Under the text of Article 3(a) of the Convention, the habitual-residence analysis looks to the state “in which the child was habitually resident immediately before the removal ....” (emphasis added); accord Monasky, 140 S. Ct. at 726 (“The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”) The Court found that the greater weight of the evidence, supported the conclusion that the United Kingdom was CBL’s country of habitual residence immediately before his removal. Since 2013 or 2014, CBL principally resided in London, including the Belgravia apartment that the family occupied for approximately five years. CBL attended a private preparatory school that was an approximately eight-minute walk from their home. In a statement submitted to the Family Court on December 17, 2021, Bafna-Louis described CBL as “happy and settled in an English school ....”⁹ He participated in extra-curricular sports that included soccer and fencing, and, to a lesser extent, cricket.  CBL had a strong interest in drama, but the school did not offer drama as an extra-curricular program, so Bafna-Louis arranged for him to participate in a London-based drama program outside of school. CBL’s personal belongings were kept long term in the United Kingdom. Bafna-Louis testified that approximately 60 boxes of family belongings had been shipped or remained in transit from London to New York. The approximately eight- or nine-year duration of CBL’s time residing in London, his schooling in London, the location of his personal possessions, and his integration into the London-based daily routines of an active and thriving young person all weighed strongly in favor of finding the United Kingdom to be the country of habitual residence at the time of removal. Before 2022, CBL’s international travels all concluded with his return to a home in London. The Court concluded that the RBKC has proven that the United Kingdom was the country of CBL’s habitual residence immediately before removal.

 

      As with CBL, the Court concluded that the United Kingdom was the country of Baby L’s habitual residence at the time of his removal. Based on the foregoing, the Court concluded that Baby L was a habitual resident of the United Kingdom prior to his removal.

 

The Court found that RBKC has proven by a preponderance of the evidence that under section 3(a) of the Convention and the laws of the contracting State, i.e. the United Kingdom, it had rights of custody over CBL at the time of his removal. As to Baby L, the Court concluded that RBKC has demonstrated its custodial rights over Baby L under the Convention and the laws of England and Wales at the time of his removal. The RBKC proved by a preponderance of the evidence that it exercised rights of custody over CBL and Baby L at the time each of them was removed under Convention Article 3(b). Article 3(b) provides that a removal is wrongful where “at the time of removal ... rights [of custody] were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” First, both children were removed in violation of ne exeat orders. Abbott held that the removal of a child in violation of a ne exeat order breaches the inchoate rights of a non-consenting custodian – in this case, the courts of England and Wales. Separately, the implementation of the child protection plan by the City of Westminster and its successor the RBKC were a direct exercise of custodial rights over Baby L and CBL.

 

Article 13 of the Convention states that “[t]he judicial or administrative authority may also 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.” “[U]nder this provision, a court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.” Blondin v. Dubois, 238 F.3d 153, 166 (2d Cir. 2001), abrogated on other grounds by Golan, 142 S. Ct. 1880. “[T]he child’s maturity is a question for the district court, to be determined upon the specific facts of each case.” Johnson v. Johnson, 2011 WL 569876, at *7 (S.D.N.Y. Feb. 10, 2011) (Berman, J.). “[T]here is no precise age at which a child will be deemed sufficiently mature under the Convention.” Laguna v. Avila, 2008 WL 1986253, at *9 (E.D.N.Y. May 7, 2008) (Vitaliano, J.).

 

The Court conducted an in camera interview of CBL on February 2, 2023 that lasted approximately two hours and fifteen minutes. Also present were two of CBL’s attorneys and the undersigned’s Law Clerk. Based on CBL’s words and demeanor, the Court found that CBL possessed great maturity and insight for a person of his age, and understood the complexities and nuances of his situation. CBL articulated concrete and well-considered reasons for his desire to remain in New York and not return to the United Kingdom. Accordingly, the Court exercised its discretion to defer to CBL’s views and not order his return to England and Wales. The Court concluded that CBL is of an age and degree of maturity that it was appropriate to defer to his thoughtful views. Pursuant to the discretion afforded under Article 13, the Court declined to order his return to the United Kingdom. The Petition was denied as to CBL.

 

Article 13(b) of the Convention provides that a contracting state “is not bound to order the return of the child” if the respondent proves that “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.” An Article 13(b) defense must be proved by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A); Golan, 142 S. Ct. at 1889. “Under Article 13(b), a grave risk of harm from repatriation arises in two situations: (1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar, 720 F.3d at 103 Intolerable situations may include “[s]exual abuse of a child,” “[o]ther physical or psychological abuse, serious neglect, and domestic violence in the home ....” Golan, 142 S. Ct. at 1894. “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.” Souratgar, 720 F.3d at 103 (quotation marks and alteration omitted). The “grave risk exception is to be interpreted narrowly, lest it swallow the rule.”

 

For the purpose of adjudicating the Rule 13(b) defense, the Court assumed without deciding that the testimony of Bafna-Louis concerning the actions of Individual-1 and Individual-2 was truthful. Accepting the truth of her testimony, and drawing factual inferences in her favor, Bafna-Louis had not met the very high burden required to demonstrate by clear and convincing evidence that Baby L was at grave risk of physical or psychological harm if returned to the United Kingdom. Bafna-Louis’s testimony principally described harm that she personally suffered as a result of the acts of Individual-1 and Individual-2, but not a grave risk of harm to Baby L. The record did not support a finding that Baby L suffered actual or threatened physical harm at the hands of Individual-1 or Individual-2. Bafna-Louis  had not demonstrated that “the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar, 720 F.3d at 103. On the contrary, the courts of England and Wales have been appropriately attentive to the well-being of Baby L.

 

Accepting Bafna-Louis’s version of events, the actions of Individual-1 and Individual-2 were directed almost exclusively toward Bafna-Louis and not Baby L. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.” Souratgar, 720 F.3d at 103-04. There was no suggestion that either individual has behaved violently toward Baby L or has threatened to do so. Even if Bafna-Louis had made a showing that Baby L was at risk of grave harm, she had not made a showing that the RBKC and the courts of England and Wales may be incapable or unwilling to provide him with adequate protection. Souratgar, 720 F.3d at 103. Bafna-Louisurged that uncertainties around the family’s immigration status in the United Kingdom created an intolerable situation that could result in border authorities denying her entry and leaving Baby L in the exclusive care of social services workers., Bafna-Louis had not demonstrated that her potential separation from Baby L due to their immigration status would itself rise to the severity of an “intolerable situation” under the Hague Convention. See, e.g., In re Koc, 181 F. Supp. 2d 136, 156 (E.D.N.Y. 2001). There was no evidence, however, that the RBKC or the High Court wished to separate Bafna-Louis from the children. Hearing exhibits and Bafna-Louis’s testimony demonstrate that the High Court had attempted to facilitate visas and that Bafna-Louis has engaged in dilatory conduct to frustrate entry to the United Kingdom. Bafna-Louis had not demonstrated a likelihood that, upon submission and processing of adequate immigration papers, she or Baby L would be denied entry to the United Kingdom. She had not demonstrated by clear and convincing evidence that any uncertainty on immigration matters creates an intolerable situation.

 

The Petition was granted as to Baby L. Based on the age and degree of maturity of CBL, the Court exercised the discretion afforded to it under Article 13 of the Hague Convention, defers to CBL’s objections, and declined to order his return. The Petition was denied as to CBL.

 

Recent Hague Convention District Court Cases - Moretti v Braga, 2023 WL 3590690 ( N.D. Texas, 2023)

[Italy][Habitual residence][Petition granted]

In Moretti v Braga, 2023 WL 3590690 ( N.D. Texas, 2023) the district court granted the Petition and ordered that the child, A.M., be returned forthwith to Italy and to the custody of her father, Petitioner Carlo Moretti.

 

Mr. Moretti was an Italian citizen and resided in Vicenza, Italy, with his family. Ms. Braga was born in Brazil and moved to the United States when she was five years old; she was a dual citizen of both countries. She lived in the United States until she moved to Italy in 2017 to be in a relationship with Mr. Moretti. Six months after she moved there, Ms. Braga became pregnant with A.M. The couple then moved to nearby Vicenza to live in Mr. Moretti’s home in his family’s apartment complex. In Vicenza, Mr. Moretti provided housing and all of the couple’s financial needs and also gave Ms. Braga money to start entrepreneurial activities in fashion and microgreens because her residency status prevented her from pursuing formal employment. Her businesses were not successful. In 2022, Mr. Moretti earned €100,000 before taxes. A.M. was born in Vicenza on December 6, 2018, and lived in the apartment there with both parents for the first 18 months of her life. A.M. had daily interactions with members of the Moretti family who lived in the apartment complex, including her paternal grandmother, Ms. Mantiero, her aunt, Ms. Moretti, and cousins, Ms. Moretti’s children. The extended family was close to A.M. and regularly acted as a caregiver for her. The couple’s relationship, however, began to deteriorate while they lived in Vicenza. As their relationship deteriorated, the couple began to argue more. Their arguments often escalated into yelling and screaming, and sometimes into physical aggression. These conflicts led to the end of their relationship in May 2020. At that time, Mr. Moretti placed a hold on A.M.’s passport to prevent Ms. Braga from taking her out of the country without his permission. After one year in the adjacent apartment and a brief residence in an apartment off of the Moretti property in Vicenza, Ms. Braga and A.M. moved to Milan in September 2021 into an apartment leased in Mr. Moretti’s name and paid for by Ms. Braga’s family. Mr. Moretti began working with attorneys to formalize their visitation arrangement based on their custody routine, and on December 9, 2021, both parties signed a custody agreement. The Agreement set out Mr. Moretti’s custody as the ability to “stay with his daughter every week from Thursday evening until Saturday morning, being able to stay overnight in the Milan apartment, and alternating weekends from Friday evening when he takes her to Vincenza until Sunday evening when her mother comes to pick her up in Vincenza.”

 

Ms. Braga did not think that she could live a successful life in Italy because of her unsuccessful businesses and the country’s COVID-19 restrictions. Soon after moving to Milan, Ms. Braga began to make plans to move with A.M. permanently to the United States. Ms. Braga admitted that she lied to Mr. Moretti about the true nature and duration of their travel to gain his permission to take A.M. from Italy because she knew that he would never consent to A.M.’s permanent removal. She told him that she wanted to take A.M. to the United States for two weeks to visit her family in Texas and New York over the Christmas holiday. She provided plane tickets with a departure date of December 16, 2021, and a return on January 3, 2022. Believing their travel was a two-week vacation, Mr. Moretti gave his consent and accompanied Ms. Braga to the Vincenza police station to remove the hold on A.M.’s passport.  The couple’s custody Agreement had not been filed with the Italian courts before Ms. Braga took A.M. to the United States; Mr. Moretti planned to file the Agreement with the court after the Christmas holiday. He testified that the terms were finalized, but Ms. Braga testified that the terms were not final for her because she did not intend to live in Italy. At that time, A.M. had only lived in Italy. On January 3, 2022, the date of her purported return to Italy, Ms. Braga texted him a picture of A.M. in a bed at the time they were supposed to be flying back to Italy. When Mr. Moretti asked why they were not at the airport, Ms. Braga called him and told him of her intention to remain in the United States with A.M. Mr. Moretti opposed A.M.’s retention in the United States and asked her to bring A.M. back. A.M. has remained in the United States since December 16, 2021. Petitioner filed this action on March 16, 2023, 14 months after Ms. Braga retained A.M. in the United States. At trial, Respondent confirmed that although she is legally able to return to Italy with A.M., she will “never ever” go back, even if it means giving sole custody to Mr. Moretti.

 

The evidence led the court to conclude that A.M.’s habitual residence was Italy. She was born in Italy and, prior to her removal to the United States in December 2021, had resided only in Italy since her birth. Her father was an Italian citizen whose family resided in Italy, where he was raised and owned property. Prior to A.M.’s move to the United States, her mother also resided there. A.M. attended a nursery school in Milan, where she had friends, and received medical care there. Ms. Braga understood that Mr. Moretti did not want A.M. to leave Italy, which led him to place a hold on her passport.  Respondent asserted that Petitioner had a history of physical and emotional abuse, as well as cocaine use, such that returning A.M. to Italy would expose her to a grave risk of harm or an intolerable situation. Even if taken as true, Respondent’s testimony did not show abuse that rises to the high level of creating an intolerable situation such that removal to Italy with Petitioner constitutes future harm greater than would normally be expected with a custodial parent. When pressed by counsel and by the court for the facts, she recounted three separate incidents of physical contact and offered as evidence the video of a car incident. That evidence, however, amounted to descriptions of three arguments and physical contact between Petitioner and Respondent, in which both parties used physical aggression. Taking these incidents as true, the court was not convinced that Petitioner has a propensity for physical abuse sufficient to constitute a grave risk to A.M. There was no credible evidence that the physical contact between the parties was anything more than “limited incidents aimed at persons other than the child, even if witnessed by the child.” Sierra, 2016 WL 5402933, at *9. More importantly, there was no evidence that Petitioner ever physically abused or neglected A.M. Even assuming that the incidents occurred as Respondent testified, they fall woefully short of providing the court with a basis to conclude that A.M. would be subject to a grave risk of harm if returned to Italy to the custody of her father. The court concluded that neither the incidents of physical arguments, bad temper, or past use of cocaine nor the other grounds relied on by Respondent constituted clear and convincing evidence that A.M. would be subjected to a grave risk of harm or placed in an intolerable situation if she is returned to Italy where she had lived most of his life. The facts of this case simply did not rise to the level of graveness or seriousness required to support a grave risk defense under the Convention. Respondent relied solely on A.M.’s presence in the United States, her Friday preschool, and weekly lessons to support her argument that A.M. is well-settled and should not be forcibly returned to Italy. She asserted that A.M. is too young to attend a traditional school, and therefore her attendance of one-per-week activity is the extent of regular activities that can connect a four-year-old child with her community. She argued that removing A.M. would constitute a cultural shock because she was already accustomed to the United States, and that removal would require her to adapt to the Italian language and culture. Considering the relevant factors, the court concluded that A.M. had not formed significant connections to her new environment to be well-settled in the United States. Likewise, there was no credible evidence that Petitioner “consented to or subsequently acquiesced in the removal or retention.”

 

Recent Hague Convention District Court Cases - Garner v Harris, 2922 WL 193470066 (E.D. Texas, 2022)

 

[United Kingdom] [Petition denied][Grave Risk of Harm][Age and Maturity defense]

In Garner v Harris, 2922 WL 193470066 (E.D. Texas, 2022) Mr. Garner and Ms. Folsom were U.K. citizens. They were unmarried partners for nearly thirty years. During that time, they raised five children. Two of their children, R.G.H. and H.G.H., were the subject of this Petition. Although Mr. Garner and Ms. Folsom were separated, Mr. Garner continued living in Ms. Folsom’s house with their children until June 2021. Over the years, Mr. Garner’s mental instability, alcohol and drug abuse, anger problems, and suicidal nature frequently materialized into violent outbursts and controlling behavior. Mr. Garner subjected his family to a pattern of horrific physical and psychological abuse.

 

Mr. Garner had depression and anxiety. His depression was so severe that he could not work. Instead, Mr. Garner relied on mental disability benefits from the U.K. government as his source of income. Mr. Garner, in contradiction with his doctor’s instructions, no longer takes his antidepressant, Venlafaxine. Despite his mental health issues, Mr. Garner regularly drank alcohol and smoked marijuana. Mr. Garner had not informed his medical providers that he stopped taking his medication and continued to consume alcohol and marijuana. The Court found Mr. Garner subjected the Children to physical and psychological abuse. One of the children testified that he witnessed Mr. Garner slap H.G.H. He also testified that Mr. Garner would grab R.G.H. by the face and push his head into the wall. The Court heard corroborating testimony from the Children during in-camera interviews. R.G.H. stated that Mr. Garner slapped him and his brother.  R.G.H. also testified that on numerous occasions Mr. Garner would grab him by the face, covering his mouth, and smack his head against the wall. Similarly, H.G.H. recalled Mr. Garner slapping the brothers and hitting R.G.H.’s head against the wall. In addition to physical violence, Mr. Garner controlled and psychologically abused his family.  Mr. Garner also verbally abused the family. Mr. Garner terrorized his family with threats. On multiple occasions, Mr. Garner told R.G.H. “I’ll burn the house down with everyone in it. These statements caused R.G.H. to suffer from extreme panic and anxiety. R.G.H. would retreat to his room and think about how he could rescue his family members if Mr. Garner set the house on fire. H.G.H. did not feel safe with Mr. Garner in the House. Mr. Garner showed H.G.H. and R.G.H. his machete. H.G.H. feared Mr. Garner would use his machete to kill the family in the middle of the night while they slept. The Court found that returning the Children to live with Mr. Garner in the U.K. would expose them to a grave risk of physical and psychological harm and that there were no ameliorative measures.

 

          Through its in-camera interviews with R.G.H. and H.G.H., the Court found that the Children were both of sufficient age and maturity to object to returning to the U.K. to live with Mr. Garner, that the Children both explicitly made such an objection, and that the Children’s decisions were not products of undue influence.

 

Recent Hague Convention District Court Cases - Garcia v Ramsis, 2022 WL 18028257 (E.D. Texas, 2023)

 

[Spain][Attorneys Fees][Granted in part]

 In Garcia v Ramsis, 2022 WL 18028257 (E.D. Texas, 2023) the district court granted in part and denied in part  Petitioner Francisco Javier Gonzalez Garcia’s Motion for Attorney’s Fees and Costs. Garcia initiated this Hague Convention case regarding his former partner Ramsis’s refusal to return their minor child S.J.G. to Spain. Garcia v. Ramsis, No. 4:21-CV-650, 2022 WL 287031, at *1–2 (E.D. Tex. Jan. 31, 2022).

The Court found that Spain was the habitual residence of S.J.G. and ordered the prompt and safe return of S.J.G. to Spain. The Court subsequently held a hearing to enforce its orders. Garcia filed a motion seeking attorney’s fees, court costs, and transportation costs. Ramsis did not respond to the motion. The Court later ordered Garcia to submit documentation supporting the court costs he sought to recover, and Garcia filed a supplemental motion for costs with supporting documentation.

 

The Court pointed out that in the Fifth Circuit, reasonable attorney’s fees are calculated using the lodestar method. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 323–24 (5th Cir. 1995). To determine the lodestar, courts must determine the reasonable number of hours expended by the attorney and the reasonable hourly rate for the attorney and then multiply the number of hours by the hourly rate. There is a strong presumption in favor of the lodestar amount, but it may be adjusted based on the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). The burden is on the fee applicant to “produce satisfactory evidence ... that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” And the fee applicant must produce contemporaneous billing records or other documents so the Court can determine which hours are compensable. Finally, the fee applicant must show the reasonableness of the hours billed and must prove that he or she exercised billing judgment. Hensley v. Eckerhart, 461 U.S. 424, 433–34, 103 S.Ct. 1933, 76 L.E.2d 40 (1983). “The Court is also an expert on reasonableness of fees and may use its own experience in deciding a fee award.” Tech Pharmacy Servs., LLC v. Alixa Rx LLC, 298 F.Supp.3d 892, 904 (E.D. Tex. 2017). “The essential goal in shifting fees ... is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011).

 

The Court awarded $48,594.00 in attorney’s fees. $910.40 in litigation costs, $2,813.64 in airline expenses; $229.14 for train tickets; $2,763.03 for his lodging costs;  $808.14 for his rideshare expenses, bringing the total amount awarded for travel expenses to $6,613.95.

 

Recent Hague Convention District Court Cases - Efthymiou v LaBonte, 2023 WL 3611362 (N.D. California, 2023).

 [Cyprus][Necessary Costs]

In Efthymiou v LaBonte, 2023 WL 3611362 (N.D. California, 2023) in February 2023 the Court ordered the return of N.E. to Cyprus under the Hague Convention and set a briefing schedule on a potential award of costs and expenses. Efthymiou v. LaBonte, 2023 WL 1491252, at *13 (N.D. Cal. Feb. 3, 2023).

 

Efthymiou requested an award of $199,878.84. The Court stated that the first substantive question was which of his expenses were “necessary” under the statute. 22 U.S.C. § 9007(b)(3). Efthymiou had the burden of explaining what his expenses were, and a portion of the requested award was rejected for failure to meet that burden. The descriptions for $16,870 worth of itemized expenses were redacted in whole or in part, making it impossible to determine whether they were necessary or appropriate. Similarly, while Efthymiou stated that he was not seeking reimbursement related to his expert, the itemizations include significant fees for consultations with that expert. Based on his representation those line items were set aside, reducing the request by $24,170. Efthymiou’s filings combined multiple expenses into single line items. As it was impossible to tear apart such entries, where a line item is either partially redacted or includes both expert and non-expert work, it was set aside entirely.  Additionally, Efthymiou’s lawyers appeared to have billed him $3,850 for their time flying from Chicago to San Francisco. The entries did not say that the lawyers were working during that time. While attorneys’ “reasonable transportation and lodging” expenses are covered by the statute, their time in transit is not. That amount was excluded. While it is permissible to hire non-local counsel, Efthymiou’s filings did not demonstrate why his lawyers needed to travel to California in October. The $3,431.52 in October travel costs were excluded. The December travel costs, on the other hand, were necessary to attend trial. See Cuellar v. Joyce, 603 F.3d 1142, 1143–44 (9th Cir. 2010). This included the plane tickets purchased in November. While LaBonte suggests these were for an unnecessary November trip, the lack of plane tickets on the December bill suggests that counsel pre-booked their tickets to attend trial. LaBonte was correct that it was not necessary to have both of Efthymiou’s lawyers attend the parties’ depositions. The amount requested was reduced by $2,450 for the original depositions and $1,925 for Efthymiou’s supplemental deposition. LaBonte was also correct that she should not have to bear expenses related to Efthymiou’s unnecessary motion to exclude her expert. A further $775 was deducted. Efthymiou’s attorneys’ fees for attendance at the trial were $31,200.. There’s no question that having one’s attorneys at trial is necessary. But the presentation of evidence was excessively repetitive, driving up costs significantly. This amount was reduced by half, to $15,600.  The billing records reflected a motion that was never filed in this Court. A further $1,925 was excluded. After the above reductions, Efthymiou’s necessary expenses were $128,882.32.

 

The second question on the merits is whether ordering LaBonte to pay Efthymiou’s necessary expenses would be “clearly inappropriate.” The statute doesn’t define what makes a fee award clearly inappropriate. The best understanding of that exception is that it empowers courts to “look to factors that are familiar in the fee award context” so long as they do not construe it “so broadly as to make the analysis indistinguishable” from typical fee-shifting statutes. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). The Ninth Circuit’s sole published ruling on this provision emphasized that it should be construed in light of the Convention’s purpose of deterring unlawful conduct by parents in the first instance. Cuellar, 603 F.3d at 1143. LaBonte’s financial condition is a relevant consideration. Whallon, 356 F.3d at 139, 141 (affirming a twenty-five percent reduction based on the financial condition of the respondent); Rydder v. Rydder, 49 F.3d 369, 373–74 (8th Cir. 1995) (trimming an award of fees and costs by nearly fifty percent based on the respondent’s “straitened financial circumstances”). LaBonte said that she had limited income, few assets, and that she cannot pay any award. She made less than $4,000 per month working several jobs as a nanny and pet-sitter and had expenses that match or exceed that (mostly rent). She took on significant debt to litigate this case, including borrowing $74,000 from her mother, and raised more funds online. She still owes fees to her own attorneys. Even if in relative terms Efthymiou had more resources than LaBonte, it’s apparent that neither parent can easily bear the cost of this case. That is regrettable. Another relevant consideration is whether LaBonte believed in good faith that her retention of N.E. was “legal or justified.” Rath, 898 F.3d at 1311. LaBonte was not in the dark. She knew that she might have to pay for Efthymiou’s legal fees if she lost this case. And she knew that, win or lose, further custody litigation could follow in either California or Cyprus. Her subjective belief in her cause counts for something—but not everything. It was within LaBonte’s power to skip ahead to an actual custody dispute by sending her son home. Efthymiou did not have that same power. Instead, he had to litigate this case for months. In light of LaBonte’s financial condition and her subjective good faith, it was appropriate to reduce the award of necessary expenses by one-third (with half of that reduction attributed to each of those considerations).. LaBonte was ordered to pay Efthymiou for his necessary expenses in the amount of $85,921.55.