Royal Borough of Kensington & Chelsea v. Bafna-Louis, Not Reported in Fed....2023 WL 6173335 (2d Cir.,2023)[United Kingdom][Habitual residence][Rights of custody] [Petition granted]

 

In Royal Borough of Kensington & Chelsea v. Bafna-Louis, Not Reported in Fed....2023 WL 6173335 (2d Cir.,2023) the Second Circuit affirmed the judgment of the district court granting the petition for return.

      Bafna-Louis first challenged the District Court’s determination that Baby L’s habitual residence was the United Kingdom. A child’s habitual residence presents a “mixed question of law and fact—albeit barely so.” Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020) (quotation marks omitted). “Once “the trial court correctly identifies the governing totality-of-the-circumstances standard, however, what remains for the court to do in applying that standard ... is to answer a factual question: Was the child at home in the particular country at issue?”  Because the District Court identified the correct legal standard, it reviewed its habitual residence determination “by a clear-error review standard deferential to the factfinding court,” id., keeping in mind that “courts must be sensitive to the unique circumstances of the case and informed by common sense,”. In general, “[a] child ‘resides’ where she lives. [A child’s] residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.”). For children who are too young to acclimate to their surroundings, as is the case with Baby L, the “intentions and circumstances of caregiving parents are relevant considerations.” “No single fact, however, is dispositive[.]” Here, the District Court considered all of the relevant factors and credited Bafna-Louis’s testimony that she intended to relocate to New York with Baby L. The District Court nevertheless found that Baby L was a habitual resident of the United Kingdom. That finding was supported principally by the following record evidence: (1) Baby L was born in London and was issued a passport by the United Kingdom; (2) at the time Baby L was born, Bafna-Louis “had long maintained a residence in [the United Kingdom];” (3) when Bafna-Louis traveled internationally prior to Baby L’s birth, she resided principally in the United Kingdom; and (4) Baby L’s biological father was physically located in the United Kingdom, and the court proceedings related to him occurred there. On such a record, it could not conclude that the District Court clearly erred in finding that Baby L’s habitual residence was the United Kingdom.

           Bafna-Louis next challenged the District Court’s conclusion that the Royal Borough of Kensington and Chelsea (“RBKC”) had custody rights over Baby L at the time Baby L was removed from the United Kingdom. According ”considerable weight” to the laws of the United Kingdom, the country of Baby L’s habitual residence, it affirmed the District Court’s conclusion that RBKC had custody rights over Baby L at the time of removal. First, before Baby L was removed, the High Court of Justice (the “High Court”), Family Division in London issued two ne exeat orders prohibiting the removal of Baby L from the United Kingdom. See App’x 77; App’x 898 (“The mother must not remove the child from the jurisdiction of England and Wales until further order.”). These ne exeat orders granted the High Court rights of custody over Baby L. See A v. B (Abduction: Declaration) [2009] 1 FLR 1253, 1259-60 (noting that courts become vested with rights of custody once a “judicial determination” has been issued). The High Court’s ne exeat orders vested the RBKC with custody rights over Baby L before his removal and that the RBKC properly exercised those rights in this case..

         Finally, Bafna-Louis contended that the District Court erred in determining that Baby L did not face a “grave risk that his ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” within the meaning of Article 13(b) of the Convention. While the holder of a “ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic.” “[A] respondent who opposes the return of the child has the burden of establishing ... by clear and convincing evidence” that Article 13(b) applies. 22 U.S.C. § 9003(e)(2)(A); see Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999). But Article 13(b)’s “grave risk of harm” standard “involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” Souratgar, 720 F.3d at 103. “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.”. More specifically, “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.”

     Based principally on her testimony that Individual-1 and Individual-2 raped, harassed, and assaulted her, Bafna-Louis argued that there is a grave risk that Baby L will be exposed to great harm from those individuals if he is returned to the United Kingdom. Substantially for the reasons set forth in the District Court’s March 7 order, however, it agreed that Bafna-Louis failed to show that Baby L’s removal to the United Kingdom posed a grave risk of harm to the child or would create an intolerable situation under Article 13(b). Bafna-Louis, 2023 WL 2387385, at *25-27.

 

Recent Hague Convention District Court Cases - Mcelligott v. Mcelligott, 2023 WL 5932947 (D. New Jersey, 2023)[Ireland][Petition granted] [Wishes of the Child Defense] [Indue influence]

 Mcelligott v. Mcelligott, 2023 WL 5932947 (D. New Jersey, 2023)

 The District Court granted the Petition by Stephen McElligott for the return of his minor child C.M., to Ireland. Petitioner Stephen McElligott was born in Ireland and was an Irish citizen. Respondent Audrey McElligott (nee Mocco) was born in New York and was an American citizen. The parties were married on November 10, 2009, in Ireland where they lived together until November 14, 2022. The parties’ older son, C.M., was born in Ireland on April 9, 2011, and lived in the family home in Ireland with both parents until November 14, 2022. On November 14, 2022, Petitioner gave written consent to Respondent to travel to the United States with C.M. and J.M. from November 14, 2022, until November 28, 2022.  C.M. was a citizen of Ireland. J.M., a second son, was born in Ireland on March 19, 2013, and lived in the family home in Ireland with both parents and his older brother, C.M. The Court concluded that Petitioner made out a prima facie case under the Convention that C.M. was wrongfully retained in the United States after removal from his habitual residence in Ireland, in violation of Petitioner’s custody rights under Irish law, which he was exercising at the time of wrongful retention. The Court found that C.M. offered rational and particularized reasons for opposing return, beyond a mere “generalized desire” to remain where he was. The Court found that C.M.’s desire to remain in the United States and not return to Ireland was the product of undue influence. The Court found that the child’s wrongful detention in New Jersey for what was approaching a year among his mother and her close-knit family, all of whom view Petitioner very negatively and apparently had no hesitation in expressing the same in front of C.M. — coupled with the welcome American accoutrements such as summer camps, cellphones, and private gyms that were not afforded to him in Ireland — had understandably but improperly contributed to his desire to remain here.  Accordingly, the Court exercised its discretion under the Convention to find that this is not an appropriate case in which to deny the Petition. C.M. must return to his father and brother in Ireland.

 

 

Green v Phuong, 2023 WL 5608992 ( Ninth Circuit, 2023) [Indonesia][ Subject matter jurisdiction ][Petition denied]

 [Indonesia][ Subject matter jurisdiction ][Petition denied]

 

In Green v Phuong,  2023 WL 5608992 ( Ninth Circuit, 2023) Richard Lee Green appealed pro se from the district court’s judgment dismissing for lack of subject matter jurisdiction his action under the Hague Convention. The Ninth Circuit held that the dismissal of Green’s action was proper because Green did not allege facts sufficient to show that his children were “habitually resident in a Contracting State” because Indonesia is not a Convention signatory. See Convention, Art. 4 (providing that the Convention applies “to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights”)

 

Tsuruta v Tsuruta,2023 WL 5114936 (Eighth Circuit, 2023) [Japan][Habitual Residence][Petition granted]

In Tsuruta v Tsuruta,2023 WL 5114936 (Eighth Circuit, 2023) the Eighth Circuit affirmed the order of the District Court which granted the Petition of  Naoteru Tsuruta (“Naoteru”) for the return of the parties' child to Japan  

     In 2015, Sarah gave birth to L.T. in Miami, Florida. At the time, Naoteru was living in the U.K. Ten months after L.T. was born, Sarah and L.T. moved to the U.K. to live with Naoteru. In 2018, Naoteru and Sarah married, and the family moved from the U.K. to Japan. While in Japan, L.T. attended school/daycare, learned to speak Japanese and English, engaged in extracurricular activities, traveled, and spent time with extended family. In November 2019, Sarah and L.T. traveled from Japan to Missouri to visit Sarah’s family. In February 2020, Sarah and L.T. voluntarily returned to Japan. Sarah became unhappy with the living situation in Japan and repeatedly told Naoteru she wanted to leave Japan and get a divorce. After continued arguments between Naoteru and Sarah, Naoteru attempted to conceal L.T.’s Japanese passport and expired U.S. passport. On October 15, 2021, Sarah found the concealed passports in Naoteru’s work storage facility and went to the U.S. Embassy in Japan. At the Embassy, Sarah reported she feared for her life and her child’s safety. The Embassy issued an emergency passport, and the two went directly to the airport and flew back to the United States. Sarah and L.T. had return flights booked for March 15, 2022. In November 2021, Sarah filed a petition for divorce in Missouri. After learning of the divorce filings in March 2022, Naoteru filed the present petition to have L.T. returned to Japan under the Hague Convention.

      The only contested element of the prima facie case was L.T.’s habitual residence prior to being removed in October 2021. At an evidentiary hearing, Naoteru argued Japan was L.T.’s habitual residence because L.T. had spent most of her time in Japan for the previous three years, attended school in Japan, participated in extracurricular activities in Japan, and gotten to know the extended family in Japan. Additionally, L.T. had spent limited time in the United States before being removed in October 2021, spending only a few months in Missouri before voluntarily returning to Japan. Sarah argued Japan was not L.T.’s habitual residence because Sarah was coerced into living in Japan, L.T. had significant connections to the United States, Japan was never intended as a permanent residence, and L.T. never acclimated to Japan. To support her coercion argument, Sarah asserted Naoteru had her sign a marriage license she didn’t understand, controlled all of the finances, isolated L.T. from Sarah by only speaking Japanese, and controlled all important decisions. Sarah also argued Naoteru’s petition was an effort to “forum shop.” Sarah asserted Naoteru wanted to avoid a child custody case in the United States due to negative experiences in previous U.S. divorce proceedings with a different woman including the issuance of warrants for his arrest for failure to pay child support.

The  district court noted the determination of habitual residence “is a ‘fact-driven inquiry’ and ‘depends on the totality of the circumstances specific to the case.’ ” The district court then found Naoteru had shown by a preponderance of the evidence that Japan was L.T.’s habitual residence prior to removal in October 2021. In reaching this conclusion, the district court relied on several factors including: evidence showing L.T. acclimated to Japan between 2018 and 2021, evidence showing Sarah and Naoteru had a “settled purpose of creating a home in Japan,” and a lack of evidence to show Sarah was coerced into living in Japan. The district court concluded the lack of physical abuse, violence, or threats of violence as well as limited evidence of control distinguished this case from other instances where coercion impacted the habitual residence determination.

The Eighth Circuit observed that Determining habitual residence is a mixed question of fact and law. Monasky, 140 S. Ct. at 730. It found that the district court did not commit a clear error in determining L.T. was “at home” in Japan as of October 15, 2021. L.T. spent most of her time in Japan since 2018. She attended school/daycare in Japan. She participated in activities in Japan. While Sarah might not have intended to spend the rest of L.T.’s life in Japan, Japan was where L.T. was “at home” on the relevant date.

On appeal, Sarah again argued Japan could not be L.T.’s habitual residence because Sarah was coerced into living in Japan and therefore did not intend to make Japan L.T.’s home. Sarah cites two cases for the proposition that one parent being coerced into living in a country is relevant to the habitual residence determination because it affects the intent of the parents. See Application of Ponath, 829 F.Supp. 363, 368 (D. Utah 1993) (“Petitioner’s coercion of respondent by means of verbal, emotional and physical abuse removed any element of choice and settled purpose which earlier may have been present in the family’s decision to visit Germany.”); Tsarbopoulos v. Tsarbopoulos, 176 F.Supp. 2d 1045, 1049 (E.D. Wash. 2001) (“The verbal and physical abuse of one spouse by the other is one of several factors in the Court’s determination of the existence of ‘shared intent’ to make a place the family’s ‘habitual residence.’ ”). The district court addressed these cases and found: “The physical abuse, verbal abuse, and controlling behavior that motivated the courts in both Tsarbopoulos and Ponath are simply not present here. There is no evidence of physical abuse, violence, or threats of violence in this case. Additionally, having considered the testimony of Petitioner and Respondent and having reviewed the text message exchanges between the parties, the court did not find evidence of the type of verbal abuse or controlling behavior that would suggest that Petitioner was coerced or forced into staying in Japan.” Therefore, Sarah’s coercion argument on appeal was  inconsistent with the district court’s factual findings, which are not clearly erroneous.

      Sarah also argued, for the first time on appeal, that Naoteru had “unclean hands” which precluded him from seeking relief in this case. Given the factual questions and the lack of a record or findings as to a connection between Naoteru’s allegedly improper conduct and this case, the Court declared that this was not the time to decide whether “unclean hands” applies to Hague Convention cases.

The New York Matrimonial Trial Handbook by Joel R. Brandes

 

The New York Matrimonial Trial Handbook is a “how to” book. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action and custody case. The book deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination and cross-examination of the parties and expert witnesses at trial. It is available in hardcover, as well as Kindle and electronic editions. It is also available from Amazon,  and other booksellers.  See Table of Contents. 

The New York Matrimonial Trial Handbook 2023 Cumulative Update is available on Amazon in hardcover, paperback, Kindle, and electronic editions. This update includes changes in the law and important cases decided by the New York Courts since the original volume was published. It brings the text and case law up to date through and including December 31, 2022, and contains additional questions for witnesses. See Table of Contents.

Recent Hague Convention District Court Cases - Soterano v. Aponte, 2023 WL 3790895, (S.D. Florida,2023)

 [Venezuela][Petition denied][Well-settled]

Soterano v. Aponte, 2023 WL 3790895, (S.D. Florida,2023).

Petitioner, Adel Jose Sabbagh Soterano, sought the return of his son A.S.O. and his daughter R.S.O. to Venezuela. The Mother argued one of the Hague Convention exceptions applies, specifically that the Father was not exercising custodial rights, that the Children would be at risk of harm if they were to return, or because the Father’s filing is untimely, the Children are well-settled and object to returning to Venezuela. The Court found that the Father had established a prima facie case for return. However, because the Father’s petition was not filed within a year of removal and the Mother had met her burden in showing that the Children were well-settled in their new environment and prefer to live with their Mother, the Court denied the Petition.

 

Recent Hague Convention District Court Cases - Sarmiento v Morales. 2023 WL 3886075 (S.D. Texas, 2023)

 Ecuador][Petition denied][Grave risk of harm]

Sarmiento v Morales. 2023 WL 3886075  (S.D. Texas, 2023)

Petitioner by Victor Modesto Hernandez Morales for the return of his five-year-old son, VAHV (o Ecuador. In January 2022, when he was not yet four, VAHV was brought to the United States by his mother. The Court found that Petitioner met his burden of proving, by a preponderance of the evidence, that VAHV was wrongfully removed from Ecuador. the Court found that Respondent met her burden of proving, by clear and convincing evidence, that VAHV was at grave risk of being exposed to physical and psychological harm should the Court order his return to Ecuador. The Court declines to order a return. The Petition for Return was denied.

 

Recent Hague Convention District Court Cases - Rothman v Rothman 2022 WL 20208933 ( N.D. California,2022)

 [United Kingdom][Discovery motion to compel granted]

Rothman v Rothman 2022 WL 20208933 ( N.D. California,2022)

 Petitioner objected on relevance grounds to the production of documents responsive to the following discovery requests: Documents sufficient to show all real or personal property possessed by you, any corporate entity in which you hold at least a 50% ownership interest, or any trust for which you are either a settlor or beneficiary, which property was located within California between August 2020 and the present.;  Any state and federal tax returns filed by you in the United States for the years of 2020 and 2021; Any filings or submissions provided, or representations made, to any authority of the United Kingdom or any political entity therein with responsibility for taxation of income or assets. The relevant time period for this request was any year for which income obtained between January 1, 2020, and December 31, 2021, would be relevant to such filings, submissions, or representations. The Court held that Courts regularly consider tax return evidence in determining habitual residence under the Hague Convention. See, e.g., Silverman v. Silverman, 338 F.3d 886, 890 (8th Cir. 2003); Foster v. Foster, 429 F. Supp. 3d 589, 599, 609 (W.D. Wis. 2019); Hofmann v. Sender, 716 F.3d 282, 287-88 (2d Cir. 2013); Wild v. Eliot, 147 F. Supp. 3d 49, 51 (D. Conn. 2015); Sorenson v. Sorenson, 563 F. Supp. 2d 961, 965 (D. Minn. 2008). Similarly, ownership by one or both parents of property within the jurisdiction can be a relevant consideration. Gaudin v. Remis, 379 F.3d 631, 635 (9th Cir. 2004); Smith v. Smith, 976 F.3d 558, 560 (5th Cir. 2020). The Court concluded that the information sought by the Respondent was relevant and discoverable. The respondent’s motion to compel was granted.

 

 

Recent Hague Convention District Court Cases - Revelo v Cedeno, 625 F.Supp.3d 529 (W.D. Louisiana, 2022)

 [Ecuador][Habitual residence][Petition granted][No Grave risk of harm]

Revelo v Cedeno, 625 F.Supp.3d 529 (W.D. Louisiana, 2022)

The District Court held that the child’s place of habitual residence was Ecuador; the child’s removal violated the father’s rights of custody, for the purpose of deciding the petition; the father was exercising his custody rights at the time of the child’s removal, supporting petition; and evidence was insufficient to demonstrate that child faced grave risk of harm if returned to live with father in Ecuador. Petition granted.

Recent Hague Convention District Court Cases - Peyre v McGary, 2023 WL 3726728. (D. Arizona, 2023)

 [France][Petition granted][ Consent and Grave risk of harm not established]

Peyre v McGary, 2023 WL 3726728. (D. Arizona, 2023).

While living in France, Father, and Mother got married and had twins. On June 30, 2022, Mother flew to the United States with the Children while Father remained in France. Mother contended it was part of an agreed-to plan for her to permanently relocate to the United States with the Children as she and Father were considering whether to divorce, while Father contended it was a summer vacation from which Mother and the Children were expected to return. Mother’s primary defenses were that “Father consented and/or acquiesced to removal or retention of the Children from France to Arizona” and that the return of the Children would expose them to a grave risk of harm based on Father’s domestic violence against Mother and serious abuse or neglect against the Children. The Court concluded that Father was entitled to relief and Mother was required to return the Children to France. Mother had not come close to establishing that the Children would be exposed to a grave risk of physical or psychological harm if returned to France.

Recent Hague Convention District Court Cases - Peyre v McGarey, 2023 WL 4351544 (D. Arizona, 2023).

 [France][Petition granted][ Mother’s motion for reconsideration denied]

Peyre v McGarey, 2023 WL 4351544 (D. Arizona, 2023).

The Court ordered the Mother to return the parties’ twin children to France. The mother’s motion for reconsideration was denied.

Recent Hague Convention District Court Cases - Neiuwenhoven v Pisani, 2023 WL 3794568, (M.D. Florida, 2023)

 [Australia][Petition granted][ application for attorney’s fees and costs]

Neiuwenhoven v Pisani, 2023 WL 3794568, (M.D. Florida, 2023)

The Court found that the minor child was wrongfully removed from her country of habitual residence and was due to be returned. Upon referral of Petitioner’s application for attorney’s fees and costs recommended that Petitioner’s motion be granted in part and denied in part and that he should be awarded attorney’s fees and costs in the total amount of $45,210.30. This total recommended award reflects reductions for a reasonable attorney hourly rate and a 30% reduction for financial hardship considerations. The requested hourly rate for Ms. Lungarelli was reduced from $495 per hour to $300 per hour, and the requested hourly rate for Ms. Estevez was reduced from $400 per hour to $250 per hour. Respondent offered no documentation in support of her contentions about financial hardship. While she stated she is not working, she did not state she was incapable of working. Nonetheless, she had no doubt incurred considerable expense during this litigation, her earning potential was unclear, and issues relating to marital finances likely remain unresolved. Whatever her income, the potential fee award in this case would be a substantial portion of it. Moreover, in his reply to Respondent’s memorandum opposing the application for fees, Petitioner did not dispute Respondent’s assertions regarding hardship or regarding her strained financial circumstances

 

Recent Hague Convention District Court Cases - McElliott v McElliott 2023 WL 4764816 (D. New Jersey, 2023)

 [Ireland][ motion to appoint a guardian ad litem denied]

McElliott v McElliott 2023 WL 4764816  (D. New Jersey, 2023)

Respondent’s motion to appoint a guardian ad litem for the benefit of the minor child C.M. whom Petitioner seeks returned to Ireland was denied.

 

Recent Hague Convention District Court Cases - Lugo v Padilla. 2023 WL 3853546, (M.D. Florida, 2023)

 [Venezuela][Petition denied][Well-Settled]

Lugo v Padilla. 2023 WL 3853546, (M.D. Florida, 2023)

Recommends, that the Petition be denied. Upon weighing the totality of the factors—none of which weigh in favor of a finding that the child is not well-settled—the court founds that Respondent has carried her burden of proving that M is well-settled by a preponderance of the evidence. M was well-settled in this community. Over a year has passed since M was removed from Venezuela, and M is now a well-settled child. M has spent a substantial portion of his life in this community, setting down roots all the while. That M’s original removal was wrongful does not justify yet another uprooting. As the United States Supreme Court has explained, “the expiration of the 1 year opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement.” Lozano, 572 U.S. at 15. This is a case where M’s interest in being settled outweighed the return remedy.

 

Recent Hague Convention District Court Cases - Junior v De Sousa. 2023 WL 4725909 (N.D. Ohio, 2023).

 [Brazil][Petition granted][Motion for reconsideration and stay pending appeal denied]

Junior v De Sousa. 2023 WL 4725909  (N.D. Ohio, 2023).

Petitioner Edward Jose Junior (“Jose Junior”) brought a petition seeking an order compelling the return of his child, A.S.C., to Brazil. In 2020, his ex-wife and A.S.C.’s mother, Respondent Aline Ferreira de Sousa wrongfully removed A.S.C. from Brazil. On June 27, 2023, this Court granted Jose Junior’s petition and issued a return order. Respondent Ferreira de Sousa asked the Court (1) to reconsider the return order on two grounds and (2) to stay the return order pending appeal. Motion denied.

 

Recent Hague Convention District Court Cases - Junior v de Sousa, 2023 WL 4228163 (N.D. Ohio 2023)

 [Brazil][Petition granted]

Junior v de Sousa 2023 WL 4228163 (N.D. Ohio 2023)

Petitioner Jose Junior sought an order compelling the return of his seven-year-old child, A.S.C., to Brazil. Petition granted. Jose Junior established a prima facie case of wrongful removal. Aline had not why a grave risk of harm would exist if A.S.C. returns. Aline also has not shown that Brazil would be incapable or unwilling to give A.S.C. adequate protection if it is later needed. Ferreira de Sousa’s grave risk defense failed. The Court similarly rejected Ferreira de Sousa’s argument that the United States human rights principles bar the return of A.S.C. This public policy defense should only be invoked only on “ ‘the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.’ ” Ferreira de Sousa has not met that high standard.

Recent Hague Convention District Court Cases - Godinez v Godinez. 2023 WL 3727863, (D. New Jersey, 2023)

 Mexico][Petition granted][wrongful removal][no grave risk of harm]

Godinez v Godinez. 2023 WL 3727863, (D. New Jersey, 2023)

Petition against Respondent Levi Helem Morales Godinez seeking the return of their three minor children, J.A., S.D., and E.M., to Mexico. The Petition was granted. Godinez exercised his custody rights, and he met his burden of demonstrating a prima facie case of wrongful removal under the Convention. While the Court was sympathetic, it could not find clear and convincing evidence that Morales’s limited testimony of domestic abuse, standing alone, was sufficient to establish that the children would be at grave risk of physical or psychological harm or otherwise in an intolerable situation if they were returned to Mexico. There was no evidence of any abuse, neglect, or violence directed toward any of the children. 

Recent Hague Convention District Court Cases - Godinez v Godinez, 2023 WL 4295763 (D. New Jersey, 2023)

 [Mexico][Petition granted][Stay pending appeal denied]

Godinez v Godinez, 2023 WL 4295763 (D. New Jersey, 2023)

Stay pending appeal denied.

Recent Hague Convention District Court Cases - De Costa v De Lima, 2023 WL 4049378 (D. Massachusetts, 2023).

 [Brazil][Petition denied][Well-Settled]

De Costa v De Lima, 2023 WL 4049378 (D. Massachusetts, 2023).

Petition for the return of six-year-old son to Brazil. T.F. was currently living in Martha’s Vineyard, Massachusetts. The Court found that T.F. was well settled in the United States and would not order his return to Brazil, It did not reach the issue of whether his return would put T.F. at grave risk of harm.

Recent Hague Convention District Court Cases - Chavnov v Chavnova, 2023 WL 4111369 (C.D. California. 2023)

 

Chavnov v Chavnova, 2023 WL 4111369 (C.D. California. 2023)

Petition to Return of the Child to Mexico. The petitioner was ordered to show cause why this cause should not be dismissed for failure to prosecute and comply with court orders. The petitioner may discharge the Order to Show Cause by serving Respondent in accordance with 22 U.S.C. § 9003(c) and California law governing service and filing adequate proof of service by July 12, 2023.

Recent Hague Convention District Court Cases -Argueta v Argueta-Ugalde 2023 WL 4206071(E.D. Michigan, 2023)

  

Argueta v Argueta-Ugalde 2023 WL 4206071(E.D. Michigan, 2023).

The Court granted the Petition to have minor child, M.A., returned to Brazil. Petitioner’s Motion for Attorneys’ Fees and Costs granted in part. Attorneys’ fees for Alvarez for 107.5 hours at $350 per hour for a total of $37,625; Attorneys’ fees for Grauman for 36.2 hours at $325 per hour for a total of $11,765; Paralegal fees for 92.1 hours at $135 per hour for a total of $12,433.50. Petitioner was entitled to an award of $61,823.50 in attorneys’ fees.

Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. N. Y., 2023) [Spain] [Petition denied] [Well Settled][Age & Maturity]

Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. N. Y., 2023)

In Lomanto, v Agbelusi, 2023 WL 4118124 (S.D. New York, 2023) the Court denied Angelo Lomanto’s petition for the return to Spain of R.A.L. and S.M.L., his children with Respondent Anthonia Aduke Agbelusi. The Court concluded that Agbelusi had successfully proven that the children were now settled, that the elder child was sufficiently mature and objected to return, and that the children should not be separated.

     On August 26, 2022, Lomanto filed this action in the United States District Court for the Eastern District of New York. The Eastern District transferred this case to the Southern District on August 29, 2022. Agbelusi conceded Lomanto’s prima facie case, and t this case concerned only the defenses to the presumption in favor of return under the Convention. Agbelusi had the burden of establishing these defenses. § 9003(e)(2). Absent a finding that an exception applies, a child determined to be wrongfully removed or retained must be “promptly returned” to the child’s country of habitual residence. § 9001(a)(4).

     The Court found out that R.A.L. and S.M.L. were both evaluated by Dr. Edward Fernandez, a licensed clinical psychologist. Dr. Fernandez’s assessment, after meeting with R.A.L. and S.M.L., was that R.A.L. was of “sufficient age and maturity to have his opinion considered,” that he displayed “psychological maturity and attunement to his current circumstances,” and that he “is capable of making logical decisions.” S.M.L., while of “sufficient age-related maturity,” was, by contrast, at an age where he was highly influenced by his surroundings rather than forming his own opinions. Dr. Fernandez also observed the close relationship between the two children and noted R.A.L.’s maturity and responsibility when it came to caring for his younger brother. The Court also met with both R.A.L. and S.M.L. in camera, accompanied by their court-appointed attorneys. The Court conducted this interview without Agbelusi, Lomanto, or their counsel present, and the transcript was sealed. Both parties submitted proposed questions for the interview. S.M.L., age six, was rambunctious, energetic, and guileless. His comments were overwhelmingly positive toward everyone — including his teachers, father, mother, brother, grandmother, and the Court. Given his age and attention span, the interview with S.M.L. was relatively brief. The conversation with R.A.L., age fourteen, lasted about an hour. The Court found R.A.L. to be mature, intelligent, thoughtful, engaging, and reasonable. He expressed himself clearly, honestly, and with impressive nuance and grace toward both of his parents. Based on this conversation and the conclusions of Dr. Fernandez, the Court found that R.A.L. was sufficiently mature and independent to justify crediting R.A.L.’s views. During the conversation with R.A.L., R.A.L. expressed his objection to returning to Spain and his strong desire to stay in New York. In particular, he expressed a strong objection to being parted from his mother and his life, friends, and school in New York, despite acknowledging that he missed some creature comforts like his video game set-up in Spain. R.A.L. also expressed that he did not wish to be permanently parted from either parent. R.A.L. was very patient and conscientious with his younger brother. The two were very close, and due to their affect during the interview with both children, as well as the evidence at trial, the Court found it would cause significant damage to separate the two children.

     The Court noted that the now-settled defense is available only when the proceedings were commenced more than a year after the date of the wrongful removal or retention of the child. R.A.L. informed his father on August 24, 2021, that he would be staying in New York and enrolling in school. Agbelusi told Lomanto the same late on August 24, 2021, when she was in New York, which was early August 25, 2021, in Spain. On August 25, 2021, Lomanto filed a police report in Spain stating that his children had been kidnapped “yesterday” and giving August 24, 2021, as the date of disappearance. In any event, this action was filed on August 26, 2022. Ultimately, whether the date of retention was August 24 or August 25 was legally irrelevant because either way this action was filed more than “a year” after the wrongful retention. The now-settled defense was available under the facts of this case as a matter of law. Although the Hague Convention does not define the phrase “settled,” the Second Circuit has explained that the term “should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.” Lozano v. Alvarez, 697 F.3d at 56. Although courts “may consider any factor relevant to a child’s connection to his living arrangement,” the Second Circuit has explained that courts should “generally” consider: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child attends church or participates in other community or extracurricular school activities regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Agbelusi demonstrated by a preponderance of the evidence several factors weighed strongly in favor of finding R.A.L. and S.M.L. settled, including their ages, academic performance and improvement, extracurricular activities, peer social relationships, and family relationships. In light of the strength of her showing on these factors, the Court concluded that R.A.L. and S.M.L. were settled such that repatriating them “would be disruptive with likely harmful effects.” In re Lozano, 809 F. Supp. 2d at 230.

The Court explained that Article 13 of the Hague Convention also permits a court 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, Art. 13. According to the Explanatory Report, under this provision a child’s objection may be conclusive: [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...the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will. Pérez–Vera Report ¶ 30; see also Blondin v. Dubois, 238 F. 3d at 166. Based on its interview with R.A.L. and S.M.L., and the expert evaluation of Dr. Fernandez, the Court found that R.A.L. was of sufficient age and maturity to take account of his views. S.M.L., by contrast, was not of sufficient age and maturity to qualify for this defense. However, the Court concluded that separation of R.A.L. and S.M.L. would cause significant hardship and psychological harm, and ought to be avoided at all costs. “Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention.” Ermini v. Vittori, No. 12 Civ. 6100, 2013 WL 1703590, at *17 (S.D.N.Y. Apr. 19, 2013), aff’d as amended, 758 F.3d 153 (2d Cir. 2014). R.A.L. objected to being returned to Spain. The articulation of his reasoning was rational, logical, and clear. The Court was also persuaded that his objection was the product of his own considered and independent thinking, rather than a product of “undue influence” by his mother. This defense independently justified the denial of the Petition. The Court found by a preponderance of the evidence that R.A.L. and S.M.L. were settled in the United States, and that R.A.L. was of sufficient age and maturity that the Court may consider his objection to return. Lomanto’s petition for the return of R.A.L. and S.M.L. was denied.

Hernandez v Hernandez, 2023 WL 3765061 ( E.D. New York, 2023) - [Honduras][Motion to preclude in camera interview denied]

In Hernandez v Hernandez, 2023 WL 3765061 ( E.D. New York, 2023) Petitioner sought the return of two minor children, RFHA and GLHA, currently residing in the United States with their biological mother and paternal aunt. The children were removed from Honduras and brought to the United States in January 2022. Petitioner filed his petition for their return before this Court on October 27, 2022. After the Court scheduled an interview with the children Petitioner filed this motion seeking to preclude the Court from conducting an in camera interview of the minor children. Petitioner asserted that the children have not yet reached an age of maturity under the Hague Convention such that the Court should not conduct the interview or consider their testimony. The Court held that the argument was circular: without conducting some inquiry, the Court would be unable to assess the children’s maturity level and determine whether their views might be germane. “ ‘Whether a child is mature enough to have its views considered is a factual finding’ that a district court must make in light of the specific circumstances of each case.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 205 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007)). There is no bright line rule for an age at which the Court should consider a child sufficiently mature. The Court observed that Courts in this Circuit routinely conduct in camera interviews of children to assess the issue of maturity. See, e.g., Tann, 648 F. App’x at 149; Cruvinel v. Cruvinel, 2022 WL 757955, at *5 (E.D.N.Y. Jan. 10, 2022); Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336, 343 (E.D.N.Y. 2004); Johnson v. Johnson, 2011 WL 569876, at *6 (S.D.N.Y. Feb. 10, 2011); In re D.T.J., 956 F. Supp. 2d 523, 527 (S.D.N.Y. 2013); Taveras v. Morales, 22 F. Supp. 3d 219, 221 (S.D.N.Y. 2014), aff’d sub nom. Taveras ex rel. L.A.H. v. Morales, 604 F. App’x 55 (2d Cir. 2015); Royal Borough of Kensington & Chelsea v. Bafna-Louis, 2023 WL 2387385, at *1 (S.D.N.Y. Mar. 7, 2023). The petitioner’s motion constituted a preemptive effort to preclude consideration of this important issue and well-established practice. Suggesting, as the petitioner had, that the children had been subject to “undue influence” did not advance the argument. The district court denied the petitioner’s motion.

.

 

Gould v Kontogiorge, --- N.Y.S.3d ----, 2023 WL 3633433, 2023 N.Y. Slip Op. 02824 (1st Dept.,2023) - Cyprus][Necessary Costs & Fees][Evidence]

 In Gould v Kontogiorge, --- N.Y.S.3d ----, 2023 WL 3633433, 2023 N.Y. Slip Op. 02824 (1^st Dept.,2023) the mother appealed from an order of the  Supreme Court, which, inter alia,  directed her to reimburse plaintiff father, $1,900 for payments made to visitation supervisors through September 30, 2021, and, upon final resolution of this matter, to pay $4,687.90 for his and the child’s travel costs to New York from Cyprus (February 18, 2022 order). The  Appellate Division held that the motion court should not have awarded the father reimbursement for $1900 he allegedly paid to visitation supervisors, as he offered no proof of payment beyond unsupported assertions in his motion papers. His motion was unaccompanied by any documentation, or by affidavits from the visitation supervisors, substantiating the payments (Matter of Parente v. Parente, 193 AD3d 862 [2d Dept 2021] ). In turn, it vacated the finding of civil contempt (to the extent not already purged) and resultant $6,437.50 counsel fee award imposed against the mother for failing to timely reimburse the father for this expense as set forth in the motion court’s orders of September 20 and 27, 2022. It affirmed the  February 18, 2022 order, as the father did produce adequate proof of the costs of the child’s return to the U.S. from Cyprus. He submitted documentation of credit card charges for payments made to American Airlines in March 2021, on a Visa held by nonparties, and one of the nonparties is listed on the father’s Net Worth Statement as an individual who has extended him personal loans. However, that aspect of the order that limited the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since the conclusion of the Hague Convention proceedings, was vacated. It found that the court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” (Matter of Katz v. Katz, 117 AD3d 1054, 1055 [2d Dept 2014] ). However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. The mother introduced affidavit testimony of domestic violence to buttress her “grave risk of harm” defense to the child’s return pursuant to Article 13(b) of the Convention. However, the Cyprus court’s determination that she had not met her burden as to such defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court. As the U.S. Supreme Court has recognized, “return [of a child pursuant to the Hague Convention] is merely a provisional remedy that fixes the forum for custody proceedings” (Golan v. Saada, __US__, 142 S Ct 1880, 1888 [2022]).

 

Silva v. Dos Santos, --- F.4th ----, 2023 WL 3674357 (Eleventh Circuit.2023) - [Brazil] [Grave Risk of Harm] [Clear and Convincing Evidence][Corroberation]

  

        In Silva v. Dos Santos, --- F.4th ----, 2023 WL 3674357 (Eleventh Circuit,2023) in 2021, Respondent-Appellant Adriene Ferreira dos Santos left Brazil with her daughter, Y.F.G., and eventually entered the United States. The child’s father, Petitioner-Appellee Wellekson Gonçalves Silva, shared custody of Y.F.G., and he petitioned for the child’s return to Brazil under the Convention and ICARA. Following a bench trial at which both parents testified, the district court ordered that Y.F.G. be returned to Brazil. The district court expressly found Silva not to be credible, but because the district court concluded that dos Santos did not provide independent corroboration to support her own testimony, the district court found she had not established by clear and convincing evidence a “grave risk” of harm to Y.F.G. in Brazil. The Eleventh Circuit concluded that the district court applied an erroneous legal standard in weighing the conflicting testimony. It vacated the district court’s order and remand for further consideration.

 

Dos Santos and Silva met in 2011 in Brazil. They have one child together, their daughter Y.F.G., who was born in 2012 in Guanhães, Brazil. The three lived together in Guanhães until April 2020, when dos Santos and Silva separated. Dos Santos submitted that her relationship with Silva was plagued by frequent abusive incidents, which caused her to fear for her own safety and her daughter’s well-being. She testified about several of these incidents. On dos Santos’s telling, the abuse began during her pregnancy when Silva beat her, dragged her around the house, held her by her neck until she couldn’t breathe, and told her that he would remove the baby from her belly with his own hands. She testified that the beatings continued after Y.F.G. was born, including an incident where Silva tied dos Santos up with an electrical cord and told her to say goodbye to the world because it would be her last day—all of which occurred in front of a crying Y.F.G. Dos Santos also recounted several times when Silva pointed a gun at her, which she said happened so often that she “lost [her] count,” as well as an incident in which Silva dragged dos Santos by her hair in front of Y.F.G., who yelled at Silva to let dos Santos go. Dos Santos estimated that she was abused almost every day. Silva described burning the family’s kitten to Y.F.G. Silva also allegedly inflicted purely psychological harm on dos Santos, including an instance in which he used social networks to share intimate photos of dos Santos that he had taken when they lived together. After dos Santos and Silva separated in 2020, Y.F.G. initially lived with dos Santos. Later that year, dos Santos obtained a restraining order against Silva, Brazilian records indicate that Silva repeatedly violated the restraining order and that he was arrested and imprisoned under the “decree of preventative imprisonment.”¹ Following his release, Silva filed a lawsuit to confirm his custodial rights, and in June 2021, a Brazilian judge ordered that dos Santos and Silva share custody of Y.F.G. In August 2021, Dos Santos left Brazil with Y.F.G. and traveled to the United States without Silva’s consent. In August 2022, in federal district court, Silva filed a Petition under the Convention seeking Y.F.G.’s return to Brazil.

 

The district court conducted a bench trial in February 2023., Silva largely denied dos Santos’s allegations of abuse. After Silva testified and before dos Santos took the stand, the district judge said, “I want to know whether anyone actually witnessed these so-called incidents on which [dos Santos] is relying to establish an affirmative defense. That’s really all I’m interested in.” Dos Santos then testified and recounted the many instances of alleged abuse and violence, as we’ve mentioned. Besides discussing these incidents, dos Santos’s testimony also included a description of an altercation between Silva and dos Santos’s subsequent boyfriend and an incident in which Silva damaged dos Santos’s car. According to dos Santos, a neighbor captured the car damage incident on video. But neither the boyfriend nor the neighbor testified during the bench trial, nor did dos Santos offer the video recording into evidence.  Dos Santos’s counsel called two other witnesses to testify at trial. The district court then presented its factual findings. It began by expressly discrediting Silva’s testimony. Despite expressly discrediting Silva’s testimony, the district court found that dos Santos had not met her burden to prove by clear and convincing evidence that Y.F.G. was at grave risk. While dos Santos testified about several distinct incidents, “on many of the points,” the district court explained, dos Santos “was the only one who testified to these points.” The court found that it was “curious” that she presented no documents to corroborate allegations of broken ribs nor were there police reports that supported any of these incidents. And the district court noted that many of the alleged incidents occurred several years before dos Santos and Y.F.G. came to the United States. The district court granted Silva’s petition for return of the child under the Convention and ICARA. It also denied dos Santos’s motion to stay its order pending appeal. This Court then granted dos Santos’s emergency motion to stay the district court’s order pending appeal.

 

The Court said it reviews a district court’s factual findings for clear error and its legal conclusions de novo. Whether a grave risk of harm to a child exists under the terms of the Hague Convention is a mixed question of law and fact, which we review de novo.” Baran v. Beaty, 526 F.3d 1340, 1345 (11th Cir. 2008). It pointed out that this case turned solely on the application of the Convention’s “grave risk” exception. And on that point, as the party opposing return, dos Santos bears the burden to establish “by clear and convincing evidence” that the exception applies and that Y.F.G. should therefore not be returned. Id. § 9003(e)(2).

 

Here, the district court expressed “concerns about the child being returned to Brazil and being with her father” because, in the court’s view, “there are some issues with the father,” including “possible anger management issues” and “making threats to people.” But the district court felt its “hands [were] tied” because the only evidence of the incidents dos Santos described was dos Santos’s testimony. Indeed, even before dos Santos testified and the court could evaluate her credibility on the stand, the district court emphasized that “really all [it was] interested in” was “whether anyone actually witnessed these so-called incidents on which [dos Santos] is relying to establish an affirmative defense.” So even though the district court expressly found that Silva’s testimony was not credible and did not make a similar finding as to dos Santos, it concluded that dos Santos did not meet her burden to establish the harm Y.F.G. faced in Brazil.

 

This reasoning reflected two legal errors. First, given that Silva testified about the alleged abuse and the district court expressly did not believe him, under its precedent, it was not necessarily the case that dos Santos’s testimony was uncorroborated. And second, even without independent corroboration, a factfinder’s belief in a single witness’s testimony alone can be sufficient to satisfy a party’s burden to prove a fact by clear and convincing evidence. Either error alone required it to vacate and remand for further consideration under the correct standard. And both together provide all the more reason that it must remand.

 

A factfinder can use a witness’s noncredible testimony as corroborating substantive evidence against the witness’s interests, regardless of whether the case arises in the civil or criminal context. Here, that means the district court could consider its lack of faith in Silva’s testimony as corroborating substantive evidence that dos Santos’s allegations are true. In invoking the “grave risk” exception, dos Santos accused Silva of engaging in physical violence and emotional and physical abuse. Silva testified and, for the most part, denied that the alleged instances of abuse happened. But the district court expressly found that Silva was “not very credible at all.” It said that it didn’t find him to be “believable” and expressed concerns about his “issues,” including “possible anger management issues” and “making threats to people.” In other words, the district court observed Silva’s testimony and determined that he was not trustworthy. By testifying, Silva risked that the district court would not believe him or find him to be a credible witness. And because the district court did not believe him, it could have chosen to consider Silva’s testimony as corroborating substantive evidence that the alleged abusive incidents did, in fact, occur. In this way, the district court had the option of considering Silva’s testimony as corroborative of dos Santos’s testimony. In other words, dos Santos’s testimony was not necessarily uncorroborated on this record because the district court could have found that Silva’s noncredible denials and non-denial denials corroborated dos Santos’s assertions about the physical violence and physical and emotional abuse. The district court did not know that it could consider testimony it found noncredible as corroborating substantive evidence because the district court expressly said so. Because the district court did not know that it could consider Silva’s noncredible testimony as corroborating substantive evidence, it had no reason to consider—and certainly did not announce—how that information might have affected its decision.

 

The district court’s second error was concluding that a single witness’s testimony is necessarily insufficient to satisfy the clear-and-convincing-evidence standard. Neither the Convention, ICARA, nor governing precedent requires a respondent to provide independent corroboration to establish that a child would face a “grave risk” of harm if they were returned to their resident country. Instead, ICARA requires that the respondent provide “clear and convincing evidence” that the exception applies. 22 U.S.C. § 9003(e)(2). And that standard does not necessarily mandate that a witness’s testimony be corroborated to be credited by the fact finder. Dos Santos could have satisfied her burden to establish “clear and convincing evidence” based on only her own testimony. Unlike with Silva’s testimony, the district court did not discredit dos Santos’s testimony. If the district court credited her testimony and believed that Silva was, in fact, responsible for the various abusive incidents, the district court could have reasonably concluded that dos Santos established that Y.F.G.’s return to Brazil risked physical or psychological harm to the child. The district court did not know that it could rely solely on dos Santos’s testimony to find clear and convincing evidence if it was so moved. The district court erroneously believed that dos Santos’s testimony alone was insufficient to meet the clear-and-convincing standard.

The Court summarized its holding as follows:” In sum, when a factfinder does not believe an interested witness’s testimony, it may—but is not required to—consider that witness’s discredited testimony as corroborating substantive evidence that the opposite of the testimony is true. And when a single witness provides the only evidence on some point, that testimony, without corroboration, can still meet the standard of clear and convincing evidence if the factfinder concludes that it is credible. Because the district court’s reasoning did not account for these principles, it vacated the district court’s order and remanded for further consideration in light of this opinion.