Recent Hague Convention District Court Cases - McElligott v McElligott, 2023 WL 6923493, NOT FOR PUBLICATION, (D. New Jersey, 2023)[Ireland][Petition granted][Necessary fees and costs]

 

In McElligott v McElligott, 2023 WL 6923493, NOT FOR PUBLICATION, (D. New Jersey, 2023) the district court granted in part the unopposed Motion for Attorney’s Fees by Stephen McElligott which sought an award of $68,623.10 in attorney’s fees pursuant to 22 U.S.C. § 9007 Petitioner was awarded the reduced amount of costs and fees of $68,327.00.

 

After the Court granted the Petition and ordered C.M. returned to Ireland. Petitioner filed a Motion for Attorney’s Fees accompanied by an attorney certification stating that Petitioner’s attorneys had worked 296.85 hours on the matter at a requested rate of $200.00 per hour. Because Petitioner was represented pro bono, Petitioner’s counsel did not charge Petitioner. However, counsel certified that attorneys at Rutgers Law Associates charge clients represented through the Victims of Crime Compensation Office at a rate of $200.00 per hour, which typically involves work similar to Hague Convention matters. Petitioner also sought $6,453.10 in other expenses, including “fees for filings, our expert’s report, travel expenses, postage, and expenses from accompanying the minor child to boarding his flight to Ireland.”  Petitioner’s Motion in total requested $68,623.10, which includes $59,370 in attorney’s fees (296.85 hours × $200.00 per hour) and $9,253.10 in expenses ($8,425.00 in expert witness fees + $828.10 in other fees). Respondent offered no evidence that an award of costs and fees would be “clearly inappropriate” here.  The Court applied the Lodestar approach to determining whether Petitioner’s requested award of attorney’s fees is appropriate. See Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998); Soulier v. Matsumoto, No. 20-4720, 2022 WL 17250549, at *1 (D.N.J. Nov. 28, 2022). Respondent did not contest Petitioner’s application and offered no evidence rebutting Petitioner’s prima facie case that his attorney’s fee rate was reasonable. See McCutcheon v. Am.’s Servicing Co., 560 F.3d 143, 150–51 (3d Cir. 2009) Thus, the Court accepted $200.00 per hour as a reasonable rate for the complex, time-sensitive representation Petitioner’s counsel performed here. The Court found that the amount of time billed on this matter, in light of the exigent circumstances driving this Hague Convention litigation and the need to prepare for trial in a short time frame, was reasonable. The court granted the requested $59,370.00 in attorney’s fees.  Petitioner sought $8,425.00 in expert witness fees—comprising $5,625.00 for the initial expert report, $1,400.00 for the expert’s deposition appearance, and $1,400.00 for the expert’s appearance at trial. The court found this unopposed request for necessary expenses reasonable. This falls squarely within the “court costs” contemplated by ICARA. 22 U.S.C. § 9007(b)(3). The balance Petitioner sought was $296.10 in expenses for gas and parking for commuting to the courthouse and the airport; counsel’s meal at the airport; and a postage fee to send an expert’s fee by overnight mail. The Court found that the $296.10 in expenses do not fall within the “necessary expenses” encompassed by ICARA, and therefore must be excluded from the fee award. Therefore, the Court awarded only $8,957.00 in costs and fees. The fact that Petitioner did not pay for the expense of litigating the Petition out of pocket—as he was represented pro bono—does not bar the recovery of attorney’s fees. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) Nonetheless, in evaluating the reasonableness of fees, the Court considers whether Petitioner would have permitted his attorney to expend such resources had he been required to pay for them out-of-pocket. See Cillikova, 2016 WL 541134, at *5 n.2

Galaviz, v. Reyes, --- F.4th ----, 2023 WL 6619478 (Fifth Circuit, 2023) [Mexico] [Petition granted][Grave risk of harm]

 

In Galaviz, v. Reyes, --- F.4th ----, 2023 WL 6619478 (Fifth Circuit, 2023)  Galaviz and Reyes had two children in Mexico together, Andrew and Grace. After Galaviz and Reyes separated, the children remained in Mexico with Galaviz. In July 2021, Reyes took the children to El Paso and refused to return them. Galaviz filed an action in the district court requesting the return of the children to Mexico under the Hague Convention. Reyes raised two affirmative defenses claiming that returning the children would violate their fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court concluded that Reyes had satisfied his burden and denied Galaviz’s request for return of the children. The Fifth Circuit reversed and remanded with instructions that the court enter an order that the children be returned to Mexico.

 Andrew and Grace were four and five years old respectively at the time of the district court proceedings. After Galaviz and Reyes separated, the children remained in Juarez, Mexico under Galaviz’s care. Reyes moved out of the home and relocated to El Paso, Texas. Galaviz and Reyes have no formal custody or possession court orders in place governing each parent’s custodial rights. In July 2021, Reyes took the children to El Paso for an appointment with a physician and declined to return them. In August, Galaviz filed a petition for custody of the children with the Seventh Family Court for Hearings in the Judicial District of Bravos, Chihuahua, Mexico. Galaviz has yet to obtain service on Reyes. In November, Galaviz filed a Verified Petition for the Return of the Children under the Hague Convention and the International Child Abduction Remedies Act (ICARA) in the Western District of Texas, El Paso Division.

 The district court held a trial. Reyes conceded that Galaviz met her burden of establishing a prima facie case of wrongful removal by a preponderance of the evidence. The burden then shifted to Reyes, who opposed the return, to establish an exception.¹ Reyes raised the exceptions set forth in Articles 20 and 13(b) of the Convention. As to Reyes’s Article 20 defense, the district court concluded that “[Galaviz’s] inability to be present with the children, as required so that they can attend school, effectively denies the children the fundamental right to an education,” and “[t]he denial of an education to two special needs children in their most formative years utterly shocks the conscience of the court.” As to Reyes’s Article 13(b) defense, the court concluded that “[t]he incidents of abuse and neglect collectively and the strong suggestion of sexual abuse constitute a grave risk of physical and psychological harm and an intolerable situation should the children return to Juarez.” The court concluded that Reyes had established these exceptions by clear and convincing evidence² and denied Galaviz’s request for the return of the children to Mexico.

 The Fifth Circuit observed that the Article 20 defense allows repatriation to be denied when it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.’ ” Article 20 is to be “restrictively interpreted and applied.” It “is not to be used ... as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.” This exception should only be “invoked on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.” The district court found that while in Galaviz’s care, the children did not attend preschool or kindergarten due to the school’s requirement that Galaviz attend school with them to help with their special needs. Because Galaviz was unable to comply with this requirement, the children did not attend school. These findings do not establish an Article 20 defense. The district court focused on Galaviz’s actions or inactions regarding the children’s education, not on Mexican laws or policies that would prohibit return. The court even acknowledged that “the law in Mexico may provide for special education.” By focusing on Galaviz’s actions or inactions, the court essentially made an impermissible custody determination. Reyes did not present clear and convincing evidence demonstrating that the return of the children would utterly shock the conscience of the court or offend all notions of due process.

 The district court concluded that Reyes presented evidence demonstrating a history of neglect and abuse by Galaviz for ten reasons: While in Galaviz’s care: “(1) the children’s physical and cognitive abilities declined;” “(2) the children did not attend school although they suffered severe special needs;” “(3) [Grace] received no treatment for her special needs;” “(4) the children remained completely non-verbal;” “(5) the children’s healthcare needs were being neglected as the children were missing vaccines, and had unaddressed auditory, visual, and dental issues;” “(6) the children’s hygiene was being neglected;” (7) “the children’s ability to use the toilet had regressed and the children reverted to using diapers;” (8) “the children had been physically abused;” (9) “there was a strong suggestion the children experienced sexual abuse;” and (10) “Petitioner presented no evidence of a suitable means of childcare while she is at work.” The Fifth Circuit held that the findings pertaining to neglect (findings (1), (2), (3), (4), (5), (6), (7), and (10)) did not satisfy the clear and convincing evidence burden. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of proving clear and convincing evidence. In the present case, the district court’s findings regarding the children’s healthcare, including the children’s cognitive decline, the fact that they remained non-verbal, or their regression to using diapers may be supported by evidence that would be sufficient in a custody dispute. However, this evidence fell short of meeting Reyes’s clear and convincing burden. Finally, Reyes presented no evidence that unsuitable childcare would expose the children to a grave risk of harm. He merely expressed concern that Galaviz often left the children with her older daughters and they did not take care of the children. This is not clear and convincing evidence of a grave risk of harm.

 Next, the evidence related to physical abuse does not establish a grave risk of harm under a clear and convincing burden. The Second Circuit has stated that “[s]poradic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk” under a clear and convincing burden. Cases concluding that the grave risk exception has been met often involve physical abuse that is repetitive and severe. The district court found that the children had been physically abused based on the children’s behavior and on the testimony of Galaviz’s former friend. The court found that the children cowered and protected their heads when bathing, that Andrew reacted to protect Grace when she spilled her beverage, and that he covered her mouth to quiet her when she cried. Reyes testified that he never saw Galaviz hit the children, but that he observed her yell at them. Reyes stated that he would attempt to conduct video conferences between Galaviz and the children, but that they would become very upset and cry and throw the phone at him. There were other plausible explanations for the children’s behavior. Reyes’s sister acknowledged that it was possible the children did not want to be bathed by someone they didn’t know. The children could have behaved fearfully because of prior actions by Reyes—Galaviz testified that Reyes had punched her, tried to strangle her, and caused swelling, bruises, black eyes, a busted lip, and a broken nose. Galaviz’s former friend testified that she witnessed Galaviz physically abuse the children. She stated that Galaviz hit Andrew with a foam slipper to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult daughter when she confronted her about spanking Andrew. She also testified that Galaviz would hit the children because they would cry. This is not the kind of repetitive and severe abuse seen in cases like Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007) This case was more similar to Altamiranda Vale. The evidence, therefore, did not satisfy an Article 13(b) defense. Neither the evidence of the children’s behavior nor the former friend’s testimony about the alleged abuse meet the clear and convincing burden.

 Lastly, there was no clear and convincing evidence establishing sexual abuse. The district court determined that there was a “strong suggestion of sexual abuse” which constituted a grave risk of harm or an intolerable situation. This “strong suggestion” was based on the findings that Reyes received anonymous text messages stating that Grace and Andrew had been sexually abused with Galaviz’s knowledge, a police report filed by Reyes, a physical examination in which a physician expressed his or her belief that Andrew “could have been sexually abused,” and a police report filed by the physician. This evidence did not meet the clear and convincing evidence burden. In Danaipour v. McLarey, the First Circuit determined that there was a clear and substantial claim of abuse because of evidence including, vaginal redness on one child after her return from visits with her father, the child’s statements to a psychologist that her father had caused the redness, statements by the child that her father had hurt her “pee-pee,” and that she had exhibited symptoms of abuse. Similarly, in Ortiz v. Martinez, the mother had described how she had seen the father molesting the child in the shower, how she had overheard the child tell her father not to touch her anymore, and that the child had exhibited behavior consistent with having suffered sexual abuse. This evidence was sufficient to establish the grave risk exception. By contrast, in Kufner v. Kufner, the First Circuit concluded that the respondent did not establish the grave risk exception despite evidence that the father took four graphic photographs of his children and the children began exhibiting physical symptoms such as bed-wetting, nervous eye twitching, sleeplessness, and nighttime crying and screaming after a vacation with the father.⁵⁷ In the present case, the physician stated that Andrew could have been sexually abused. The Texas Department of Family and Protection Services initiated an investigation but closed it with no findings. The El Paso Police Department also closed its investigation. The district court acknowledged that the text messages could “be from just about anyone with bad intentions.” This court had previously concluded that information from an unknown source is not sufficient to establish a grave risk of harm. The district court erred in concluding that Reyes established an Article 13(b) defense.

 

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. 

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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.