A Child is Missing: The International Child Abduction Blog

Chafin v Chafin, --- S.Ct. ----, 2013 WL 598436 (U.S.) [Scotland][ Federal & State Judicial Remedies - Appeals - Mootness]

2013-05-02T13:51:00.000-04:00

In Chafin v Chafin, --- S.Ct. ----, 2013 WL 598436 (U.S.) Petitioner Jeffrey Lee Chafin was a citizen of the United States and a sergeant first class in the U.S. Army. While stationed in Germany in 2006, he married respondent Lynne Hales Chafin, a citizen of the United Kingdom. Their daughter E.C. was born the following year. Later in 2007, Mr. Chafin was deployed to Afghanistan, and Ms. Chafin took E.C. to Scotland. Mr. Chafin was eventually transferred to Huntsville, Alabama, and in February 2010, Ms. Chafin traveled to Alabama with E.C. Soon thereafter, Mr. Chafin filed for divorce and for child custody in Alabama state court. Towards the end of the year, Ms. Chafin was arrested for domestic violence, an incident that alerted U.S. Citizenship and Immigration Services to the fact that she had overstayed her visa. She was deported in February 2011, and E.C. remained in Mr. Chafin's care for several more months. In May 2011, Ms. Chafin initiated this case in the U.S. District Court for the Northern District of Alabama. She filed a petition under the Convention and ICARA seeking an order for E. C.'s return to Scotland. On October 11 and 12, 2011, the District Court held a bench trial. Upon the close of arguments, the court ruled in favor of Ms. Chafin, concluding that E. C.'s country of habitual residence was Scotland and granting the petition for return. Mr. Chafin immediately moved for a stay pending appeal, but the court denied his request. Within hours, Ms. Chafin left the country with E. C., headed for Scotland. By December 2011, she had initiated custody proceedings there. The Scottish court soon granted her interim custody and a preliminary injunction, prohibiting Mr. Chafin from removing E.C. from Scotland. In the meantime, Mr. Chafin had appealed the District Court order to the Court of Appeals for the Eleventh Circuit. In February 2012, the Eleventh Circuit dismissed Mr. Chafin's appeal as moot in a one-paragraph order, citing Bekier v. Bekier, 248 F.3d 1051 (2001). In Bekier, the Eleventh Circuit had concluded that an appeal of a Convention return order was moot when the child had been returned to the foreign country, because the court "became powerless" to grant relief. 248 F.3d, at 1055. In accordance with Bekier, the Court of Appeals remanded this case to the District Court with instructions to dismiss the suit as moot and vacate its order. On remand, the District Court did so, and also ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs, attorney's fees, and travel expenses. Meanwhile, the Alabama state court had dismissed the child custody proceeding initiated by Mr. Chafin for lack of jurisdiction. The Alabama Court of Civil Appeals affirmed, relying in part on the U.S. District Court's finding that the child's habitual residence was not Alabama, but Scotland.

The Supreme Court in an opinion for a unanimous Court by Chief Justice Roberts held that father's appeal from the order entered by the district court was not rendered "moot" by fact that mother had returned with daughter to Scotland, abrogating the Eleventh Circuit opinion in Bekier v. Bekier, 248 F.3d 1051. It held that a case "becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. As long as the parties have a concrete interest, however small, in the outcome of t he litigation, the case is not moot. Because the Chafins continued to vigorously contest the question of where their daughter will be raised, this dispute was very much alive. This case did not address "a hypothetical state of facts," ,and there continued to exist between the parties "that concrete adverseness which sharpens the presentation of issues. Mr. Chafin sought typical appellate relief: reversal of the District Court determination that E. C.'s habitual residence was Scotland and, upon reversal, an order that E.C. be returned to the United States. The question was whether such relief would be effectual. In arguing that this case was moot because the District Court has no authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers, Ms. Chafin confused mootness with the merits. Mr. Chafin's claim for re-return could not be dismissed as so implausible that it is insufficient to preserve jurisdiction, and his prospects of success are therefore not pertinent to the mootness inquiry. As to the effectiveness of any relief, even if Scotland were to ignore a re-return order, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin and may command her to take action under threat of sanctions. She could decide to comply with an order against her and return E.C. to the United States. Enforcement of the order may be uncertain if Ms. Chafin chose to defy it, but such uncertainty does not typically render cases moot.

Mr. Chafin also sought vacatur of the District Court's expense orders. That too is common relief on appeal, and the mootness inquiry comes down to its effectiveness. In contending that this case is moot due to Mr. Chafin's failure to pursue an appeal of the expense orders, which were entered as separate judgments, Ms. Chafin again confused mootness with the merits. Because there is authority for the proposition that failure to appeal such judgments separately does not preclude relief, it is for lower courts at later stages of the litigation to decide whether Mr. Chafin is in fact entitled to the relief he seeks. That relief would not be " 'fully satisfactory,' " but "even the availability of a 'partial remedy' is 'sufficient to prevent [a] case from being moot.

Justice Roberts noted that manipulating constitutional doctrine and holding these cases moot is not necessary to achieve the ends of the Convention and ICARA, and may undermine the treaty's goals and harm the children meant to be protected. If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. Such routine stays would
conflict with the Convention's mandate of prompt return. He stated that Courts should apply the four traditional stay factors in considering whether to stay a return order: " '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.' " Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child's best interests. He pointed out that “Importantly, whether at the district or appellate court level, courts can and
should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so....Cases in American courts often take over two years from filing to resolution; for a six-year-old such as E. C., that is one-third of her lifetime. Expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child.

The judgment of the United States Court of Appeals for the Eleventh Circuit was vacated, and the case was remanded for further proceedings consistent with the opinion.

Ozaltin v Ozaltin, 708 F.3d 355 (2d Cir. 2013) [Turkey] [Rights of Access] [Attorney Fees]

2013-05-02T13:50:00.002-04:00

In Ozaltin v Ozaltin, 708 F.3d 355 (2d Cir. 2013), in December 2010, when the Ozaltins stopped cohabitating in Turkey, the Mother took the children to reside with her in New York City. ) Petitioner-appellee Nurettin Ozaltin ("the Father") brought suit seeking the return of his two minor children to Turkey, as well as an order enforcing his rights under Turkish law to visit the children as long as they stayed in the United States with their mother, respondent-appellant Zeynep Tekiner Ozaltin ("the Mother"). In an order dated June 5, 2012, the district court ordered that the Mother return the children to Turkey by July 15, 2012; allow the Father to visit with the children in the United States on alternating weekends prior to their return to Turkey (the "access order") in compliance with a prior order of a Turkish court; and (3) pay the Father's necessary expenses in bringing the suit (the "costs award"). In re S.E.O., 873 F.Supp.2d 536, 546 (S.D.N.Y.2012). Although the Mother returned the children to Turkey on July 15, 2012, she appealed from the District Court's order arguing that her removal of the children from Turkey in 2011 was not "wrongful" under the terms of the Hague Convention because it was authorized by the Third Family Court in Uskudar (the "Third Family Court")-a Turkish court that has been handling the Ozaltins' divorce and child-custody proceedings since February 9, 2011; that the District Court lacked jurisdiction to consider the Father's claim for visitation; and that awarding necessary expenses would be improper both because she should prevail on the merits with respect to the return order, and because of the particular circumstances of this suit.

The Second Circuit affirmed the District Court's return order and vacated the costs award. It held that (1) The petitioner met his burden of showing that he retained custody rights under Turkish law, and that respondent ( Mother) removed the children from Turkey in interference with his exercise of those rights. (2) Federal law creates a private right of action to enforce access rights protected under the Hague Convention. See 42 U.S.C. § 11603(b). (3) When a district court considers awarding costs to a prevailing petitioner who obtains a return order under the Hague Convention, the court shall award "necessary expenses" relating to the action unless doing so would be "clearly inappropriate." 42 U.S.C. § 11607(b)(3). This standard is discretionary in
nature and is governed by general equitable principles. (4) In the circumstances of this case, an award of all necessary expenses would be "clearly inappropriate."It remanded the cause to the District Court to determine appropriate costs in the first instance.

Nurettin and Zeynep Ozaltin (the Father and Mother, respectively) were dual citizens of Turkey and the United States. They were married in 2001 and had two daughters, S.E.O. (age 9) and Y.O. (currently, age 7), who were also dual citizens of Turkey and the United States. Prior to December 2010, the children resided primarily in Turkey, where they attended school. The Mother alleged that in December 2010, she and the Father got into a heated argument about his purported drinking problem, and that during that argument he threatened her and told her to take their two children and leave. Within a day, the Mother and the children flew to New York City, where the Mother had family. The Mother alleged that during a layover in Europe, she spoke on the phone with the Father, who angrily told her that she and the children should stay in the United States. About two weeks later, on January 7, 2011, the Father filed an application with the Turkish Ministry of Justice seeking the return of the children to Turkey pursuant to the Hague Convention. On February 9, 2011, the Mother initiated divorce proceedings in the Third Family Court in Uskudar. In May 2011, the Father petitioned the Third Family Court for "the court to provisionally grant [him] the parental custody of the children." In the alternative, he requested "an order that [would] require [ ] the children to be brought to Turkey and [would] grant[ ] [him] visitation rights." On May 13, 2011, the Third Family Court declared that the Father's "request for grant of provisionary parental custody is rejected at this point," but it granted him "the possession of the children from 10 am on Saturdays until 12 pm on Sundays every first and third weeks of the month if he goes to the USA." The Father exercised his visitation rights in New York several times between May and August 2011. On March 30, 2012, the Third Family Court rejected another request by the Father for temporary custody, but it ordered that he be allowed to visit with the children on alternating weekends in the United States pursuant to the same visitation schedule that the court had ordered on May 13, 2011.

On March 30, 2012 the Father filed this action under 42 U.S.C. § 11603(b), seeking an order enforcing his visitation rights, pursuant to Article 21 of the Hague Convention. Article 21 provides:

An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

The father also sought an order requiring the Mother to return the children to Turkey, pursuant to Article 12 of the Hague Convention; and a costs award in an amount to be determined at the end of the litigation, pursuant to Article 26 of the Hague Convention. Article 26 provides, in relevant part:

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

In April and May of 2012 the District Court held evidentiary hearings. Both the Father and the Mother proffered testimony by Turkish legal experts as to the parties' respective custody rights. The District Court issued it’s a memorandum opinion and order on June 5, 2012, requiring the Mother to (1) comply with the Turkish court's visitation order, (2) return the children to Turkey by July 15, 2012, and (3) pay the Father for any "necessary expenses" incurred in connection with the suit.

On July 15, 2012, the Mother returned the children to Turkey pursuant to the District Court's order. Since then, Turkish courts have issued several orders pertinent to questions raised in this appeal. On September 14, 2012, the Court of Appeals granted the Father's unopposed motion to take judicial notice of these recent Turkish orders.

The Court of Appeals observed that for the purposes of this appeal, the pivotal issue was whether the Third Family Court actually exercised its authority to award custody to one of the parties, either by granting sole custody rights to the Mother, or by redefining the parents' respective rights such that the Mother could take the
children to the United States without breaching the Father's custody rights. (Turkish Civil Code available at http:// www. hcch. net/ upload/ abduct 2011 cp_ tr 1. pdf (website of the Hague Conference on Private International Law). It found that the district Court's conclusion that the Father retained custody rights under Turkish law was well-founded. The Turkish Ministry of Justice-the Turkish "Central Authority" within the meaning of the Hague Convention submitted a letter to the U.S. Department of State explaining that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use[d] to exercise those rights." The Ministry of Justice explained that the Mother, therefore, was "in breach of [the Father's] rights of [ ] custody under the law of Turkey in which the children were habitually resident before the removal." The Mother disputed this conclusion, arguing that the Ministry of Justice was not aware of the various orders of the Third Family Court in Uskudar purportedly granting (or at least endorsing) her custody of the children. Be that as it may,
a removal under the Hague Convention can still be "wrongful" even if it is lawful. The evidence offered at trial showed that the Father retained custody rights-including the right to determine the children's residence-under Turkish law, even if the Mother had primary custody of the children. Most importantly, the Mother did not point to an order of the Third Family Court explicitly recognizing her sole custody of the children, or explicitly recognizing her right to remove the children to the United States without breaching the custody rights of the Father. The Court held that he children were wrongfully removed under the Hague Convention, and it affirmed the District Court's return order.

The District Court awarded to the Father "any necessary costs ... incurred in connection with this action. The Mother argued that "federal courts lack subject matter jurisdiction over claims seeking to enforce rights of access." She claimed, petitioners may seek to enforce rights of access only in state court or through the State Department, which is the United States's designated "Central Authority" under the Hague Convention. The Court found that the Mother's argument was not jurisdictional in nature but instead goes to whether 42 USC § 11603(b) creates a federal right of action. Disagreeing with the Fourth Circuit, which held that it does not, (Cantor v. Cohen, 442 F.3d 196 (4th Cir.2006), it found that the statutory basis for a federal right of action to enforce access rights under the Hague Convention was in the implementing legislation. According to the enacting legislation, "[t]he courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the [Hague] Convention." 42 U.S.C. § 11603(a). The statute then announces the actions falling within that category: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.. 42 USC § 11603(b). The statute provides for the relevant burden of proof in access cases: "A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence ...in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights." 42 USC § 11603(e)(1)(B) These statutory provisions straightforwardly establish that a petitioner may "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child," and that "United States district courts shall have concurrent original jurisdiction" over such actions. Moreover, § 11603(e)(1)(B) underscores that actions arising under the Convention include "an action for arrangements for organizing or securing the effective exercise of rights of access." Accordingly, s 11603 unambiguously creates a federal right of action to secure the effective exercise of rights of access protected under the Hague Convention. The Hague Convention explicitly recognizes that if a Contracting State provides a judicial forum, petitioners seeking to enforce access rights may initiate judicial proceedings directly: This Convention shall not preclude any person ... who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention. Hague Convention, art. 29. Thus, initiating a petition with a State's Central Authority "is a nonexclusive remedy" for enforcing access rights. Article 29 permits the person who claims a breach of custody or access rights, as defined by Articles 3 and 21, to bypass the Convention completely,
by invoking other applicable laws or procedures, such as provisions in ICARA. In sum, even though not required under Article 21, federal law in the United States provides an avenue for aggrieved parties to seek judicial relief directly in a federal district court or an appropriate state court.

The Court of Appeals observed that the Hague Convention provides that "[u]pon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child ... to pay necessary expenses incurred by ... the applicant." Hague Convention, art. 26. These "necessary expenses" may include "travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child." ICARA provides that: Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. Although Article 26 of the Hague Convention provides that a court "may" award "necessary expenses" to a prevailing petitioner, § 11607(b)(3) shifts the burden onto a losing respondent in a return action to show why an award of "necessary expenses" would be "clearly inappropriate." Nonetheless, § 11607(b)(3) retains what we the Court had previously described as the "equitable" nature of cost awards. Accordingly, a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when "attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion." There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the relevant considerations. It vacated the District Court's award of "any necessary costs [that the Father] incurred in connection with this action," In re S.E.O., 873 F.Supp.2d at 546, because the Mother had a reasonable basis for removing the children to the United States. It also had concerns that, contrary to the spirit of the Hague Convention, the Father may have engaged in forum shopping with respect to certain aspects of the suit. While the Turkish court orders did not justify the Mother's removal of the children to the United States, they nonetheless suggested that her actions did not "run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes." In its view, an award of full expenses was unwarranted in light of the Mother's reasonable basis for thinking that she could remove the children from Turkey

Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) [Italy] [Grave Risk of Harm]

2013-05-02T13:49:00.002-04:00

In Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) Emiliano Ermini ("Petitioner"), an Italian citizen, petitioned the seeking the return of his two sons to Italy alleging that the two boys, E.E., age 9, and D.E. age 7, who were Italian citizens, had been retained in the United States by their mother, Respondent Viviana Vittori ("Respondent"), also an Italian citizen, without Petitioner's consent. After a trial the district Court denied the petition without prejudice to renewal if D.E. was not able to continue with his current CABAS program and the Italian court system issued a final order requiring the return of the children to Italy. Petitioner's request for an award of legal fees and costs and expenses was also denied.

Petitioner and Respondent, the parents of E.E. and D.E., were married in Italy in July 2011. Respondent had initiated divorce proceedings in Italy and the parties were now legally separated. The family came to the United States in August 2011 in connection with efforts to secure effective medical and rehabilitative treatment for D.E., who was autistic. D.E. was diagnosed with autism on March 14, 2008, when he was approximately two years old. Petitioner and Respondent were both committed to helping D.E. and took him to various doctors in Italy as well as abroad in Scotland for medical treatment. When Petitioner and Respondent's own resources were inadequate to pay for the treatments, they solicited donations through a website and a blog about D.E. Dr. Antonucci was D.E.'s primary treating professional in Italy from December of 2008 until May of 2010. One of the treatments that Dr. Antonucci recommended for D.E. was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Velletri, Italy. He also treated D.E. for gut inflammation, heavy metal intoxication and viral issues believed to be underlying physical causes of autism. D.E.'s "support teacher" at his school in Italy did not know any specific techniques for treating children with autism. On their own initiative, Petitioner and Respondent attended training in Applied Behavioral Analysis ("ABA") techniques at a private institution, Pianeta Autismo, and Respondent attended three additional courses. With the permission of the principal of D.E.'s school, Respondent spent two hours each day at D .E.'s school, instructing the support teacher in the ABA techniques. Petitioner and Respondent also consulted with another doctor in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for D.E. According to Respondent's expert, Dr. Fiorile, ABA therapy is "the most common treatment" for children with autism in the United States and it can have an enormous impact on the life of an autistic child Dr. Antonucci also endorsed ABA treatment. Respondent estimated that she personally provided 70-80% of D.E.'s thirty to forty weekly hours of ABA treatment while the family were living in Italy. Professional ABA treatment would have been preferable but very expensive. The Italian national health care system covered 90 minutes a week of psychomotility therapy for D.E. for the first year after his autism diagnosis, with an extra 90 minutes of speech therapy during the second year, but did not pay for other types of treatment or therapy for D.E. Both Respondent and Petitioner were unhappy with the options for D.E.'s schooling and therapy in Italy as they did not see results in D.E.'s developmental progress. They began to look elsewhere for treatment options, and in October of 2009, the family traveled to Florida for a week, at the recommendation of Dr. Antonucci, to consult with an American doctor about therapies available for D.E. in the United States. In April or May of 2010, Petitioner and Respondent met Dr. Giuseppina Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a practice in Suffern, New York, who focused on children with special needs. In August of 2010, Petitioner and Respondent traveled with E.E. and D.E. to Suffern, New York, so that Dr. Feingold could assess and begin treating D.E. The family stayed with Respondent's first cousins, John and Patricia Tempesta, at their home in Ridgefield, Connecticut. During that August 2010 visit, they met other parents at Dr. Feingold's clinic, who told them about provisions for special needs children at the local schools in the Suffern area. Both Respondent and Petitioner were impressed
by the treatment options available for D.E. in the United States. Around this time, Petitioner and Respondent began to formulate a plan for the family to move to the United States for two or three years, during which time Petitioner and Respondent could decide if it would be possible and appropriate to make a permanent move to the United States. Meanwhile, Petitioner began meeting with Marcello Russodivito, to whom he had been introduced through one of Mr. Tempesta's contacts, about potentially investing in Mr. Russodivito's restaurant so that he could obtain a business visa for himself and derivative ones for his family, which would allow them to pursue treatment for D.E. in the United States. Mr. Russodivito understood that Petitioner planned to fund the restaurant investment by selling the family's house in Italy.

On September 2, 2011, Petitioner and Respondent co-signed a one-year lease for a house near Mr. Russodivito's restaurant. On September 15, 2011, Respondent, E.E. and D .E. moved into that house. In October, Mr. Russodivito arranged for one of his employees, Pasquale Ruggiero, to share the house with them. In September and November, E.E. and D.E. were enrolled in the local public schools. In an email to Respondent at the time, Petitioner said that they should ship "books, clothing, any furniture we can't sell, ornaments, dishes, sheets, blankets" in a cargo container from Italy to the United States. Petitioner also researched the cost of shipping D.E.'s hyperbaric oxygen chamber. On September 13, 2011, Petitioner wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of "explor[ing] the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States." Respondent traveled with the two children to Italy to renew their United States visas in November 2011 and then the children and Respondent returned to Suffern, while Petitioner went to Italy to finish settling the family's affairs. Petitioner did not return to the United States until December 2011.

Meanwhile, on September 20, 2012, Petitioner applied to the Italian court for an order directing the Respondent to return with the children to Italy and provisions for visitation with the children. With only Petitioner in attendance, the court in Velletri ordered Respondent to return to Italy with the children and also ordered temporary measures including that Petitioner and Respondent would live separately but share parental authority; that Respondent and the children would live in the family home; that Petitioner could visit 8–12 hours per week; and that Petitioner would pay spousal and child support of 1,600 Euros per month. At the time of trial, Respondent had not complied with the Italian court's order to return to Italy with the children, nor had there been visitation or any other contact between Petitioner and the children. Respondent appealed the Velletri Court's order and, on April 5, 2013, the Court of Appeals in Rome vacated several provisions of the September 20, 2012, Order and granted Respondent exclusive custody of the children. The April 5, 2013, Order, also withdrew the Velletri Court's prior order requiring that Respondent return to Italy, revoked the award of the family home to Respondent, and revoked the Petitioner's visiting rights and rights of access to the children. Although the April 5, 2013, Order provided Respondent with exclusive custody of the children, it did not necessarily moot Petitioner's application to the district Court because it was a temporary order, which appeared to have been designed, at least in part, to conform to Family Court protective orders in the United States, which are were in effect until 2014. It expressly contemplated further investigative and adjudicative proceedings in the lower court.

Petitioner again left for Italy in early January 2012, following an altercation with Respondent . The two children had not left the United States since November of 2011, but Respondent left the country again in April 2012, to attend court proceedings in Italy. On December 1, 2012, Respondent and the two children moved to their current residence in Suffern with Mr. Ruggiero. Petitioner never relocated to the United States.

D.E. was severely autistic and had only a limited capacity for speech. He did not appear in court. Respondent and Mr. Ruggiero took care of feeding D.E., grooming him and ensuring that he was supervised and occupied. According to Respondent and to Dr. Fiorile, D.E. had significantly progressed in his school environment in the United States and was moving closer to being able to lead an independent life. When he first began school in the United States, D.E.'s test results were far below average; at age six, he presented with the fine motor skills of a three year old. Dr. Fiorile opined that D.E. performed poorly on the testing because his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS program, which D.E. currently attended at a school in Stony Point, New York, offered the best ABA curriculum available to autistic children. Dr. Fiorile testified that D.E. had "one-to-one instruction" throughout the day and had made "exceptional progress" Dr. Fiorile explained that the high level of intervention in D.E.'s current classroom setting was the key to his success. Dr. Fiorile further opined that D.E. required a program like the one in which he was currently enrolled to continue to making meaningful progress in, among other things, cognition, language, social and emotional skills. Dr. Fiorile further opined that, if D.E. "were to be removed from this educational program and not provided this intensity of educational programming that's being provided by highly skilled and trained professionals" he will face "a severe loss of the skills he has successfully developed since beginning in CABAS ...." (“CABAS” is an acronym for Comprehensive Application of Behavioral Analysis to Schooling and it is “an intensive, data-driven specialized ABA program.” ) While the United States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of fewer than twenty in Italy. Dr. Fiorile concluded in her January 11, 2013, Report, admitted into evidence at trial, that if D .E. was separated from his CABAS program, he "will most certainly fail to make the same level of progress and will, without doubt, demonstrate significant skill regression" and that it would be "extremely harmful" to return him to Italy at this time. The Court found that separating D.E. from the CABAS program, while it remained available to him, would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.

Respondent testified that she and the children did not currently have legal immigration status in the United States, as they overstayed their visas in April of 2012. In October or November of 2012, Respondent applied for a visa for herself and the children on the basis of the domestic abuse that she suffered. Her application was currently pending.

The district court found that Petitioner and Respondent intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatments would be pursued for D.E., and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family's ties to Italy.

The court concluded that the children's habitual residence for Hague Convention purposes at the time of their retention in the United States was Italy. The Court took judicial notice of Title IV, Italian Civil Code of Law, Art. 316 ("[a] child is subject to the authority of its parents until majority ... or emancipation. The authority is exercised by both parents by mutual agreement") and Title IV, Italian Civil Code of Law, Art. 144 ("[t]he spouses agree between them the pattern of family life and fix the residence of the family according to the requirements of both and to those prevailing for the family. Each of the spouses has the authority to implement the agreed pattern"). Thus, Petitioner had rights of custody under Italian law in April 2012, when the retention of the children in the United States began. It also found that the Petitioner had been exercising his rights and the he had established a prima facie case for return.

Nevertheless, the district court found by clear and convincing evidence that, because D.E. was severely autistic, he faced a grave risk of harm if he had to return to Italy, as the return would severely disrupt and impair his development. It observed that in this Circuit, courts have emphasized the severity of the psychological or physical harm required under the "grave risk of harm" affirmative defense. See, e.g., Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299 JG, 2005 WL 67094, at *6 (E.D.N.Y. Jan.13, 2005) ("[t]here is a spectrum of harms a repatriated child may suffer. At one end 'are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation' "). Because "returning a child is likely to present adjustment concerns in almost every Convention case," the Court should examine whether the child is likely to "suffer
long-term permanent harm if returned." In re Lozano, 809 F.Supp.2d at 222.

D.E. had the fine motor skills of a child half his age when he first came to the United States. He was enrolled in a premier ABA school program and had made significant developmental progress. Dr. Fiorile had proferred credibly that, if D.E. left the Stony Point CABAS program even temporarily, he would face a significant regression in his skills and that without such an intensive, structured program, D.E. would not develop the cognitive, language, social, emotional and independent living skills that he was likely to acquire through such a program. Petitioner did not present any testimony controverting Dr. Fiorile's considered assessment. Respondent had also proven that there was a significant lack of resources in Italy for treating autism as compared to those available in the United States. D.E. had multiple doctors in Italy who were involved in his care including, Dr. Nicola Antonucci and Dr. Claudia Lerz. However, he met with most of these doctors infrequently and none of them were able to provide the intensive behavioral instruction that D.E. had been able to receive in the United States. There was no indication that D.E. could ever obtain the treatment and resulting positive prognosis that he has gained through the CABAS program were he to return to Italy. The Court found that the predicted deterioration in D.E.'s cognition, social skills and self-care if D.E. was separated from the CABAS program, to which Dr. Fiorile had testified, constituted psychological and physical harm sufficient to establish the "grave risk of harm" affirmative defense. As even a brief separation from the CABAS program would likely lead to a severe regression in D.E.'s progress, Respondent had shown by clear and convincing evidence that returning D.E. to Italy and separating him from the CABAS program posed a grave risk of harm to D.E. and would place him in an intolerable situation.

The testimony at trial established by clear and convincing evidence that E.E. and D.E. had a loving and close relationship and enjoyed spending time in each other's company. It was also established that E.E. helped his mother in caring for his brother. The district court observed that 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. See, e.g., Blondin, 78 F.Supp.2d 283, 291 (S.D.N.Y. Jan.12, 2000) (declining to separate children because "children's relationships with their siblings are the type of intimate human relationships that are afforded a substantial measure of sanctuary from unjustified interference by the state") (quoting Aristotle P. v. Johnson, 721 F.Supp. 1002, 1005-06 (N.D.Ill.1989)); Broca v. Giron, No. 11 CV 5818(SJ)(JMA), 2013 WL 867276, at *9 (E.D.N.Y. Mar. 7, 2013) (deciding not to "further fracture the family unit" and separate the siblings). D.E. would face a significant disruption of his routine and general happiness were his older brother to return to Italy. Such a separation was also likely to harm E.E., since the one parent with whom he had a good relationship would have to remain in the United States to care for D.E. Having found that D.E. would face a grave risk of harm if separated from the CABAS program and repatriated to Italy, the Court would not separate the two brothers. Therefore, the Petition was denied as to both children, without prejudice to renewal if D.E. was no longer able to participate in the CABAS program and if the Italian court system issued a final order requiring the return of the children to Italy.

Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013) [Poland] [Federal & State Judicial Remedies] [Well Settled]

2013-05-02T13:48:00.002-04:00

In Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013)(not selected for publication in the Federal Reporter) Respondent Yashmun Filipczak, the Mother, appealed from the judgment of the United States District Court for the Southern District of New York finding that Poland was the country of habitual residence for the Mother's two minor children and ordering the children's return to Poland. Petitioner Wojciech Filipczak, the Father, brought the case against her under the International Child Abduction Remedies Act (“ICARA”). At trial, the Mother did not contest that she had wrongfully removed the children from Poland, but argued that she qualified for two exceptions to the Hague Convention's repatriation requirement: (i) that the children would face “grave risk” to their well being in Poland, Hague Convention, art. 13(b), and (ii) that the children were “well settled” in the United States, Hague Convention art. 12. In a decision and order dated December 23, 2011, the United States District Court for the Southern District of New York rejected the Mother's contentions and ordered that the children be returned to Poland.

The Second Circuit Court of Appeals affirmed. While the Mother was represented by counsel in the District Court, she appears pro se on appeal. Thus, it construed her submissions to the Court liberally and interpret them to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The Mother raised several arguments on appeal, all of which were without merit. First, she claimed that her removal of the children from Poland was not wrongful because she was forced to leave Poland due to the expiration of her visa. The Mother, however, failed to raise this argument before the trial court. Because the Mother gave no justification for her failure to make this argument below, the Court would not consider it for the first time on appeal. Bogle–Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). She also alleged a number of defects in the evidence presented to the District Court, including failure to authenticate e-mails between her mother and the Father, bias on the part of the guardian ad litem, and failure to conduct cross-examination of several witnesses. These arguments were also presented for the first time on appeal, without any explanation as to why they were not raised below, and the Court refused to consider them for the same reasons.

Finally, the Mother argued that the children had stronger ties to the United States than they did to Poland, and therefore should be permitted to remain. It held that this misconstrues Article 12. The standard under that provision does not call for determining in which location the child is relatively better settled, but rather for determining whether the child has become so settled in a new environment that repatriation would be against the child's best interest. Blondin, 238 F.3d at 164. The Mother made no such showing.

Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053 (C.A.1 (Puerto Rico)) [Puerto Rico] [Federal & State Judicial Remedies - Bond] [Rights of Custody]

2013-05-02T13:47:00.002-04:00

In Patrick v. Rivera-Lopez, --- F.3d ----, 2013 WL 388053 (C.A.1 (Puerto Rico)) Lisandro Patrick appealed a decision of the United States District Court for the District of Puerto Rico dismissing his petition for the return of his child under the Hague Convention and the district court's order that he post a bond to proceed with the case. In March 2012, Rivera absconded to Puerto Rico with her children. When Patrick discovered that Rivera had taken her children to Puerto Rico and did not intend to return to the United Kingdom, he filed a petition for the return of L.N.R. in the United States District Court for the District of Puerto Rico under the Hague Convention. The petition alleged that Rivera wrongfully removed L.N.R. from her habitual residence, the United Kingdom. Patrick did not petition for the return of Rivera's other child because he was not the child's biological father. On the eve of trial, October 11, Rivera moved to dismiss Patrick's petition under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Rivera argued in part that removal of a child is "wrongful" under the Hague Convention only if "it is in breach of [a person's] rights of custody," Hague Convention art. 3, and that Patrick had no rights of custody under the Convention because he was not registered as L.N.R.'s father in her birth certificate. The magistrate judge granted Rivera's motion to dismiss on the ground that Patrick never presented his affidavit of paternity to Puerto Rico's Vital Statistics Registry. Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.P.R. Nov. 8, 2012).

The Court of Appeals observed that Patrick had to allege facts sufficient to show that he has "rights of custody... under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention art. 3. Patrick alleged in his petition that L.N.R.'s habitual residence was the United Kingdom. For purposes of this appeal, Rivera did not dispute this allegation. Therefore, Patrick's rights of custody were determined with respect to United Kingdom law. "Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child." Children Act, (1989) § 2(1). On its face, this provision would appear not to apply to Patrick and Rivera, who married after L.N.R.'s birth, but "[r]eferences in this Act to a child whose father and mother were ... married to each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning)."Id. § 2(3). That section states that "references to a person whose father and mother were married to each other at the time of his birth include ... references to any person to whom subsection (3) below applies." Family Law Reform Act, (1987) § 1(2). Subsection (3) applies to "any person who ... is a legitimated person within the meaning of section 10 of [the Legitimacy Act 1976]."Id. § 1(3). That section defines "legitimated person" to include "a person legitimated or recognised as legitimated ... under section 2 or 3 above," Legitimacy Act, (1976) s 10(1), and Section 3 of the Legitimacy Act 1976 provides that where the parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of the marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the date of the marriage. ( The National Archives of the United Kingdom made these statutes available at http://www.legislation.gov.uk/) Based on these statutes, it concluded (as did the district court) that L.N.R.'s removal was wrongful under the Hague Convention if L.N.R. became legitimated under Puerto Rico law by virtue of Patrick's marriage to Rivera. With his petition, Patrick filed a letter from the International Child Abduction and Contact Unit (a unit of Ministry of Justice's Official Solicitor) stating that "[t]he parents are married to each other and therefore both have parental responsibility for [L.N.R.], pursuant to Section 2(1) of the Children Act of 1989.

The Court of Appeals noted that tor more than a century, Puerto Rico law has provided that a child born under the same circumstances as L.N.R. is legitimated by the subsequent marriage of her parents. When Spain ceded Puerto Rico to the United States in 1898, the Spanish Civil Code provided that "natural children," defined as children born out of wedlock to parents who could have married each other at the time of conception, may be legitimated by the subsequent marriage of their parents. Puerto Rico's Civil Codes of 1902 and 1911 contained similar laws. Puerto Rico's current law was the same, except that it no longer requires that a child's parents be eligible to marry each other at the time of the child's conception. Despite the clear language of the statute, the district court held that Patrick's marriage to Rivera did not legitimate L.N.R. under Puerto Rico law because Patrick did not present his affidavit of paternity to the Vital Statistics Registry of Puerto Rico. The court stated that a child born out of wedlock "will not be automatically considered as begotten by" a man and woman who later marry, unless they register the child as theirs.” Patrick, 2012 WL 5462677, at *6 (citing Ramos v. Rosario, 67 P.R.R. 641 (1947)). Neither opinion on which the district court relied adequately supported its decision. The 1911 Civil Code was superseded by laws that expand the range of ways in which a parent can acknowledge a child and the Supreme Court of Puerto Rico has held that under current law, "[t]he father, or in his default, his heirs, may acknowledge in any way their children, expressly or impliedly, regardless of the dates or circumstances of their births and for all legal purposes." Because Patrick needed only to acknowledge L.N.R. "in any way," his affidavit acknowledging L.N.R. as his daughter sufficed to establish that he was her father. Because Patrick was L.N.R.'s father, his marriage to Rivera legitimated L.N.R. Patrick alleged in his petition that he was the father of L.N.R ., Rivera admitted this allegation in her answer, and no one else challenged Patrick's paternity. It held that Patrick's marriage to Rivera legitimated L.N.R. under Puerto Rico law. As a result, Patrick had "parental responsibility" for L.N.R. under United Kingdom law, which meant that he had "rights of custody" under the Hague Convention. The district court erred when it dismissed Patrick's petition on the grounds that he did not have rights of custody.

The district court ordered Patrick to pay a $10,000 bond, stating that "[t]his bond will serve not only as a non-resident bond, but shall also respond to any damages that Respondent may incur should Petitioner not prevail on the merits." Patrick moved to vacate the bond requirement, arguing that the Hague Convention explicitly prohibits a court from requiring such a bond: "No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention." Hague Convention art. 22. The district court continued to assert the authority to impose a bond but reduced the amount of the bond to $500. In a minute order dated June 28, 2012, the district court relied on three opinions that refer to instances in which a court imposed a bond in a Hague Convention case: Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004); Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001); and Lops v. Lops, 140 F.3d 927 (11th Cir.1998).

The Court of Appeals held that the Hague Convention deprived the district court of authority to impose a bond on Patrick. It saw no distinction between a bond imposed to "respond to damages that Respondent may incur should Petitioner not prevail on the merits" and the bond that the Convention prohibits. The opinions on which the district court relied refer only in passing to a district court's imposition of a bond, without saying whether ordering the bond was within the court's power. Whiting, 391 F.3d at 545; Bekier, 248 F.3d at 1053 & n. 2; Lops, 140 F.3d at 948, 964. These opinions offered no reason to ignore the text of the Convention. It reversed the dismissal of Patrick's petition, vacated the order requiring that Patrick post a bond, and remanded the case to the district court with instructions to conduct a trial as soon as possible.

Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) [Mexico] [Grave Risk of Harm] [Age and Maturity]

2013-05-02T13:46:00.000-04:00

In Broca v. Giron, 2012 WL 7660123 (E.D.N.Y.) on November 30, 2011, petitioner Jose Leonides Varillas Broca ("petitioner") filed a petition under the Hague Convention alleging that his wife, respondent Mirna Mariana Gil Geron ("respondent"), wrongfully removed their three children from Mexico, and asking the Court for an order that the children be repatriated to Mexico. Petitioner was a Mexican citizen, and lived in Cardenas, Tabasco, Mexico. Respondent was also a Mexican citizen, and currently lived in Brooklyn, New York. The three children were all citizens of Mexico, but had been in the United States since July of 2010. Although initially petitioner brought this action regarding all three children, the oldest child had since turned sixteen and was therefore no longer subject to the Hague Convention.

On July 16, 2012, the Honorable Sterling Johnson referred the matter to a Magistrate to hold an evidentiary hearing and issue a Report and Recommendation. The Magistrate concluded that: (1) petitioner established a prima facie case for repatriation of his two children under the Hague Convention; (2) the children were not well settled in New York to an extent precluding repatriation under the Hague Convention; (3) respondent had not established that the grave risk of harm exception to repatriation applies; and (4) the mature child defense did not apply to prevent repatriation in this case. He recommended that this Court grant petitioner's petition for
repatriation of his two children to Mexico, the country of their habitual residence.

Petitioner and respondent were married in April of 1995 and began living together in Cardenar after their religious wedding ceremony on June 3, 1995. They had three children together, J.V. ("oldest child"), M.V. ("middle child"), and J.V. ("youngest child"), and the youngest two children were subjects of this action..The middle child was born on December 3, 1997, and was currently fourteen years old. The youngest child was born on October 16, 2002, and was currently nine years old. All three children were born in Mexico and were Mexican citizens. The middle child and youngest child attended school in Cardenas, and the middle child received very high marks. Petitioner and respondent lived together in their family home until February 2010. One night that month, petitioner and respondent had a fight. Tr. at 83:22-85:3; 123:21-125:14. According to respondent, petitioner had locked her out of the house, and that she entered the house through a window and got into bed. She says that petitioner accused her of cheating and told her she had to be examined by a doctor, and when she refused, he "began jerking [her] around." Petitioner confirms that he told respondent that she had to be examined by a doctor to see if she had sexual relations with someone else, but denies yelling at her.According to the middle child, her parents' fighting woke her up that night. After the fight, respondent took the middle child and youngest child and went to her mother's house. Respondent stayed with the two younger children at her mother's home until July of that year. Between February of 2010 and July of 2010, petitioner saw the children on
weekends and tried to stay involved in their lives. Respondent testified that during this time, she would sometimes run into petitioner on the street in their small town, that he would become violent and jerk her around on the street, and that he once forcibly tried to pull her onto his motorbike. In late July of 2010, she took the children out of Mexico, without telling petitioner or asking his permission. They traveled to Brooklyn to live with respondent's other sister, Gabriela, in New York City.

Petitioner denied having abused respondent or the children He did admit to having had at least one fight with respondent that turned physically violent. Respondent, on the other hand, claimed that petitioner abused her for nearly the entire duration of their marriage. She stated that when she was pregnant with the youngest child in 2002, petitioner kicked her and she fell down. She claimed that in the years 2008 and 2009, petitioner hit her often and was getting very violent. Respondent went to Mexico City to stay with her father four or five times during this period of time because she felt safe in her father's home. Respondent also claimed that petitioner was controlling and verbally abusive to her. Respondent's mother testified that she had seen bruises on respondent during her marriage to petitioner. According to the middle child, in Mexico, "[my parents] were fighting all the time and they like punched each other or hit and they yell at each other." She saw her father hit her mother, and "[l]ike he kick her or he like grab her by the hand and like throw her away." Respondent and the middle child both recounted an incident, occurring when the middle child was six or seven, wherein petitioner hit the middle child on the bottom with a broom. The middle child testified to another incident when petitioner hit her on the bottom with a belt. In her deposition, entered into evidence, respondent described a third incident with the middle child, wherein petitioner dragged her by the arm into the house. Respondent was not aware of any where petitioner abused the youngest child.

Dr. Evan Stark, who the court permitted to testify as an expert in domestic violence, testified at the hearing about the impact of domestic violence on women and on children who witness their mother's abuse. Dr. Stark concluded to a high degree of certainty that there was domestic violence in respondent's life, and that petitioner was coercive and controlling of respondent. He also testified about the general harms to children who observe a parent being abused, explaining that there are direct effects (including direct physical exposure and being involved in the violence) and indirect effects (including psychological disturbance). He explained that in order to conclude that the children in this case had suffered any psychological harm, he would need to perform a psychological assessment of the children. Dr. Stark, however, did not perform a psychological assessment of either child. Dr. Stark opined that the children face extreme risk if they were to be returned to Mexico to live with petitioner. When asked whether they would face risks if they lived in Mexico City with their mother, Dr.
Stark opined that "the risk [the children would face] would be largely a function of the willingness of the authorities to limit access of [petitioner] and it would be largely a function of the risk that [respondent] would face." Dr. Stark's prescription for what can be done to reduce the harm the children have already suffered from witnessing domestic violence is that: [the children should be sent] a strong message that tells them that no one has a right to do what was done to them or to expose them to what they were exposed to and that their mother's decision to put her own safety and their safety before their network of contacts and relationships with loved ones and family members is a decision that we respect and endorse. He characterized respondent's removal of the children from Mexico as "the single-most healthy act that could have been taken."

Respondent did not appear to make any arguments respecting petitioner's prima facie case and appeared to urge this Court to focus on the affirmative defenses respondent raises. The children lived their entire lives in their family home in Mexico, and had been living in the United States for only two years since their
removal. These facts alone were sufficient to establish that the children's habitual residence under the Hague Convention was Mexico. Petitioner established that removal of the children was in breach of his custody rights. He submitted evidence of Mexican law showing that he and respondent had joint custodial rights by virtue of being the children's parents, and that those custodial rights can only be terminated by judicial action. Petitioner also established that he was exercising his custody rights at the time of removal. At the time respondent removed the children from Mexico, the children had been living with respondent and her mother for approximately five months. During this time, the children spent weekends with petitioner, and he remained involved in their schooling. The Magistrate concluded that petitioner has proven by a preponderance of the evidence the Mexico was the habitual residence of the children, that petitioner had rights of custody, and that respondent removed the children from Mexico in breach of petitioner's custody rights. Therefore, petitioner raised a prima facie case of wrongful removal under the Hague Convention.

Respondent argued that petitioner has physically and psychologically abused her and the children, and that the children should remain in New York where they are attending school, receiving superior health care and education to that which they received in Mexico, and happily living in a circle of extended family. Under Article 13(b) of the Hague Convention, "a court may decline to repatriate a child if the party opposing repatriation establishes by clear and convincing evidence that repatriation would create a grave risk of physical or psychological harm to the child." Blondin IV, 238 F.3d at 157. The harms a child may experience if repatriated can be considered on a spectrum. Id. at 162.At one end are "those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences."Id. These situations do not constitute grave risk of harm under the Hague Convention. At the other end of the spectrum are "those situations in which a child faces a real risk of being hurt, physically or psychologically, as a result of repatriation." These situations do constitute grave risk of harm under the Hague Convention. If a court concludes that a child faces grave risk of harm, before it can decline to order repatriation, the court must determine whether there are any ameliorative measures that could be taken to reduce this risk and enable a child to return safely to his home country. Id. In fact, the Second Circuit has instructed that a finding of grave risk of harm, without consideration of ameliorative measures, is not sufficient to deny repatriation. The grave risk analysis must be based upon the "specific facts presented in th[e] case."Id. at 163 n. 12.A court may consider as non-dispositive factors whether the children are settled into their new environment, and whether the children have views on repatriation, taking into account the children's age and degree of maturity. Reyes Olguin v. Cruz Santana (Olguin II), No. 03-CV-6288, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005).

The Magistrate observed that in cases where respondents have established this defense, courts "have focused on evidence of a sustained pattern of physical abuse and/or a propensity for violent abuse." Laguna v. Avila, No. 07-CV-5136, 2008 WL 1986253, *8 (E.D.N.Y. May 7, 2008) (collecting cases). Evidence of sporadic or isolated incidents of abuse, or incidents aimed at persons other than the child at issue is typically not sufficient to establish grave risk of harm. In this case, there was no sustained pattern of physical violence against the children. The middle child testified to two incidents of physical abuse from her father, when he hit her on the bottom with a broom and a belt. According to respondent, the middle child was six or seven when the broom incident occurred, and petitioner said that he was trying to discipline the child. There was no evidence presented that petitioner had ever physically abused the youngest child. This evidence certainly does not show a sustained pattern of physical abuse of the children. The evidence did establish that petitioner abused respondent. Respondent testified to physical abuse that began early on in their relationship. The middle child verified that her parents were "fighting all the time and they like punched each other or hit and they yell at each other" and that she saw her father kick and grab her mother. Although some courts have found that a child witnessing extreme abuse may suffer psychological harms sufficient to invoke the grave risk of harm defense, the evidence did not support such a finding here. When asked whether she had any fears about returning to Mexico, the middle child responded that she was afraid people would talk about her. If she returned to Mexico, she would not want to live with her father anymore because she doesn't "want anything to happen again." Although she did not elaborate, I infer that she does not want her parents to fight. DDr. Stark's testimony merely confirmed that the relationship between petitioner and respondent was abusive, and that, generally speaking, children are negatively impacted by witnessing one parent abuse the other. Dr. Stark interviewed respondent for four hours, but spent very little time with the two children. He agreed that in order to conclude that the children had suffered serious psychological harms, a psychological assessment would need to be done on the children. Nevertheless, without conducting such an assessment, he gave his opinion of the harm caused to the children, and the risks they faced upon return to Mexico. He characterized the harms suffered by the children as "serious," from having been "exposed and repeatedly exposed to [petitioner's] abuse of [respondent]." Dr. Stark's opinions were easily distinguished from expert testimony that has been found to support denial of repatriation based on grave risk of harm. First, Dr. Stark's testimony about the general risks of harm to children witnessing a parent's abuse did not establish that these harms actually occurred in this case. See Blondin IV, 238 F.3d at 163 n. 12 (explaining that the grave risk of harm exception requires a close examination of the particular facts relating to the child at issue). Indeed, Dr. Stark testified that, although he did not perform a psychological assessment of the children, "[he] didn't observe and [respondent] did not report to [him] that the children had suffered any extreme psychological harms." Second, unlike cases where courts have denied repatriation based on children observing a parent's abuse, Dr. Stark did not conclude that the children would suffer trauma solely as a function of their return to Mexico. See Blondin IV, 238 F.3d at 166 (affirming district court's application of the grave risk of harm defense where the district court concluded that the mere return of a child to her home country would trigger post-traumatic stress disorder); Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408 (E.D.N.Y.2005) (children witnessed physical abuse of a parent, and mere return to their home country would trigger post-traumatic stress disorder). The evidence does not establish that the children have suffered extreme harm, or would suffer a grave risk of harm if repatriated. Respondent bases her argument on several cases where courts in other Circuits found grave risk of harm based on a child's observation of one parent's abuse of the other parent. In these cases, however, the evidence established that the conduct of the violent parent was extreme. In this case, the admissible evidence shows that petitioner was physically and emotionally abusive to respondent on a number of occasions, and that the physical abuse involved, at most, kicking and hitting. There is no evidence that petitioner was uncontrollably violent or threatened anyone's life.

Even if the Court were to conclude that the children faced a grave risk of harm from return to the custody of their father, this Court would need to consider the options for repatriation that might reduce that risk. Blondin IV, 238 F.3d at 163 n. 11. Here, the record indicated that there were arrangements available to the family that could ameliorate that risk. When asked about the risks the children would face if they were to return to Mexico with their mother while living in Mexico City, Dr. Stark opined that "the risk would be a function of the willingness of the authorities to limit [petitioner's] access to his wife." Respondent did not argue that these ameliorative options are foreclosed by nature of Mexican law, or that she has already exhausted the possible ways she could live away from petitioner, but remain in Mexico with the children. She argues merely that, based on Dr. Stark's opinion, "she will not be safe if she returns to Mexico," Respondent's own testimony, however, indicated that she felt safe in Mexico City with her father. The evidence indicated that it was possible for respondent and the children to live safely in Mexico City, and presumably for respondent to negotiate visitation with petitioner or seek a judicial decree of divorce and/or a change in custodial arrangement from the Mexican courts. Respondent testified that "in [Mexico] no one pays attention to women who are abused. On other occasions when [abuse] has happened, I had wanted to bring charges. But unfortunately sexism is very rampant in Mexico." She also testified that after the incident in February of 2010, she and petitioner went to court and were told that they should "work things out for the sake of [the] children." There was no evidence that respondent has sought any other help from authorities or social resources, nor that she has attempted to initiate divorce proceedings.Therefore, because the evidence did not support a finding of grave risk of harm to the children and there wereoptions for the safe return of the children to Mexico, the Court could not deny repatriation based on the grave risk of harm exception under Article 13(b) of the Hague Convention.

Respondent argues that petitioner instituted these proceedings more than one year after the children were removed from Mexico, and that the children are well settled in the United States.. The evidence establishes that petitioner instituted these proceedings more than one year after respondent removed the children from Mexico. The children had been in the country for two years but moved four times. The family never had its own residence. Respondent worked several waitressing jobs since she came to New York, and did not pay taxes on her wages. She was here illegally, as were the children. The middle child spent the first twelve years of her life in Mexico, and had only been in the United States for the last two years. Although the youngest child has spent a larger portion of his life here because he was only nine years old, he was struggling with English and not doing well in school. These factors, taken together, indicated that the children were not well settled within the meaning of the Hague Convention.

Respondent argued that the middle child objected to her return to Mexico, and that she was of sufficient maturity that this Court should take her objection into account. The middle child, who testified with an impressive command of the English language even though she knew no English when she came here two years ago,
impressed the Court as intelligent and well-spoken. It found her testimony compelling and very credible, and believed that she gave honest answers about why she wanted to stay in the United States. Her reasons for objecting to her return, however, did not provide a basis for the Court to deny repatriation. She testified about the problems in her family when asked specifically about them, but when asked what she did not like about Mexico, she responded that she did not like the people because she lived in a small town and the people were talking about her all the time. When asked what she likes about life away from Mexico, she said that she liked Texas "because it's pretty," and that she likes New York because of the tall buildings, her friends, and her family. When asked why she did not want to return to Mexico she responded, "Because I made friends here and I'm more comfortable here."Id. at 183:14-15.She elaborated that she is more comfortable here because her family is here. When asked if she had any worries or fears if she were to go back to Mexico, she responded, "[t]hat I don't-when I grow up I don't be a lawyer." When asked if she was afraid of anything in Mexico, she responded, "[j]ust that people are going to talk about me. The middle child also testified that she wants to stay in the United States because she will get a better education and have a chance to be a lawyer. These reasons expressed "a
well-adjustment to life in the United States and a simple preference for the luxuries of living in New York," which is not sufficient to establish the mature

Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) [Singapore] [Grave Risk of Harm]

2013-01-05T13:32:00.001-05:00

In Souratgar v Fair, 2012 WL 6700214 (S.D. N.Y., 2012) the district court granted the Petition of Abdollah Naghash Souratgar, an Iranian citizen, for the return of his son, Shayan, to Singapore. Shayan. The child was born in Singapore and had Malaysian citizenship. Shayan’s mother, respondent Lee Jen Fair, a Malaysian citizen, left Singapore with Shayan on May 20, 2012 without petitioner’s knowledge or consent and in violation of a Singapore court order prohibiting either parent from taking the child out of Singapore and traveled to the United States. On October 18, 2012, shortly after the father learned that the child and respondent were living in Dutchess County, New York, he filed a petition with this Court. After hearing the testimony from the petitioner and his investigators, the Court granted an ex parte application for an order directing the U.S. Marshal to take "all necessary and lawful steps" to "remove Shayan" from his mother’s custody and deliver him "into the custody of [p]etitioner." Petitioner was ordered to surrender his passport and post a $10,000 bond. On November 7, 2012, both parties appeared with counsel, and the Court scheduled an evidentiary hearing. The Court appointed a guardian ad litem for Shayan. After a hearing the Court granted the petition.

Since 2000, petitioner was an employment-pass holder in Singapore, where he worked. He first traveled to Singapore in 1985 and set up his company there in 1989. The head office of the business he owns was located in Singapore and had twelve employees. He also owned a business in Iran. Respondent had permanent resident status in Singapore.

In 2007, the couple married, and on January 16, 2008, they registered their marriage in Singapore. Shayan was born on January 29, 2009. The child had Malaysian citizenship and had resided in Singapore from birth until the respondent removed the child to the United States. There was considerable strife in the marriage, and on April 29, 2011, while the couple still resided together, respondent filed an application for sole custody, care, and control of the child in the High Court of the Republic of Singapore. On May 16, 2011, she obtained an ex parte order from the Subordinate Courts of the Republic of Singapore prohibiting petitioner from removing the child from the jurisdiction of Singapore without respondent’s consent or the court’s approval. Respondent left the marital home with the child on May 25, 2011 and moved into her sister’s Singapore apartment. Shortly thereafter, petitioner was served with a copy of the May 16, 2011 order. Petitioner filed a cross-application for sole custody on June 28, 2011. At a mediation session held on July 14, 2011, the Subordinate Court issued an order prohibiting both parties from removing the child from Singapore. The Order also granted petitioner supervised visitation every Saturday between 3 p.m. to 5 p.m. at the Centre for Family Harmony, the costs of which were to be borne equally.

The district court observed that persons of the Muslim faith are a small minority in Singapore. By statute, divorce actions between individuals of the Muslim faith must be brought in the Singapore Sharia Courts. Administration of Muslim Law Act, Part III, § 35(2) ("AMLA"). Sometime around the end of 2011, respondent brought an action for divorce in the Singapore Sharia Courts. Respondent attended a mandatory counseling session within the Sharia Court. Petitioner testified that he did not participate in the action. Petitioner’s Singapore counsel testified that the divorce action did not proceed. The Singapore Subordinate Court continued to function on issues relating to temporary custody of the child and visitation and on February 16, 2012, after a mediation session presided over by a judge of the Singapore Subordinate Court, the court ordered that "[t]he child shall continue to be in the care of the mother pending the determination of custody, care, and control of the child by the Syariah Courts" and that "[t]he father shall have access to the child two times a week at the Centre for Family Harmony pending the outcome of the hearing of the Syariah Courts."⁴ The order stated in boldfaced capital letters that it was entered "BY CONSENT."

On May 20, 2012, the respondent left Singapore in breach of the July 14, 2011 order. Petitioner obtained a court order requiring the respondent to deliver the child to the Duty Judge of the Subordinate Courts Family and Juvenile Division within seven days and surrender the child’s personal documents. This order specified that "[t]he child be placed in the interim sole care and control of" the petitioner "pending the determination of the action or until further Orders." The same order further directed that respondent be restrained from removing the child from the jurisdiction without the consent of petitioner or the court. Respondent, who was no longer in the country and likely did not receive notice of the June 5, 2012 order, did not comply and was held in contempt on June 25, 2012.

The district court found that petitioner established each and every element of a prima facie case under the Hague Convention. The district court observed that Article 13(b) of the Hague Convention provides that the signatory state "is not bound to order the return of the child" if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). Although the respondent bears the burden of establishing by clear and convincing evidence that the exception applies, 42 U.S.C. § 11603(e) (2)(A), subsidiary facts may be proven by a preponderance of the evidence. It noted that the Second Circuit considered the "grave risk" exception at length in Blondin II and Blondin v. Dubois, 238 F.3d 153 (2d Cir.2001) ("Blondin IV" ). The court explained that mere showings of "inconvenience or hardship" do not amount to a "grave risk" of harm. Rather a "grave risk" of harm exists where "the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation." The court cited withapproval the Sixth Circuit’s observation that a "grave risk" to the child presents itself 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.’ (quoting Friedrich, 78 F.3d at 1069) In the years since the Second Circuit’s consideration of the Blondin case, several federal courts have found "a child’s observation of spousal abuse is relevant to the grave-risk inquiry." E.g., Elyashiv v. Elyashiv, 353 F.Supp.2d 394, 408 (E.D.N.Y.2005). "Children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser." (citing Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045, 1058(E.D.Wash.2001). Accordingly, evidence of "[p]rior spousal abuse, though not directed at the child, can support the grave risk of harm defense." Rial v. Rijo, 10 Civ. 1578(RJH), 2010 WL 1643995, at *2 (S.D.N.Y. Apr. 23, 2010) (citing Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000)). Still, the court need not "refuse to send a child back to [his] home country in any case involving allegations of abuse, on the theory that a return to the home country poses a grave risk of psychological harm." Blondin IV, 238 F.3d at 163 n. 12. Rather, that determination must be based on the "specific facts presented in [the] case." When making a grave risk determination, the court must also consider whether the child can be protected from the risk of harm "while still honoring the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child’s home country." Blondin II, 189 F.3d at 248. In its deliberation of whether there is a grave risk of harm, the Court takes into account "any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation." "In cases of serious abuse, before a [district] court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country." Blondin IV, 238 F.3d at 163 n. 11. For instance, in Blondin v. Dubois, 19 F.Supp.2d 123, 129 (S.D.N.Y.1998) ( "Blondin I" ), the district court concluded that there would be a grave risk of harm should the children in that case be returned to France, the country of their habitual residence. The Second Circuit, in Blondin II, remanded the case to the district court for "further consideration of the range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody award in due course ...." 189 F.3d at 249. On remand, the district court engaged in further analysis but reached the same conclusion, in part because "any return" of the children would " ‘almost certainly’ trigger a recurrence of their traumatic stress disorder." Blondin v. Dubois, 78 F.Supp.2d 283, 295 (S.D.N.Y.2000) ("Blondin III" ). On appeal, the Second Circuit affirmed the district court’s determination that there was a grave risk of harm to the children because repatriation to the country of habitual residence created a real risk of triggering further psychological trauma, regardless of any potential mitigating arrangements. Blondin IV, 238 F.3d at 161. In applying the standard set out in the Blondin cases, district courts inthis Circuit have denied petitions to return the child where there has been evidence supporting a finding of a real risk of psychological or physical harm to the child. Elyashiv, 353 F.Supp.2d at 408–09 (evidence petitioner physically abused respondent and the children and expert testimony that the children would suffer PTSD symptoms upon their return to Israel, regardless of contact with petitioner); Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299, 2005 WL 67094, at *2–*4, *11–*12 (E.D.N.Y. Jan. 13, 2005) (evidence petitioner frequently beat respondent in front of the children, children told psychiatrist that petitioner hit them, and expert testimony that return of the children would exacerbate the PTSD of one child). This Court held in M.M. v. F.R., No. 11 Civ. 2355(PKC) (S.D.N.Y. June 30, 2011), that respondent had established that repatriating the child would expose him to a grave risk of physical or psychological harm, because, among other things, the petitioner had sexually abused the child’s half-sister. But, credible evidence of some level of abuse by the petitioner does not necessarily equate to establishment of the grave risk to the child in repatriation. See, e.g., Rial, 2010 WL 1643995, at *2–*3 (evidence of verbal and physical abuse toward respondent, at times in front of child); Laguna v. Avila, No. 07 Civ. 5136, 2008 WL 1986253, at *8–*9 (E.D.N.Y. May 7, 2008) (evidence of violence toward respondent, but no evidence that petitioner physically abused the child). The focus of the inquiry is not on the relationship between the two parents or the desirability of one parent having custody. Rather, the focus should be on whether returning the child to the country from which he was removed will present a real risk of harm to the child, because, for example, it will trigger trauma to the child or the country of habitual residence lacks the means to afford reasonable protection to the child from physical or psychological harm at the hands of a parent or third-party.

The district court found that both parties had deep love for Shayan and cared greatly about his well being. Respondent testified that she never saw petitioner physically abuse the child. Moreover, she never reported to the police any incident where petitioner abused the child. She never claimed in the Singapore courts that petitioner abused the child. Petitioner and respondent both alleged instances of domestic abuse and inappropriate conduct aimed at one another. The Court found that Respondent had exaggerated her claims, and did not establish her grave risk of harm defense. For example, Respondent testified that petitioner forced her to engage in certain sexual acts, including anal and oral intercourse, which often occurred in the marital bedroom where the child slept. The Court did not credit respondent’s testimony because respondent’s SMS text messages to petitioner contradicted her account and indicated that she was a willing participant.

A Dr. B.J. Cling, retained by respondent, testified as an expert on domestic violence matters. Dr. Cling opined that respondent suffered from symptoms of post-traumatic stress disorder and depression. Dr. Cling testified about a specific type of domestic violence termed "coercive control" or "intimate terrorism," which "has as its main focus the domination and control of the victim." This type of violence is severe, frequent, and very harmful to children. Moreover, when the victim and perpetrator separate, the characteristics of "coercive control" often escalate. The Court found that the evidence did not support this conclusion and that the Respondent failed to prove her grave risk of harm defense.

The district court also rejected respondents Article 20 defense. It permits the requested State to refuse the return of the child when it "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20.¹³ The Article 20 defense must be restrictively interpreted and applied 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 parties did not cite and the Court could not find any published federal case law in which the Article 20 exception was found to have been established. See Uzoh v. Uzoh, No. 11 Civ. 9124, 2012 WL 1565345, at *7 (N.D.Ill. May 2, 2012) (noting the same).

Respondent argued that returning the child was not permitted by the fundamental principles of the United States because the custody determination in Singapore will be made in a Sharia Court. AMLA grants the Sharia Courts in Singapore considerable discretion in considering evidence from non-Muslims. See AMLA § 42(3). Respondents expert, Ms. Hassan, testified that a woman’s testimony is worth less than a man’s in the Sharia Courts. Moreover, she testified that Sharia Law applies presumptions favoring fathers and disfavoring non-Muslim parents in custody determinations. These rules, respondent urged, ought shock the conscience and offend notions of due process. The Court concluded, that it need not reach the issue of whether the procedural and substantive rules in Sharia Courts "shock the conscience" or "offend all notions of due process" because the Court found that respondent failed to prove that it was more likely than not that the Sharia Court would make a final custody determination in this case.

Respondent also argued that there were insufficient protections against domestic violence in Singapore, and thus, Article 20 bared the child’s repatriation. The Court found that Singapore had reasonable procedures to ensure the safety of the child during the pendency of the custody proceedings including supervised visitation.

The Court concluded that it would be an improvident exercise of discretion to stay the Order pending appeal because there was a significant risk that Respondent would flee with the child and avoid detection. The treaty between the United States and Singapore contemplates the "prompt" return of the child to the country of habitual residence. See Hague Convention, art. 1. The Court granted a brief stay of return to permit a stay application to be made to the United States Court of Appeals for the Second Circuit and otherwise denied a stay pending appeal.

Taylor v Taylor, 2012 WL 6631395 (C.A.11 (Fla.)) [United Kingdom][Grave Risk of Harm]

2012-12-26T15:39:00.001-05:00

In Taylor v Taylor, 2012 WL 6631395 (C.A.11 (Fla.)) (Not Selected for publication in the Federal Reporter) Mr. Iverson Taylor, a British citizen, petitioned for relief under the Hague Convention alleging that his wife, Ms. Keysha Taylor, an American citizen, wrongfully retained their daughter, A.T., in Florida since February 2009. The district court conducted an evidentiary hearing and found Mr. Taylor untrustworthy and that his testimony was not credible in a number of areas. Given Mr. Taylor's long history of deception and fraudulent activity, the Eleventh Circuit held that is finding was not clearly erroneous.

The Taylors were married in the United States in 2003. After Mr. Taylor was deported to the United Kingdom for failing to disclose his three theft convictions when he entered the United States, Ms. Taylor joined him. They lived in the United Kingdom together from 2005 until 2009. A.T. was born there in 2007. Mr. Taylor had constant money problems, and he frequently lied to his wife and others to swindle money from them. During their marriage, he was arrested for fraud, but those charges were ultimately dismissed. Ms. Taylor found evidence in Mr. Taylor's emails that he was engaging in fraudulent activities. She also began receiving harassing phone calls from Mr. Taylor's creditors at their home. In November 2008, she received a call from a man who told her that if Mr. Taylor did not pay what he owed, "he would be dead and so would [she]." There were several more calls from that caller during November and December of 2008. Ms. Taylor, an attorney licensed to practice in Florida, was able to support her family for a short time in the United Kingdom by working at a law firm. After A.T. was born, she supported the family with her maternity leave funds and then with funds paid to her based on a separation agreement with her employer. After this money ran out, however, she was unable to find another job in the United Kingdom. Mr. Taylor did not provide a reliable income, and the family was evicted from their home in the United Kingdom in December 2008. They were able to move into another apartment when, as Ms. Taylor testified, Mr. Taylor "came up with a large amount of cash."She did not know the source of that cash but believed it was from illegal activities. Soon after that, they had difficulty paying the rent again. Mr. Taylor was living in a temporary location and planed to move if A.T. was returned to him. He remained unemployed and claimed he supported himself with "outstanding debts and collections on old accounts."

Because of the financial difficulties, the fighting in their marriage, and the frightening
phone calls, Ms. Taylor told Mr. Taylor she wanted to leave the United Kingdom and
take A.T. with her. He refused to give her A.T.'s passport. He also told her that he
"knew people" in the United Kingdom who could "take care" of her. It was only after she signed an agreement promising to bring A.T. back the next month that he gave her the passport. Ms. Taylor returned with A.T. to her parents' house in Florida.

When Ms. Taylor told Mr. Taylor that she would not be returning A .T. to the United
Kingdom, he began to threaten her and her parents. He told Ms. Taylor's mother over
the phone, "I am not gonna stop until I destroy your daughter. She's never gonna work in the United States again."In another call, he told Ms. Taylor that he knew people in Florida who could "take care" of her and he could "have somebody come to [her] house, and when [her] father opens the door, shoot him in the face."He also sent Ms. Taylor an email saying, "You are going to want my mercy soon and you won't get it ... God help you if anything happens to my child." After Ms. Taylor returned to the United States, she filed for bankruptcy. She got a job and was making $85,000 a year. Because of the remaining debts from her marriage, she testified that she still "live[s] paycheck to paycheck." She was unsure if she would be able to get a job in the United Kingdom if she and A.T. moved back, both because of the poor market and because her residency status was uncertain. .

The district court concluded that Ms. Taylor had wrongfully taken A.T. from her
habitual residence in the United Kingdom. She did not dispute that finding. She asserted that returning A.T. would expose her to a "grave risk" as described in Article 13(b). The district court agreed that it would and did not order A.T. returned to the United Kingdom.

The Eleventh Circuit affirmed. It stated that whether there is a "grave risk" to the child as defined in Article 13(b) of the Convention is a mixed question of law and fact, which it reviews de novo. Baran, 526 F.3d at 1345. It reviews the district court's factual findings only for clear error and give substantial deference to the credibility determinations made by the district court. Furnes v. Reeves, 362 F.3d 702, 710, 724 n. 21 (11th Cir.2004).

The Eleventh Circuit observed that the district court provided two primary justifications for its finding that sending A.T. back to the United Kingdom would subject her to a "grave risk" of harm. First, the court reasoned that the anonymous death threats Ms. Taylor received were indicative of future violence: if one person threatened Ms. Taylor, there are likely others who "would not hesitate to threaten to kill, kidnap, or do physical harm to A.T. in order to get Mr. Taylor to pay what he owes." The court made an explicit finding that Mr. Taylor's testimony concerning his current source of income (collection of "outstanding debts") was not credible and concluded that he had been and continued to be engaged in fraudulent activities. Second, the court focused on the threats Mr. Taylor has made against Ms. Taylor: telling her he knew people in the United Kingdom and in the United States who could "take care" of her; threatening to send someone to shoot her father; threatening to ruin her professionally; promising her that she would want his mercy soon and would not get it. The court did not credit Mr. Taylor's assertion that he never threatened Ms. Taylor or her parents and found that "Mr. Taylor threatened to use others to physically harm (and maybe even kill) Ms. Taylor."

The Court pointed out that, as the district court recognized, this case was unique because the risk to A.T. stemmed not only from threats made by her father but also from threats made by an unknown third party. The district court's credibility determinations about the nature of the threats and Mr. Taylor's continued participation in fraudulent activities were not clearly erroneous. The court found that those fraudulent activities had already created-and likely would continue to create-a substantial risk of serious harm to Mr. Taylor's family. Based on the unique facts of this case and the district court's specific credibility determinations, the district court did not err by determining that Ms. Taylor had established a grave risk of harm to A.T. if she is returned to live with Mr. Taylor in the United Kingdom.

Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D.Fla.)

2012-12-15T10:50:00.002-05:00

In Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D.Fla.) the district court granted the Petition for the return of the parties seven-year old daughter ("L.F.A.") to Mexico, where Petitioner he and the Respondent were living at the time L.F.A. was born and where she was raised until she was taken to the United States without his consent.

Respondent admitted in her answer that L.F.A. was born in 2005 in Monterrey, Nuevo Leon, Mexico, and wasy seven years of age. Petitioner testified at great length during the hearing about the family's residence in the Punta Esmeralda neighborhood in Juarez, Nuevo Leon, Mexico, at which the Respondent and L.F.A. resided until her departure to the United States in 2011 to, as Respondent put it, give L.F.A. "a better life." There was no credible testimony from either the Petitioner or Respondent that Petitioner consented to L.F .A's departure to the United States. Instead, Respondent proffered a partially translated, unsigned settlement offer that, according to Respondent's own testimony, was never executed by the parties. Accordingly, the Court found that Mexico was the "habitual residence" of L.F.A. and there was no "settled intention" to leave that behind for permanent residence in the United States. See Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir.2004).

The Court pointed out that the existence of rights of custody are determined by the law of the country in which the child habitually resides at the time of removal." Hanley, 485 F.3d at 645. Citing to an English translation of Mexican law, Petitioner urged the Court to find that Petitioner had joint custody of L.F.A. at the time of the alleged wrongful removal to the United States. Petitioner cited to Articles 414 and 415 of the Civil Code of the Mexican State of Nuevo Leon: Article 414. Parental authority/responsibility (patria poteslas) is exerted jointly by both parents. Article 414 bis.In all cases where the mother does not live with the father of her children, she will have the right of preference to keep the children under seven years of age under her care, unless she practices prostitution, pimping or habitual drinking, suffers from a contagious disease or her antisocial behavior represents a serious danger for the health and morality of the children. Article 415 bis.Even if they do not have custody of the minors, those exerting parental authority/responsibility (patria potestas), have a right to coexist (spend time) with their descendants who will be asked for their opinion on the matter once they reach the age of twelve. The exertion of this right depends on it not representing a risk for the minor and for the fulfillment of child -support obligations. Personal relationships between the minor and his or her ancestors shall not be impeded without just cause. Whoever has custody, has the obligation to respect, promote and allow the coexistence of the child with the non-custodial ancestor exerting parental authority/responsibility (patria potestas). "Patria potestas," a legal concept derived from Roman law, provides for the joint exercise of parental authority. Moreno v. Martin, 2008 WL 4716958, at *9 (S.D.Fla. Oct.23, 2008). The right to exercise parental authority is distinguished from the right of custody because the mother of children under the age of seven years "h[as] the right of preference to keep the child [ ] ... under her care," despite the clear right to coexist with both parents. The right to coexist, if it means anything however, must mean that Respondent was not permitted under Mexican law to unilaterally decide to move L.F.A. to the United States, thus depriving Petitioner the ability to interact and coexist with L.F.A. in any meaningful way. See generally Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000) (recognizing affidavits from Mexican lawyers stating that both parents must consent to the removal of a child under Mexican law).

There being no evidence that Petitioner's parental rights had been terminated under Mexican law, or voluntarily relinquished by Petitioner, the Court found that Petitioner met his burden of establishing that L.F.A.'s removal to the United States breached his custodial rights.

The Court found that Petitioner was actually exercising his custody rights at the time of removal. Petitioner and Respondent were not living together in marital bliss. Although the Court did not find sufficient evidence to support any of the competing
allegations of abuse, there was enough evidence to support a finding that Petitioner remained active in the life of L.F .A. Petitioner testified that he moved out of the family home to spare L.F.A. from the incessant fighting. He provided credible testimony that Petitioner and Respondent reached an informal, unwritten custody agreement by which he would have physical custody of L.F.A. every Wednesday and on weekends. Both Respondent and Petitioner testified that child support funds were transferred to a bank account to which Respondent had access. There was ample evidence that Petitioner was involved in her life. That is all that is required. See, e.g., Moreno, 2008 WL 4716958, at *9; Bocquet v. Ouzid, 225 F.Supp.2d 1337, 1346-47 (S.D.Fla.2002).

Respondent raised two affirmative defenses. Respondent's first affirmative defense was that the petition was served greater than one year from the date of removal from Mexico and L.F.A. had become settled in her new environment. There was no dispute that L.F.A. had been in the United States for greater than one year (i.e., she moved here in August 2011).The Eleventh Circuit has held that the one year limitations period in the Hague Convention can be equitably tolled "where the parent removing the child secreted the child from the parent seeking return." Furnes v. Reeves, 362 F.3d 702 (11th Cir.2004); see, e.g., Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1362-63 (M.D.Fla.2002) (tolling the limitations period because the respondent absconded with children without notifying the petitioner). It was clear that Respondent took L.F.A. to the United States without the consent of Petitioner. There was no testimony that Respondent reached out to Petitioner to notify him of L.F.A.'s whereabouts. Instead, Respondent presented evidence of public filings, i.e., state court divorce proceedings and a driver's license application, to support her argument that Petitioner was remiss in his pursuit to locate her. Respondent filed for divorce in the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida in a case styled, Daymi Alverez-Hernandez v. Hector Jesus Fernandez-Trejo. Petitioner filed a Notice of Hague Convention Proceedings Related to the Wrongful Removal of Minor Child, L.F.A. in that court. The Court rejected any argument that it was incumbent upon Petitioner to sift through the records of the DMV to locate the Respondent's driving records or any one of the twenty circuit courts in Florida to locate a divorce filing. Petitioner testified that he was only able to locate Respondent and L.F.A. with the help of the Mexican and United States Central Authorities. The Court found that the limitations period was appropriately tolled in this case and Respondent was unable to meet her burden of proving this defense.

Moreover, there was not sufficient evidence to find that L.F.A. was "well settled" in the United States as that term is used in the Hague Convention. Whether a child is "well settled" requires "substantial evidence of significant connections to the new environment." In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1313 (S.D.Fla.2004). Courts consider the child's age, stability of the new residence, school attendance, stability of the mother's employment, and the presence of friends or relatives in the new environment to establish significant connections. The testimony adduced at the hearing showed that L.F.A. was brought to Miami, Florida, and then Largo, Florida, living in a total of three (3) residences in the roughly fifteen (15) months since coming to the United States. L.F.A. spoke some English, attended elementary school in Largo. Florida, and stayed at home with a babysitter in the evening while Respondent went to work. Based on all the factors, and considering an ex parte interview with L.F.A., the Court found that L.F.A. was not well settled in the United States. Mendez Lynch, 220 F.Supp.2d at 1363-64 (finding children not well settled in the United States when they lived in seven locations in only a couple years, even though they were attending school and making friends). Accordingly, Respondent failed to meet her burden of proving her first affirmative defense.

Respondent's second affirmative defense was that L.F.A.'s return to Mexico would
"expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The Court observed that Respondent must prove by clear and convincing evidence that returning to Mexico would place L.F.A. in an "intolerable situation ." 42 U.S.C.11603(c)(2)(A). An "intolerable situation" under Article 13b of the Hague Convention encompasses, for example, sexual abuse by a parent or other familial relative, Grijalva v. Escayola, 2006 WL 3827539, at *6 (M.D.Fla.Dec.28, 2006) (citing Hague Convention, 51 Fed.Reg. 10494-01, 10510 (March 26, 1986)), or when returning the child would place her in a "zone of war, famine or disease[.]" Friedrich v. Freidrich, 78 F.3d 1060, 1069 (6th Cir.1996). The proper focus of the inquiry is the effect on L.F.A. if she is returned to Mexico. See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995).

As support for this defense, Respondent testified generally that there existed drug trafficking activity and gang violence in the proximal location of their residence in Nuevo Leon, Mexico. Respondent testified that on at least one occasion a stray bullet struck the residence. Other than oblique references to the quality of life in Nuevo Leon, Mexico immediately surrounding the Petitioner's residence, there was no testimony that L.F.A. or Petitioner or Respondent was personally threatened or in immediate danger. The living conditions of the surrounding area, even if as they were as deplorable as Respondent contended did not satisfy the "intolerable conditions" defense by clear and convincing evidence. See Avendano v. Smith, 806 F.Supp.2d 1149, 1177 (D.N.M.2011) ("Although Mexico is more dangerous than the United States at this time, intolerable situation was not meant to encompass return to a home where living conditions are less palatable."). Moreover, removing L.F.A. from her mother will not, standing alone, satisfy this burden. See Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995). Accordingly, the Court found that Respondent failed to prove her second affirmative defense.

Rovirosa v. Paetau, 2012 WL 6087481 (S.D.Tex.) [Mexico] [Patria Postestas]

2012-12-15T10:48:00.001-05:00

In Rovirosa v. Paetau, 2012 WL 6087481 (S.D.Tex.) Petitioner, Leandro Ampudia Rovirosa ("Ampudia"), brought an action seeking the return of his son, L.A.V., and daughter, M.A.V., to Mexico from the United States. Ampudia and Vieth were the natural parents of L.A.V. and M.A.V. and were both citizens of Mexico. Vieth had permanent resident alien status in the United States since 1980. L.A.V. was born in August 2005 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. L.A.V. had a U.S. social security number and a Texas identification card. . M.A.V. was born in June 2007 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. M.A.V. ha a U.S. social security number and a Texas identification card. Both L.A.V. and M.A.V. possessed only Mexican passports. Ampudia and Vieth lived with their children in a rented home on Contreras Street in Mexico City beginning in 2009. The children attended the Alexander Bain Institute in 2009, 2010, and a portion of 2011. They were driven to this school by a chauffeur employed by Ampudia's employer.

From May 10, 2010, to June 11, 2010, Ampudia received voluntary inpatient treatment for a gambling addiction. Ampudia testified that he no longer gambled as a result of this treatment. After Ampudia's release from the rehabilitation facility, the relationship between the parties deteriorated, and they began to discuss a separation.. On December 18, 2010, Vieth and the children went to Acapulco to visit her family for the Christmas holidays. Vieth, assisted by her friend, Celia Tello, packed up clothing and toys at the Contreras Street residence in preparation for her move to Houston to live with a friend. Vieth and her children drove with Tello and Tello's family to Acapulco with the clothing and toys. Vieth and the children flew from Acapulco to Houston, Texas, on December 26, 2010, and lived with Blomfield and his family until January 14, 2011. Between late December 2010 and early January 2011, Ampudia moved into an apartment approximately twenty minutes away from the Contreras Street residence. Ampudia testified that he believed Vieth was taking the children to the United States to visit her mother in Chicago, but learned that they went to Houston instead. Ampudia was aware that Vieth and his children had stayed with Blomfield when in Houston after the Christmas holidays. Vieth and the children returned to Mexico City on January 14, 2011. Vieth testified that although she considered Blomfield's home in Houston to be her and the children's permanent residence by that time, she returned to Mexico City to straighten out her and Ampudia's finances. According to Vieth, the rent on the Contreras Street residence was months in arrears and the utilities were also past due. She attributed the fault of the non-payments to Ampudia.

In February 2010, Vieth moved into Tello's residence, where Vieth and her children shared a bedroom vacated by Tello's two-year-old daughter. Tello averred that Vieth and the children lived with her through May 2011, when Vieth returned to Houston. Ampudia testified that Vieth and the children continued to reside at the Contreras Street address until June 1, 2011. On May 3, 2011, Vieth filed a petition in the 27th Family Court, Mexico City, D.F., to terminate Ampudia's parental rights on the ground that he had abandoned the children due to non-support. In the petition, she claimed that she had borrowed in excess of $633,000 pesos to support the children after he failed to do so. She also claimed in the petition that he had borrowed in excess of $7,000,000 pesos from her and owed $10,000,000 pesos in gambling debts. She sought $176,828 pesos in monthly support. The Mexican petition claimed expenses for the children's activities in Mexico City during the first quarter of 2011. The petition also avered that Vieth paid rent, maintenance fees and water expenses at the Contreras Street residence through May 2011 by using funds she borrowed. Emma Rovirosa testified that she paid these expenses for the same period of time on behalf of her son, Ampudia.

Ampudia's legal expert, David Lopez testified that, in his opinion, Ampudia, as the natural father of the children, had a right of custody, known as patria potestad, under Mexican law. Ampudia and Vieth lived together as a couple and acted as parents to the children. Cohabitation with a child is a parental right under Mexican law and, even after Ampudia ceased to cohabit with the children, he exercised parental rights by paying for their schooling, visiting the children at school or sporting events and having lunch with them. Lopez testified that the fact that Vieth filed a lawsuit to terminate Ampudia's parental rights was an admission by Vieth that Ampudia had rights to be terminated. And Ampudia's filing a response to Vieth's lawsuit was an assertion of his objection to the termination of his parental rights. Lopez acknowledged that patria potestad may be lost by a failure to pay child support for more than ninety days, but that determination had not been made by the Mexican court and, until that court determined that Ampudia abandoned the children, Ampudia had the presumption of having custodial rights. Lopez opined that Ampudia has rights of custody for purposes of the Hague Convention.

Ampudia testified that, until June 2011, he visited the children once a week, took them to lunch or for ice cream, and attended their school and sporting events.L.A.V. and M.A.V. attended the Alexander Bain Institute from January 2011 to May 2011. On May 23, 2011, Vieth committed in writing to pay the past-due tuition at the Alexander Bain Institute for the months of January 2011 to May 2011 by July 4, 2011. The sum was deducted from Ampudia's salary. On May 20, 2011, M.A.V. and L.A.V. were seen by their pediatrician in Mexico City. Vieth testified that another reason for her return to Mexico City with the children in January 2011 was to renew the passport of M.A.V., which would expire in April 2011. Ampudia's signature was required by law to renew the passport, and, according to Vieth, he delayed complying with her requests to renew the passport for months. On May 31, 2011, Ampudia and Vieth went to the passport office and signed documents renewing M.A.V.'s passport. Ampudia, Vieth and the children had lunch at Ampudia's apartment that same day. Vieth testified that she told Ampudia on May 31, 2011, that she had filed the lawsuit to terminate his parental rights. Vieth conceded that she did not tell Ampudia that she and the children were flying to Houston the following day. On May 31, 2011, Ampudia applied for a passport for himself, replacing one that had been lost. Vieth produced this lost passport, along with his U.S. visa, in discovery in this action, leading Ampudia to conclude that Vieth had retained his passport and visa to prevent him from traveling to the United States in pursuit of her and the children. Vieth denied taking Ampudia's passport but had no credible explanation for its discovery in her possession.

On June 1, 2011, Vieth purchased airline tickets for herself and the children to travel from Mexico City to Houston, Texas, later that same day. The children ha continuously resided in Houston, Texas, since June 1, 2011. Ampudia was served with Vieth's lawsuit to terminate his parental rights on June 10, 2011. He filed his answer and countersuit for visitation rights on June 29, 2011. That case was being actively litigated in Mexico City. Ampudia testified that he was unaware of where his children were after June 1, 2011. Ampudia concluded that Vieth and the children were in the United States because the automatic voice mail message on Vieth's phone was in English. Ampudia asserted that Vieth never answered his calls or voice mails, and the first time he learned that Vieth and the children were in Houston, Texas, was when Blomfield phoned him on August 18, 2011. Blomfield averred that while he was certain that Ampudia knew that Blomfield lived in Houston, he could not say that Ampudia knew exactly where he lived. Contradicting Ampudia's testimony in part, Vieth testified that Ampudia, along with his father and brother, spoke to M.A.V. on her birthday in June 2011 via Vieth's cell phone.. M.A.V. and L.A.V. attended summer camps in Houston, Texas, during the summer of 2011. M.A.V. and L.A.V. attended The School at St. George Place, a public elementary school in Houston, for the 2011-2012 academic year. Ampudia's parents traveled to Houston, Texas, several times to visit the children.

Their first visit was in September 2011. Because Vieth had Ampudia's U.S. visa in her
possession when she traveled to Houston in June 2011, Ampudia could not travel to the United States until he obtained a replacement visa, which he was not able to do until January 2012. In April 2012, Ampudia traveled to Houston to see the children.

The children were presently enrolled in The School at St. George Place for the
2012-2013 academic year. Since October 2012, Vieth worked in Mexico several
days a week. In her absence, the children were cared for by Blomfield, his wife, and a
family member of Vieth.

In support of her claim of abandonment, Vieth testified that eight months passed before Ampudia paid any child support, that he failed to help with the children, failed to take them to school and did not feed or clothe them. The district court held that this was a claim reserved for the Mexican court. Vieth testified that she was a public figure in Mexico because of her employment as an actress. She believed that her children might be kidnapped because of Ampudia's gambling debts. Vieth also feared that the children may be harmed in an earthquake or fire. She acknowledged that her fears of kidnapping did not prevent her from returning from Houston with the children in January 2011. Vieth also conceded that she made several personal appearances at public events with the children but felt safe because of the security provided by the sponsors of the events.

The district court found that Ampudia had established by a prima facie case preponderance of the evidence that, under the laws of Mexico, he had rights of custody over L.A.V. and M.A.V. and that he was exercising his rights of custody over L.A.V. and M.A.V. at the time of the children's removal from Mexico by Vieth; that Mexico was L.A.V.'s and M.A.V.'s habitual residence before their removal from Mexico by Vieth; and that Vieth wrongfully removed L.A.V. and M.A.V. from their habitual residence in Mexico in violation of Ampudia's rights of custody over the children.

Given that Ampudia established by a preponderance of the evidence each of the elements required by the Hague Convention to show that Vieth wrongfully removed L.A.V. and M.A.V. from Mexico, and given that Vieth has failed to meet her burden that any of the exceptions apply to the facts of this case, the court ordered the return of L.A.V. and M.A.V. to Mexico, their habitual residence prior to their wrongful removal by Vieth.

Pignoloni v Gallagher, Slip Copy, 2012 WL 5904440 (E.D.N.Y.) [Italy] [Consent]

2012-12-03T09:56:00.000-05:00

In Pignoloni v Gallagher, Slip Copy, 2012 WL 5904440 (E.D.N.Y.), Petitioner Fabrizio Pignoloni ("Petitioner") filed a petition under the Hague Convention
seeking an order directing Respondent Luise Ann Gallagher ("Respondent") to
return their two minor sons, E.G.P. and A.T.P. to Italy. Respondent maintained that
her removal and retention of the children were authorized by a consensual separation
agreement signed by Petitioner and ratified by an Italian court. The Court found that the consensual separation agreement authorized Respondent to return to the United
States with the children and therefore denied Petitioner's application for relief.

In December 2003, Petitioner, an Italian citizen, met Respondent, a United
States citizen, in New York. During that time, Respondent worked full-time at Polo Ralph Lauren ("Polo") as a technical designer, and Petitioner managed Soho IT Services, an information technology company that he owned for over twenty years, as of the date of the hearing in this action. On June 24, 2005, Petitioner married Respondent in New York, and shortly thereafter, returned to Italy. At the time of their marriage, Respondent worked at Polo and continued to work there until the end of On November 28, 2005, Petitioner's and Respondent's first son, E.G.P., was born in New York. In January 2006, Respondent and E.G.P. relocated to Italy. Respondent
returned to work in or around late 2006 or early 2007 and thereafter completed
various part-time projects for Polo in New York, requiring her to leave Italy for
weeks or months at a time. A.T.P. was born on September 18, 2008 in Ancona, Italy, and Respondent resumed her part-time work for Polo in New York a few months later. After the birth of A.T.P., Petitioner and Respondent experienced marital discord. During the summer of 2010, Respondent traveled to New York for a few months to work. Between June and August 2010, Respondent worked in New York for about two or three months without interruption. Upon Respondent's return to Italy, the marital problems reemerged, resulting in the parties' consensual separation.

In September 2010, Petitioner and Respondent formally entered into a separation agreement, which was ratified by an Italian court. Both parties were represented by counsel when they negotiated the terms of and entered into the September 2010 Separation Agreement. In accordance with the September 2010 Separation Agreement, Petitioner moved out of the parties apartment immediately after the separation. During this time, Respondent stopped working in order to stay home with A.T.P., who was diagnosed with muscular dystrophy, and did not return to work until approximately May 2011. Petitioner continued working to support the family and to pay Respondent the monthly child and spousal support obligations required under the September 2010 Separation Agreement which required Petitioner to pay Respondent 500 per month in spousal support and 400 in child support for their two children. On April 29, 2011, Petitioner and Respondent signed a supplemental separation agreement that was subsequently integrated into the September 2010 Separation Agreement. In connection with the April 2011 Separation Agreement, Petitioner and Respondent were represented by Attorneys. On May 25, 2011, the Italian court ratified the April 2011 Separation Agreement, and the presiding judge so ordered the agreement. The April 2011 Separation Agreement contained provisions related to Petitioner's support obligations, Respondent's rights to travel for work, the parties' rights to travel with the children, and the parties' respective custody rights. Paragraph C of the April 2011 Separation Agreement set forth the joint custody rights of Petitioner and Respondent and specified that the children will live with Respondent in their Via Minucia apartment. Paragraph C further stated that the "mother, at the end of the children's school commitments, will also be able to spend one month in the company of the children in Italy or in any other place outside Italy, either in Europe as well as in the United States or in any other part of the world, as long as it has previously been agreed on with the husband." Paragraph D of the April 2011 Separation Agreement stated that "Mr. Pignoloni will take exclusively upon himself the obligation of child support paying to the wife 200/00 (two hundred/00 euros) ... for each son to be deposited, within the first five days of every month, in the bank checking account in the name of Mrs. Gallagher." Paragraph E of the April 2011 Separation Agreement reflected a reduction of 400 per month in spousal support from the September 2010 Separation Agreement as follows: "Fabrizio Pignoloni binds himself to pay to the wife spousal support of a monthly amount of 100/00 (one hundred/00 euros) ... within the first five days of every month by means of a credit transfer to the bank checking account in the name of Mrs. Gallagher."

Paragraph F of the April 2011 Separation Agreement set forth Petitioner's obligation to pay the rent on the Via Minucia apartment and provided that "Fabrizio Pignoloni binds himself to pay the rent of the apartment in Via Minucia, equal as of today to 456/00 monthly ... by making payment directly to the owners." Paragraph F further stipulated that "[i]n the case of relocation agreed on between the spouses of Mrs. Gallagher and the children to a different lodging, he binds himself to pay the new rent up to 600/00 monthly. Paragraph L delineated Respondent's right to travel to New York for work reasons and stateed that Petitioner "authorizes temporary transfers of his wife to New York or to the United States generally for work reasons and for certain periods of time limited to the execution of the work itself ... [and] authorized the wife's departure from the home for a few days to sit for job interviews."

Paragraph O, a new provision added to the April 2011 Separation Agreement at the request of Respondent, provided that [i]n case of non-payment of several monthly rent installments by Mr. Pignoloni resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own. Petitioner testified that he and his attorney had no objection to the addition of Paragraph O because he believed that Paragraph O was essentially meaningless and did not change anything with respect to his rights even though Respondent accepted a lower support payment in exchange for including Paragraph O in the April 2011 Separation Agreement. Respondent, who was to receive 400 less per month in spousal support under the April 2011 Separation Agreement, believed that Paragraph O was an important "safety net" that permitted her to return to the United States with the children in the event that Petitioner failed to comply with his support obligations under the separation agreement.

Petitioner conceded that between September 2011 and April 2012, he failed to deposit the required monthly payments of 500 into Respondent's bank account within the first five days of each calendar month, as required by the April 2011 Separation Agreement. The evidence revealed deficiencies in Petitioner's total spousal and child support obligations in the amount of 500 per month between the months of September 2011 and April 2012. Petitioner routinely failed to pay rent for the Via Minucia apartment where Respondent and the children resided, resulting in the commencement of an eviction proceeding. Respondent credibly testified that between September 2011 and April 2012, she would have been unable to pay for
her living expenses, childcare expenses, and the rent. On February 28, 2012,

Petitioner signed a new lease for a different residence in Ascoli Piceno. During the last week of March 2012, Respondent and the children moved out of the Via Minucia
apartment and into the new residence. Petitioner testified that he paid rent in advance
for the new apartment for the months of April, May, and June 2012. At trial, Petitioner
and Respondent advanced seemingly contradictory testimony regarding whether
Respondent notified Petitioner and obtained his express consent to travel to New York with the children prior to her departure in April 2012. The Court found resolution of this factual dispute unnecessary to determine the issues before the court, but found Respondent's testimony to be credible.

On April 24, 2012, Respondent departed from Italy with the children and
traveled to New York. Prior to her departure, Respondent did not provide Petitioner with any contact information for herself or the children because Petitioner had all of Respondent's contact information for Respondent's family in the United States. On or around June 6, 2012, Petitioner filed an application under the Hague Convention with the Italian Central Authority, although it did not appear that Respondent was notified of that Hague Convention application. On June 24, 2012, Respondent sent Petitioner an e-mail, in which she expressed her intent to remain in the United States with the children and stated the following: Fabrizio, Due to your failure to support the children and I by not paying 9 months support and 18 months of our rent which had caused us to be evicted. The children and I are staying here in the United States because I have found a job and will provide them with the necessary care in a stable enviornment [sic]. regards, Louise Gallagher Pignoloni

On July 3, 2012, Petitioner filed the Hague Convention petition in the United States District Court for the Eastern District of New York. On July 27, 2012, Respondent filed her Answer to the Hague Convention Petition. In that Answer, Respondent argued that her removal and subsequent retention of the children in the United States were justified because the conditions of Paragraph O of the April 2011 Separation Agreement were satisfied by (1) Petitioner's failure to pay rent and support payments and (2) Respondent's acquisition of stable employment with Polo.

The District Court held that the interpretation and application of Paragraph O read in the context of the April 2011 Separation Agreement was crucial to the court's ultimate determination regarding whether the Respondent's removal and retention of the children in the United States was wrongful. Paragraph O, stated as follows:

[i]n case of non-payment of several monthly rent installments by Mr. Pignoloni
resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own.

The District Court observed that in the Second Circuit, the law is " 'unsettled
when it comes to applying either a federal common law choice of law rule or state
choice law principles in non-diversity cases.'" (quoting Pescatore, 97 F.3d at 12).

Nevertheless, both federal and state choice of law approaches demand the application of Italian contract law when interpreting, construing, and applying Paragraph O of the April 2011 Separation Agreement. The April 2011 Separation Agreement was negotiated in Italy, entered into in Italy with the advice of Italian attorneys, and thereafter approved by an Italian court. Consequently, it held that Italian substantive law, specifically those provisions set forth in the Italian Civil Code, must guide the interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement. The court took judicial notice of and relied chiefly upon the Italian Civil Code provisions as critical guideposts in its interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement.

The district court observed that other courts in the Second Circuit have applied foreign contract and domestic relations law in interpreting parties' mutual agreements in Hague Convention cases. See A.A.M. v. J .L.R.C., 840 F.Supp.2d 624, 629-39 (E.D.N.Y.2012), aff'd, Mota v. Castillo, 692 F.3d 108 (2d Cir.2012). The court construed the September 2010 and April 2011 Separation Agreements as valid contracts under Italian law.

Petitioner argued that Paragraph O contemplates satisfaction of the following three requirements before Respondent is authorized to return to the United States with
the children: (1) Petitioner must fail to pay several monthly rent installments
resulting in a lawsuit OR must fail to deposit into Respondent's bank account four
months of spousal and child support; (2) Respondent must be unable to support the
children and herself and must not have any income of her own; and (3) Respondent
must prove to Petitioner that she has found a job of her own. Petitioner further argues that Respondent cannot have any income in Italy in order to satisfy the second condition because the language of Paragraph O stipulates that she be "unable, not having any type of income of her own." Petitioner lastly contends that, even upon satisfaction of the three required conditions, Respondent must still seek authorization from Petitioner because the contractual language only indicates that he "is willing to authorize" Respondent's return with the children to the United States and thus provides no guaranteed right for her to leave Italy and return to the United
States with the children.

Respondent argued that Paragraph O constituted authorization by the Petitioner, ratified by the Italian court, for her to return to the United States with the children upon satisfaction of the following two conditions: (1)(a)Petitioner must fail to pay several installments of rent resulting in lawsuits against the Petitioner and Respondent, OR (b)Petitioner must fail to pay at least four months of child and spousal support, and Respondent must be unable to support herself and the children as a consequence; and (2) Respondent must demonstrate that she has found a job of her own. Respondent maintains that, based upon common sense, grammar, and logic, the requirement that Respondent be "unable to support herself" applied only to the circumstance in which Petitioner has failed to pay four months of spousal and child support and not to the alternative circumstance in which Petitioner had failed to pay his rental obligations. (Id. at 6-7, 9.) Respondent contended that Paragraph O was a self-executing provision and that she need not obtain further additional authorization from Petitioner or go back to the Italian court before exercising her right to return to the United States with the children and remain there once the conditions of Paragraph O have been satisfied.

The district court rejected Petitioner's interpretation of Paragraph O and found that the interpretation offered by Respondent was reasonable and supported by the facts and the law.

The Court agreed that the language of Paragraph O of the April 2011
Separation Agreement contemplated two separate contingencies under which the
Petitioner and the Italian court authorized Respondent to exercise her right to
return with the children to the United States. Under the first contingency in
Paragraph O, Petitioner and the Italian court authorized Respondent to return to
the United States with the children (1) if Petitioner failed to pay several rent
installments resulting in legal proceedings against the Petitioner and Respondent
and (2) if Respondent could demonstrate that she found a job. Under the second
alternative contingency, Respondent was authorized to return to the United States
with the children (1) if Petitioner failed to deposit into her account at least
four months of spousal and child support; (2) if Respondent was without income
that would enable her to support herself and the children in Italy in light of
Petitioner's failure; and (3) if Respondent could demonstrate that she found a
job. The court thus agreed with Respondent that the condition requiring Respondent
to be "unable to support herself" applied only to the circumstance in which
Petitioner fails to deposit four months of spousal and child support payments as
required by the separation agreement. The structure and text of Paragraph O
supported this interpretation.

Applying Paragraph O according to the interpretation set forth above, the court
concluded that the conditions of Paragraph O have been met and that Respondent was therefore authorized to remove the children from Italy and to return with them to
the United States.

The Court found that the children's habitual residence at the time of their removal was Italy. The Italian court ratified and so ordered the April 2011 Separation Agreement only after "[c]onsidering the opinion expressed by the public
prosecutor's office ... after having verified that the conditions of the separation are not contrary to the law, the public order and the public morality." Thus, Paragraph O permitted Respondent to remove the children and relocate to the United States. The Court held that as testified to by Petitioner's Italian law expert, in Italy, where, as here, an agreement sets forth conditions triggering a parent's right to remove the children and relocate to another country, the realization of those conditions alone is sufficient to permit that parent to exercise that right. The Court rejected Petitioner’s reliance upon a letter from the Italian Central Authority, in which the Central Authority apparently determined that Respondent's removal of the children was wrongful under 574-bis of the Italian Penal Code. In its letter, the Central Authority advised that Respondent was under criminal investigation for child abduction under Italian Penal Code 574-bis and that "in spite of the agreements signed within consensual separation proceedings, [Respondent's] sudden disappearance with her children without previously informing the father thereof is considered as a criminal offence in our legal system." The court accorded no weight to the cursory statement contained in the Central Authority's letter, particularly in light of the admitted lack of notice and opportunity for Respondent to offer facts that would have provided the Italian authorities with a more complete and balanced understanding of the circumstances. The court noted that, as it had previously determined at trial, the Central Authority's letter, although admitted into evidence, did not constitute an Article 15 letter under the Hague Convention because neither the court nor the United States Department of State requested Petitioner to obtain this ruling from the Central Authority. see Hague Convention, art. 15. Moreover, even if the letter were an Article 15 determination, the court could take notice of, but was not bound by that determination. See Norden-Powers, 125 F.Supp.2d at 635 n. 1 (noting that the court "may under Article 15 take notice of ... decisions" made by the Australian family court).

For these reasons, the court found that Petitioner had failed to establish, by
a preponderance of the evidence, that his custody rights were violated and that
Respondent's removal of the children was wrongful within the meaning of the Hague
Convention. As such, Petitioner failed to establish his prima facie case that
Respondent's removal of the children on April 24, 2012 was wrongful. The Court concluded that Paragraph O constituted Petitioner's pre-committed consent to Respondent's departure from Italy conditioned upon the satisfaction of Paragraph
O's enumerated conditions. A.A.M., 840 F.Supp.2d at 632 (quoting Hague Convention,
art. 13(a)). Paragraph O set forth the parameters that would trigger Petitioner's consent to Respondent's removal of the children to the United States. All of those parameters were indisputably met.

In addition to Petitioner's failure to satisfy his prima facie burden to establish that the children were removed wrongfully in violation of his custody rights, Respondent also established, by a preponderance of the evidence, that Petitioner both consented to Respondent's removal of the children when Respondent informed him of her plans prior to her departure in April 24, 2012, and also consented by agreeing to Paragraph O, pursuant to which the conditions precedent came to pass prior to her removal of the children from Italy.

Paragraph O also authorized Respondent to retain the children in the United
States in late June 2012. In many ways, the court's analysis with respect to
Respondent's April 2012 removal of the children from Italy applied with equal, if
not greater, force to Respondent's retention of the children in June 2012. All of
the conditions precedent necessary to trigger Respondent's retention rights under
Paragraph O came to pass prior to her June 2012 determination to retain the
children in the United States. Petitioner had already failed to pay months of rent
and child and spousal support, and Respondent, who had a job of which Petitioner
was fully aware, was unable to support herself and the children in Italy because
of Petitioner's routine failure to satisfy his obligations under the April 2011
Separation Agreement. The court determined that Paragraph O of the April 2011 Separation Agreement, the conditions of which were fully satisfied by Petitioner's routine failure to fulfill his support and rent obligations, by Respondent's job as the owner of her own company and a freelance worker for design companies (and Petitioner's knowledge thereof), and by Respondent's inability to support herself and the children because of Petitioner's habitual failure to comply with his court-ordered support obligations-authorized Respondent to return and remain in the United States with the children. Petitioner's request for relief under the Hague Convention was denied and the petition was dismissed.

Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Service of Process]

2012-11-27T09:55:00.001-05:00

In Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) petitioner filed a Verified Petition for the Return of the Child to Croatia on September 21, 2012. On October 9,
2012, petitioner filed a Petition for Warrant in Lieu of Writ of Habeas Corpus. Six days later, on October 15, 2012, the Court filed a Memorandum declining to grant the Petition for Warrant due to lack of personal jurisdiction, without prejudice to reconsideration if petitioner later established jurisdiction. Vujicevic v. Vujicevic, No. 12 Civ. 7149, 2012 WL 4948640 (S.D.N.Y. Oct. 15, 2012). In its Memorandum, the Court noted that it could exercise personal jurisdiction over respondent only if respondent had been served. The Court also observed that service was specifically required by the International Child Abduction Remedies Act, 42 U.S.C.11601-11610 (2006) (citing 28 U.S.C. s 1738A(e) (2006); 42 U.S.C. § 11603(c); N.Y. Dom. Rel. Law § 76-d (McKinney 2012)). Because the docket sheet indicated that respondent had not yet been served, the Court concluded that it did not have personal jurisdiction over respondent.

On October 16, 2012 petitioner filed a Motion for an Order to the United States Marshal to Serve Respondent. In that Motion, petitioner noted that under ICARA,
service must be effected pursuant to New York law, specifically section 308 of the
C.P.L.R. (citing Vujicevic v. Vujicevic, 2012 WL 4948640; Ebanks v. Ebanks, No. 07-CV-314, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007)). Petitioner argued that service under subsections (1), (2), or (4) of section 308 was impracticable because petitioner was unaware of respondent's exact whereabouts or her "actual place of business, dwelling place or usual place of abode.".Petitioner contended, however, that respondent was likely present in New York State and that service under subsection 308(5) was appropriate. C.P.L.R. §308 provides, in part:"Personal service upon a natural person shall be made by any of the following methods: ... 5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.". Noting that the Court had authority to order the U.S. Marshal to effect service and that the Department of State had information that might aid the Marshal in locating respondent, petitioner moved for an Order to Show Cause, to prohibit the removal of the child from this jurisdiction, and to direct the U.S. Marshal to serve respondent and to seize all passports and travel documents for respondent and the child.

On October 22, 2012, the Court issued an Order to Show Cause, directing, that the U.S. Marshal "(I) serve Respondent with a copy of th [e] Order, as well as the Verified Petition (and all attachments), and (ii) seize all passports and travel documents for the Respondent Adriana Vujicevic and the Child, ."Vujicevic v. Vujicevic, No. 12 Civ. 7149 (S.D.N.Y. Oct. 22, 2012). Since the Order to Show Cause was issued, the U.S. Marshal diligently attempted to serve respondent. The Marshal was not been able to serve respondent within New York State.

The Court noted that under Rule 4(m) of the Federal Rules of Civil Procedure, a petitioner has 120 days from the date on which his Verified Petition was filed to achieve service. Although New York law governs the method by which the Hague Convention petitioner was required to effect service, Federal Rule of Civil Procedure 4(m) governs the deadline for service. If a petitioner fails to serve a respondent within 120 days, "the court-on motion or on its own after notice to the [petitioner]-must dismiss the action without prejudice against that [respondent] or order that service be made within a specified time."Fed.R.Civ.P. 4(m). The Court directed that unless petitioner effected service or could show good cause why his time to serve should be extended, the matter would be dismissed without prejudice on January 22, 2013.

Walker v Walker, 2012 WL 5668330 (C.A.7 (Ill.) [Australia] [Habitual Residence] [Consent]

2012-11-20T11:28:00.002-05:00

In Walker v Walker, 2012 WL 5668330 (C.A.7 (Ill.) Iain Walker, a citizen of Australia, filed suit to compel his wife, Norene, a citizen of the United States, to return the couple's three children to Australia. Iain and Norene were married in Chicago in 1993. They lived in Seattle, Washington, until 1998 when they moved to Perth, in Western Australia. The couple's eldest child was born in the United States in 1997, but lived in this country only one year; the two younger children were born in Australia in 1999 and 2001.

Although Norene testified that she and Iain initially intended to stay in Australia for only five years, they ended up spending 12 years there. Over this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children.

In June 2010, the Walkers traveled to the United States. When they left Australia,
both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year. According to Iain, the plan was for Norene and the children to live with Norene's parents in Chicago while the family demolished its existing house in Perth and built a new one. According to Norene, the trip was intended as an extended prelude to a permanent move to the United States; she testified that Iain promised to look for a job in Chicago and that they looked at real estate in San Francisco and Seattle. Although both recalled that Norene and the children had concrete plans to return to Australia by June 2011 at the latest, Norene labeled this most likely a temporary visit and Iain understood it to be a permanent return. After spending several weeks with Norene and the children in the United States, Iain returned to Australia in late July 2010. In November, Norene filed for divorce in Cook County, Illinois. As of that time, she said, she had not made up her mind whether she (and presumably the children) would remain in the United States permanently or return to Australia.

Upon receiving Norene's petition for divorce, Iain's lawyer in Australia sent a letter to Norene's attorney offering to settle the divorce out of court. The letter also dealt with the division of property. Notably, the letter explicitly referred to the Hague Convention. On Iain's behalf, the lawyer asserted that "[t]he parties' habitual residence is quite clearly Australia," and that Iain "would clearly be entitled to bring an Application under the Hague Convention to have the children returned to Australia."In closing, the letter stated "this offer is open for a period of 7 days ... and if not accepted [Iain] will then proceed to exercise his full rights pursuant to the Hague Convention, and do all that is required to ensure that proceedings are transferred" to the Family Court of the State of Western Australia. The January 21 letter marked a turning point for Norene. She regarded it as giving her permission to stay in the United States and indicating that Iain "didn't want the kids." She testified that shortly after receiving the letter, she made up her mind not to return to Australia. The negotiations ended without a resolution in mid-February. Iain immediately filed a request for the return of the children with the Australian Central Authority charged with administering the Convention. In May, Iain filed a petition for return in the district court for the Northern District of Illinois. Following a two-day evidentiary hearing, the district court denied the petition.

The Seventh Circuit rejected Noreens argument that the case was mooted by an Illinois state-court judgment awarding sole custody of the children to Norene.
According to Norene, the Illinois judgment conclusively resolved the parties'
custody dispute in her favor and precluded the court from ruling that the Hague
Convention required the custody determination to occur in the courts of Australia.
It observed that Article 17 of the Hague Convention expressly states that "[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention." This treaty provision qualifies the finality of any state-court custody judgment and thus ensures that there is still a live controversy before the federal court.

It distinguished Navani v. Shahani, 496 F.3d 1121 (10th Cir.2007) which did not address this question. The issue of habitual residence, and thus the question of which country's courts had the power finally to determine custody under the Convention, was not before the court in Navani. Here, Iain and Norene disputed habitual residence. Until that question is resolved, it could not say which country's courts had the power to resolve the issue of custody. As Article 17 of the Convention implies, this antecedent question must be answered before the court knows what weight to give to the judgment of the Illinois court. Accepting Norene's position that an abducting parent may render a petition for return moot by racing to a courthouse in her chosen country to obtain a custody judgment would turn the Convention on its head. To consider this case moot would encourage the very sort of jurisdictional gerrymandering the Convention was designed to prevent.

The Court of Appeals also held that the district court's decision to admit the January 21 letter into evidence over Iain's objection that the letter was an offer of settlement and thus inadmissible under Federal Rule of Evidence 408 was error. Iain challenged the district court's findings that he (1) failed to establish that the children were habitually resident in Australia; (2) failed to establish that he was exercising his custody rights; and (3) consented to the children remaining permanently in the United States.

The district court identified May 4, 2011, the day Iain filed his petition for return in the district court, as the date the retention began. It considered that to be the date when
Iain first "unequivocally signaled h[is] opposition to [the children's] presence in the
United States."Although Iain had expressed his intent to file a petition for return of the children in the January 21 letter (and again in a follow-up letter on February 16), the district court declined to view these statements as "unequivocal[ ] signal[s]" of opposition because, in the court's view, "it was apparent that Petitioner was referring to the Convention as a bargaining chip." Nothing but speculation supported the
district court's "bargaining chip" idea. The January 21 letter unequivocally said that "[t]he parties' habitual residence is quite clearly Australia."It goes on to point out that the "clearly appropriate forum" for the parties' divorce proceedings is Australia and that it is "an abuse of process to unilaterally decide to remain in the United States."It then repeats that "Western Australia is the habitual residence of the children."Finally, the letter announces Iain's intent to file a petition under the Hague Convention, a step that he confirmed in his February 16 letter. Under the circumstances, it was hard to see how much more "unequivocal" one could be. For purposes of analysis, the court assumed that the retention began on January 21, or, at the latest, several weeks thereafter.

The Court of Appeals observed that to prevail on his petition, Iain was required to show that Australia was the children's habitual residence at the time of their retention in the United States. It explained in detail how to determine a child's habitual residence in Koch v. Koch, 450 F.3d 703 (7th Cir.2006). In a case of wrongful detention the court determines a child's habitual residence by asking whether a prior place of residence ... was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time. Because the parents often dispute their intentions, "the court should look at actions as well as declarations" in determining whether the parents "shared an intent to abandon a prior habitual residence."

The district court found that the children's habitual residence became the United States by January 21, 2011, at the latest. This conclusion was premised on the
following findings: that Iain consented to the children's living in the United States in
the January 21 letter; that five months passed between the letter and the filing of
the petition for return in district court; and that Iain and Norene looked for houses in
the United States. The first finding fundamentally misreads the January
21 letter. The problem with the second finding was that Iain took prompt steps to secure the children's return by filing a request for return with the Australian Central Authority in mid-February 2011, as soon as it became apparent that a negotiated settlement was not forthcoming. The Court could not find enough in the record to support the conclusion that Iain and Norene arrived in the United States with the shared intention of abandoning Australia and establishing a new habitual residence here.

Assuming that the children's habitual residence was Australia, Iain must still show he
was "actually exercis[ing]" his custody rights at the time of the retention. Art. 3. The
standard for finding that a parent was exercising his custody rights is a liberal one, and courts will generally find exercise whenever "a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007) Indeed, "a person cannot fail to 'exercise' [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066. Although it acknowledged the liberal nature of the standard, the district court nevertheless found that Iain had "abandoned" his children. In support of this rather
extreme conclusion, the court noted that Iain did not return to the United States after
July 2010, that he ceased supporting Norene financially after January 21, 2011, and
that his January 21 letter was mainly concerned with "the negotiation of support
payments and property settlement." All of those things may be true, but they did not add up to "unequivocal abandonment" of the children (as opposed, perhaps, to Norene). The district court overlooked Norene's undisputed testimony that Iain keeps "regular contact" with the children by speaking to them weekly over Skype. Just as the January 21 letter did not show that Iain consented to the children's remaining in the United States, it similarly did not show that Iain was interested exclusively in reaching a settlement regarding marital property. A letter that requests custody for the children's entire summer vacation plus Christmas and asks for multiple visitation opportunities at other times of the year can hardly be characterized as indifferent to custody issues.

lain's lack of financial support after January 21, 2011, was not enough for a finding of abandonment. Because non-exercise is evaluated at the time of the retention, which must have occurred on January 21 or shortly thereafter, lain's failure to provide support after the retention was irrelevant to whether he was exercising his custody rights when the wrongful retention began. See, e.g., Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir.2005) The cases that address some version of this issue have found that a parent does not fail to exercise his custody rights merely by failing to provide financial support for some period prior to the removal or retention. The Court could not find on the current record that Iain's failure to provide financial assistance while Convention proceedings are pending amounted to a failure to exercise his custody rights.

Even if Iain had established a case for return under the Convention, he could
have waived that right if he consented to, or acquiesced in, the children's remaining in the United States with their mother. Art. 13. Consent and acquiescence are analytically distinct defenses to return under the Convention. Baxter, 423 F .3d at 371. The consent exception applies when a petitioning parent, either expressly or through his conduct, agrees to a removal or retention before it takes place. A parent's consent need not be formal, but "it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. Acquiescence is implicated if a petitioning parent agrees to or accepts a removal or retention after the fact. Baxter, 423 F.3d at 371. Unlike consent, acquiescence must be formal, and might include "testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." One way or another, the "exceptions [must] be drawn very narrowly lest their application undermine the express purposes of the Convention. The Article 13 exceptions are permissive: a court may order return even if it finds that the parent opposing the petition has established that one of the exceptions applies.

The district court found that Norene had established consent. The bases for this
conclusion were the January 21 letter, which the district court characterized as indicating Iain's "unconditional consent" to the children remaining in the United States, Iain's failure to visit the United States after July 2010, and his failure to provide financial support. The January 21 letter could not be read as an expression of consent, let alone unconditional consent, to anything. The letter was an opening offer, a single stage in a negotiation; it conceded nothing and in any event was rendered null by the parties' failure to come to an agreement. Apart from the letter, the district court's remaining justifications were either clearly erroneous or irrelevant.

Having concluded that the district court's decision the Court remanded for further fact finding setting forth the questions the district court must resolve taking evidence as necessary.

Estrada v. Salas-Perez, 2012 WL 4503147 (N.D.Ill.) [Mexico][Habitual Residence] [Grave Risk of Harm]

2012-11-20T11:20:00.001-05:00

In Estrada v. Salas-Perez, 2012 WL 4503147 (N.D.Ill.) Petitioner Enrique Estrada and Respondent Sofia Salas-Perez were the parents of a seven year-old child. On February 13, 2012, Estrada filed a Hague Convention petition in the district court. The district court granted the petition.

Estrada was born in Mexico and moved to the United States in or around 1996. He was a Mexican national. Estrada moved from Illinois back to Mexico in May 2007. . Salas-Perez was born in Mexico and moved to the United States in or around 2001 with her son Rigoberto. She was a Mexican national and currently resided in Illinois.Estrada and Salas-Perez met in Mexico as children. When Salas-Perez first moved to Chicago, Estrada helped her get situated. On October 5, 2004, in Chicago, Salas-Perez gave birth to the child. Estrada's and Salas-Perez's romantic relationship ended in or around May 2006. On July 17, 2006, Estrada filed in the Circuit Court of Cook County, Illinois, a petition to establish his paternity of the child. On August 25, 2006, the Illinois court entered an agreed order awarding Estrada the "sole care, custody, control and education" of the child. Salas-Perez was given weekend visitation rights and was required to pay child support. After losing his job, Estrada decided in 2007 that he wanted to move back to Mexico with the child. Without obtaining Salas-Perez's consent or the Illinois court's permission, Estrada moved with the child to Mexico on May 27, 2007. Salas-Perez did not have advance notice of the move and did not learn that Estrada had left for Mexico with their child until days later. On July 17, 2007, on Salas-Perez's motion, the Illinois court entered an emergency order of protection requiring Estrada to return the child to Illinois, in compliance with the court's August 2006 custody order. On July 26, 2007, Salas-Perez submitted a Hague Convention petition to the United States Department of State, claiming that Estrada's removal of the child to Mexico was wrongful because it violated her custody rights under the Illinois court's August 2006 and July 2007 orders. Salas-Perez's petition eventually was registered in the Family Court of Cuautitlan Izcalli, Mexico. Estrada enrolled the child in kindergarten and elementary school in Mexico. On May 16, 2009, Estrada married a woman named Janet. Estrada did not learn of Salas-Perez's Hague Convention petition until June 2009, when he was served with process by a Mexican court officer.

In January 2010, Salas-Perez, filed a Motion for Modification of Parenting Agreement in the Illinois court. The motion asked the state court to modify the August 2006 order to give Salas-Perez sole custody of the child. In early 2010, Estrada and Salas-Perez spoke about negotiating a custody agreement; Salas-Perez credibly testified at the evidentiary hearing, without contradiction, that Estrada threatened that she would not be able to see the child unless she reached an agreement with him. An agreement was reached with the assistance of the parties' lawyers; Salas-Perez's lawyer was not licensed to practice in Mexico. Salas-Perez's lawyer told her that it might be difficult for the Mexican authorities to bring Estrada into court, and that the fastest and surest way for her to see the child again would be to reach an agreement. In March 2010, the Office of the Secretary of Foreign Relations of Mexico wrote a letter to the Mexican family court reporting that the parties had reached an agreement regarding custody. The letter noted that Salas-Perez had submitted the custody agreement to the Secretary of Foreign Relations for the purpose of having it signed by Estrada and ratified by the Mexican court. Salas-Perez signed the custody agreement at the Mexican Consulate in Chicago in front of a consular official. The custody agreement was entered on March 17, 2010, by the Mexican family court. The court order was signed by the Mexican judge, a representative of the Mexican Ministry of Foreign Affairs, Estrada, Estrada's attorney, and Silvia Torres Elizondo. Elizondo signed on Salas-Perez's behalf, having previously been granted power of attorney.

The March 2010 custody agreement provided for shared custody. It stated that the child shall remain "under the care and attendance of her father [Estrada] in the domicile located in [Cuautitlan Izcalli, Mexico] in reason of considering both convenient and healthy for their minor daughter." It further provided that the child shall attend school in Mexico under her father's "attention," that Salas-Perez shall have phone privileges while the child is in Mexico, and that the child shall visit Salas-Perez in
Illinois during school breaks in December, Holy Week, and the summer. The agreement also provided that the child shall return to Mexico from Illinois around the time school resumes after those breaks. n August 3, 2010, the Illinois court entered an order stating: “As this settlement agreement addresses all issues before this Court and the respondent having moved this Court for leave to withdraw her Motion to Modify the Parenting Agreement, ...respondent is given leave to withdraw her Motion to
Modify the Parenting Agreement.” The order was prepared by Salas-Perez's counsel. In March 2010, July 2010, December 2010, and April 2011, consistent with the March 2010 custody agreement, the child visited Salas-Perez in Chicago for one - to three-week periods. At the end of each of these four visits, Salas-Perez sent the child back to Mexico. The child traveled to Chicago to visit Salas-Perez in May 2011 for summer vacation. Salas-Perez did not allow the child to return to Mexico in August 2011. Salas-Perez retained the child because the child said that she had been abused by Janet (Estrada's wife) in Mexico.

On September 30, 2011, Estrada filed a Hague Convention petition with the Mexican Central Authority seeking the child's return to Mexico. The Mexican Central Authority forwarded the petition to the United States Central Authority on October 3, 2011. The district court found that Salas-Perez retained the child in Illinois in August 2011 by failing to return her to Mexico for the start of the school year and that Mexico was the child's habitual residence immediately before the retention occurred. Estrada's unilateral and unauthorized move of the child to Mexico did not in any respect weigh in favor of finding the child's habitual residence to be Mexico. The child's habitual residence was Illinois in the wake of, and in the years following, Estrada's move to Mexico with the child in May 2007. The child's habitual residence changed from Illinois to Mexico in March 2010, when the Mexican family court entered an order ratifying the custody agreement reached by Estrada and Salas-Perez. The March 2010 custody agreement explicitly manifested Estrada's and Salas-Perez's shared intent as of March 2010 that the child spend most of the year with Estrada in Mexico, where she would attend school, and that she stay with Salas-Perez in Chicago only during school vacations. The agreement resolved the judicial proceeding that the Mexican court opened to adjudicate Salas-Perez's Hague Convention petition, which sought the child's return to Illinois; the agreement therefore manifested Salas-Perez's unequivocal understanding and intent that the child's principal residence be Mexico rather than Illinois.

Salas-Perez contended that the March 2010 custody agreement did not reflect her true intent because it was signed out of fear that Estrada otherwise would have prevented her from seeing the child. The contention was not without force, and had it been made immediately after she signed the agreement, a close question would have been presented. But much water passed under the bridge between March 2010, when the agreement was entered by the Mexican family court, and the summer of 2011;
during that time, Salas-Perez's actions plainly and unequivocally demonstrated that she shared an intent with Estrada that the child's habitual residence be Mexico. Salas-Perez sent the child back to Mexico after four visits to Illinois between March 2010 and May 2011, reflecting her ratification and acceptance of the custody agreement even if it had been coerced at its inception.

The Court held that Estrada had rights of custody over the child under Mexican law at the time of the August 2011 retention.. The custody agreement was entered by the Mexican family court in March 2010, and it required Salas-Perez to return the child to Mexico in August 2011 so the child could resume school there. Estrada's custody rights under Mexican law were beyond any reasonable dispute.

Salas-Perez also argued that Article 16 prohibited the Mexican court from deciding "the merits of rights of custody" while her Hague Convention petition was pending. Convention, art. 16 ("After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."). The argument failed. The Mexican court that entered the March 2010 order was the very court before which Salas-Perez's Hague Convention petition was proceeding, and Salas-Perez expressly agreed to the entry of that order. Salas-Perez's submission that the Mexican court could not approve a custody agreement that she herself reached with Estrada could not be reconciled with Article 13(a), which excuses an otherwise wrongful removal or retention if "the person ... having the care of the ... child... had consented to or subsequently acquiesced in the removal or retention."Convention, art. 13(a)."[I]t is hard to think of a more formal acquiescence than entering into a consent order providing that the other parent be awarded custody ."

The Court held that Salas-Perez's retention of the child in Illinois breached Estrada's custody rights under the March 2010 custody order. By failing to send the child back to Mexico in August 2011, Salas-Perez deprived Estrada of his right to custody of the child during the school year. Estrada exercised and sought to exercise his rights of custody as of the time of retention. Estrada proved by a preponderance of the evidence that Salas-Perez's retention of the child in Illinois was wrongful under Article 3 of the Convention.

The court held that Salas-Perez did not prove grave risk by clear and convincing evidence. In July 2011, Salas-Perez brought the child to see Jennifer Lara, a licensed clinical professional counselor. Lara's written report of August 12, 2011, was admitted into evidence, and Lara testified at the evidentiary hearing.

On the parties' joint motion, the court appointed Dr. Hector Machabanski, Ph.D., a clinical psychologist, as an expert under Federal Rule of Evidence 706. The parties agreed that the court could consider Dr. Machabanski's report without having to call him to testify. They also agreed that neither party would call the child to testify.

Janet required the child to eat food that had been put in a blender. The court credited Lara's unrebutted testimony that the child understood this to be a form of punishment. But the court also credited Estrada's unrebutted testimony that a doctor in Mexico recommended that the child's food be blended in those instances when the child was experiencing trouble swallowing. The child told Dr. Machabanski that Janet hit her on the arm two or three times, once with a wooden spoon, and that Estrada once hit her on the bottom with a shoe. Lara's report noted that the child said that she had been hit on the arm with a wooden spoon, hit on the bottom (though by Janet, not by Estrada), and thrown onto the couch, but the report did not address the frequency of those physical episodes. Lara's report also noted that the child said that she was forced to eat spicy food without being given water or tea. Dr. Machabanski concluded that "the episodes of hitting in Mexico were rare and unusual events, not recurrent or part of a pattern of violence. Lara testified that she disagree with this conclusion. The court resolves this discrepancy in Dr. Machabanski's favor. Lara's report stated that the child "did not want to return to Mexico with her father ... and his family because they made her feel 'bad.' Lara opined at the hearing that returning the child to Mexico would place her at a grave risk of psychological harm in light of the hitting episodes and the child being required to eat blended food.

Dr. Machabanski's report indicated that when asked about how she was treated in Mexico, her response was 'they treated me well.' When asked about having any problems in Mexico, her answer was 'no.' Later she said that Janet disciplined her, yelled, and hit her. When asked about the hitting, [the child] showed a slight slap on the arm, adding that perhaps it was two or three times and that it was always in the arm and once it happened with a wooden spoon." The report further stated: "When asked about where she would like to live and with whom, [the child] said, 'I don't know' several times. Later, she added that it was a difficult question and that she would like to live with both parents." Dr. Machabanski's report concluded: "While hitting children is not acceptable or an appropriate way of managing or disciplining them, in terms of what is generally defined as child abuse ..., what [the child] seems to report about the incidents in Mexico do not seem to constitute significant or a serious pattern and do not seem to suggest that [the child] would be in any kind of grave risk if she were to return to Mexico. It is possible that the attention given to this matter and/or the reaction of others to the reports of hitting/abuse and other issues in this case would make [the child] highlight or tune into these matters more than might be appropriate. The hitting episodes seem rare and not severe, and [the child] seems to describe her overall life in Mexico as positive and desirable."

The court found Dr. Machabanski's conclusions regarding the risks of returning the child to Mexico more persuasive than Lara's conclusions. The evidence showed that there were a handful of physical episodes during the two years that Janet lived with Estrada and the child. While both Lara and Dr. Machabanski opined that physical discipline was unacceptable, the court agreed with Dr. Machabanski that the "rare and unusual" physical episodes-which in addition to being rare and unusual were not terribly severe when compared by the episodes described in reported Hague Convention cases, did not create a serious risk of physical or psychological harm, let alone a grave risk of such harm. The evidence also showed that the child was required to eat blended-up food on at least one occasion and perhaps others. That may seem unusual, but Estrada and Janet took this step on a physician's advice after the child experienced trouble with swallowing. If Estrada and Janet had not followed that advice, they might have been deemed grossly inattentive for allowing the child to be insufficiently nourished despite having received medical advice on how to address the child's swallowing problems. Their decision to follow the physician's advice could not be deemed to have placed the child at a grave risk of physical or psychological harm.

Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.Puerto Rico) [England] [Rights of Custody]

2012-11-13T10:15:00.004-05:00

In Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.Puerto Rico) Petitioner Lisandro Patrick was a national of the Dominican Republic and a Dutch citizen, who was permanently residing in the United Kingdom (England) when he filed a petition under the Hague Convention for the return of minor child L.N.R. in June 2012. Petitioner claimed respondent Noelia Rivera-Lopez, the mother of the infant, wrongfully removed L.N.R. on March of 2012 from England to Puerto Rico without petitioner's consent.

Petitioner Patrick and respondent Rivera-Lopez were married on June 8, 2010, in Lajas, Puerto Rico, after L.N.R. had been born. Petitioner Patrick submitted that, upon their marriage, he moved to England to set up a family home where respondent and her minor children joined him by January 11, 2011. Petitioner Patrick alleged the parties were all permanent residents of the United Kingdom where petitioner had been employed as a sales assistant, while he was attempting to convert his teaching qualifications so that he could begin working as a primary school teacher in the United Kingdom. Petitioner Patrick submitted that, since January of 2011, all the parties have been living in the United Kingdom as a family until March 6, 2012 when respondent Rivera-Lopez wrongfully removed the child L.N.R., and together with her older child, moved back to Puerto Rico. After several attempts to contact respondent, by March 11, 2012, she notified petitioner they would not be returning to the United Kingdom.

On June 22, 2012, petitioner Patrick filed an action under the Hague Convention. Respondent Rivera-Lopez filed a Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The most relevant ground for dismissal of the petition was that he was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R.

The district court observed that a petition needs to first comply with the requirements set up in the Hague Convention prior to federal court having jurisdiction on the claim. The Court agreed with respondent that petitioner failed to comply with the requirements of wrongful removal under the Hague Convention inasmuch as respondent was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R. and granted the motion to dismiss.

The Court pointed out that Petitioner Patrick presented with the petition, and respondent included in the motion to dismiss, an affidavit where petitioner acknowledged, prior to L.N.R.'s birth, that the child, male or female, who was to be born from respondent was his. At the time, petitioner indicated he was domiciled in Puerto Rico. It was acknowledged that petitioner Patrick never registered L.N.R. as his daughter after her birth, during their marriage nor prior to the filing of the petition.

Respondent acknowledged petitioner and respondent were the natural parents of the minor L.N.R. and during her stay in England with her two children, they were residing with petitioner Patrick in the same place. The Court held that petitioner Patrick had to establish having rights of custody over L.N.R. that would allow the filing of the petition for return of the child under the Hague Convention to be proper. Respondent argued there was no parental responsibility agreement between the parties nor was there any action commenced where petitioner Patrick requested parental responsibility, guardianship or residence order as to the child. It was uncontested that respondent Rivera-Lopez was the mother of minor L.N.R., who was born in the year 2009 in the city of Mayaguez, Puerto Rico, and who was registered with the Puerto Rico Demographic Registry solely as the child of respondent Rivera-Lopez.

The Court did not need to hold a hearing to determine the child's habitual place of residence because, taking the averments of the petition as true under the motion to dismiss standard, it considered England to be the habitual place of residence of the child immediately prior to her alleged removal. Thus, it used the laws of England to
construe rights of custody of petitioner Patrick over minor L.N.R. The Court found that under the laws of England petitioner did not establish having rights of custody/ parental responsibility over minor L.N.R. Although the laws of England since the key
changes of the Children Act of 1989 were implemented, abandoned the notions of
rights of custody, there are equivalent residence orders and contact orders proceedings to determine any dispute between parents regarding their minor children and these orders encompass the parental responsibility predicate. For purposes of this petition, the law of England refereed to England and Wales.

The Court observed that when a father and a mother are married to each other at the time of the birth of the child, their joint parental responsibility is established at the time of the child's birth. This was not a factual predicate as to petitioner Patrick for at the time of birth of L.N.R. in 2009 they were residents of Puerto Rico and they were not married. Even had the parents been in England at such time, they were still not married until 2010. English law provides: [w]here a child's father and mother were not married to each other at the time of his birth- (a) the mother shall have parental responsibility for the child; (b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act. Children Act 1989 (c.41) Part I, s 2(2). Although the Children Act does not employ the word "custody" as a legal term of art, it provides in relevant part that: "[w]here a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child," which is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." Children

Act ss 2(1), 3(1) (emphasis added); see Haimdas v. Haimdas, 720 F.Supp.2d 183 (E.D.N.Y.,2010). The most likely way to acquire parental responsibility between unmarried parents after a child's birth is being named as a father in the child's birth certificate. See Amendment to the Children Act of 1989 as reflected in the Adoption and Children Act of 2002, effective in December of 2003. It was undisputed that petitioner Patrick did not appear as the father of minor L.N.R. in her birth certificate. Minor L.N.R. was registered solely in the birth certificate issued in 2009 in Mayaguez, Puerto Rico, by the mother, respondent. Another way to acquire parental responsibility by a father is to make a formal parental responsibility agreement with the mother, which has to be made in the form prescribed under the laws of England and be signed before a court officer. Children Act of 1989 P 4(1)(b). No such formal agreement or court officer documented form had been presented in regard to the parental responsibility of petitioner Patrick. The law of England also allows two other means for unmarried fathers to acquire parental responsibility, that is, by having a parental responsibility order made in his favor under Section 4(1)(c) of the Children Act of 1989 or by having a residence order made wherein a separate Section 4 parental responsibility order must be made. Children Act of 1989, P 12(1).FN13 None of those means were used by petitioner Patrick in this case to acquire parental responsibility of L.N.R.

The inquiry did not end here. The Court examined whether the subsequent
marriage of petitioner Patrick and respondent Rivera-Lopez was sufficient to establish the necessary parental responsibility determination as to minor L.N.R. A stepfather who has married a woman with children may be able to obtain parental responsibility determination under the Adoption and Children Act of 2002 which prospectively is considered to have amended the Children Act of 1989. When parents are unmarried or those who were married after the birth of a child, a father may acquire parental responsibility by being registered as the child's father under the Children Act of 1989, as provided by subsections (1A); or if the father and the child's mother make an agreement providing for parental responsibility of the child or if the court on his application orders that the father shall have parental responsibility. Where the birth was registered after December of 2003, parents will have joint parental responsibility if the details of both parents and their signatures are shown in the child's birth certificate.

None of these situations were present in the instant case.

The Court held that petitioner Patrick failed to establish a prima facie case of wrongful removal under the Hague Convention inasmuch as he had not established that his custody rights were breached and that he was exercising the custody rights at the time of removal.

Petitioner's reply to the motion to dismiss juxtaposed that, as present residents of England, the laws of Puerto Rico would have concluded that upon the parties' subsequent marriage after the birth of L.N.R. on June 8, 2010, when they were
domiciled in Puerto Rico, the illegitimate child would have been legitimated by virtue of the marriage. Thus, the child was to be considered also legitimate under English law and petitioner as the legitimate father would have rights of custody to such a legitimated child. Petitioner referred to law of England at Legitimate Act of 1976, Part 1, Section 3 which provides that: where parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognized as having been so legitimated from the date of the marriage.

The district court found that the laws of Puerto Rico did not validate petitioner's averment as to a legitimated child, because a subsequent marriage would not automatically grant a child or children the paternity of the man who thereafter married the mother. Puerto Rico's legislative system allowed no room for liberal interpretation regarding facts of life recorded in Vital Statistics Registry of Puerto Rico and exceptions in its Sections 1041et seq. must be construed restrictively. See Leon Rosario v. Torres, 109 D.P .R. 804 (1980). The marriage of two individuals, whose children had been born prior to their marriage, who have not been registered by both contracting parties as theirs, will not be automatically considered as begotten by the married couple prior to such a marriage. Puerto Rico law requires that the recognition of a natural child be made in a public document or in an affidavit, and upon the presentation of the document or affidavit, the keeper of the Register of Vital Statistics would proceed to register it, and, for that purpose, the corresponding certificate of registration must be filled out. See Ramos v. Rosario, 67 P.R.R. 641 (1947).

Petitioner Patrick never presented to the Puerto Rico Vital Statistics Office the affidavit referred to in his petition where he claimed having recognized the minor L.N.R. who was to be born from respondent Rivera Lopez. For these reasons the court was not in a position to recognize whether the document would be considered as establishing, without more, the paternal rights of petitioner Patrick under Puerto Rico laws or if it would have been accepted as sufficient by the keeper of the Register to recognize L.N.R. as the child of petitioner and respondent. Petitioner did not go either to the Demographic Registry in Puerto Rico to recognize L.N.R. as his daughter following the readily available established procedure for a father to recognize a child as his son or daughter.

The Court dismissed the petition finding that Petitioners parental rights had not been previously established for the Court to exercise its limited jurisdiction under the Hague Convention.

Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) [Mexico] [Habitual Residence] [Grave Risk of Harm] [Article 20]

2012-11-12T11:03:00.001-05:00

[Mexico] [Habitual Residence] [Grave Risk of Harm] [Article 20]

In Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) Rocio Jatsuel Chavez Rodriguez's filed a Petition for return. Rodriguez was a Mexican citizen who resided in the State of Nayarit, Mexico, most of her life. She recently moved to the State of Jalisco. Sieler was a United States citizen and resided in Kalispell, Montana. Rodriguez and Sieler met in Nayarit in 1996 when Sieler began doing mission work there through a church. They were married by the church there on May 5, 1999, and were married legally in Kalispell on December 4, 1999. For the next several months, Rodriguez and Sieler lived in Kalispell with Sieler's parents. During this time, Rodriguez was granted temporary residency in the United States, and the couple raised funds from local churches so that they could return to Nayarit to build a church. Rodriguez and Sieler returned to Nayarit in September 2002. They lived together in the house of Rodriguez's parents for the first few years while building a church, and in 2005, a home, in the town of Ursulo Galvan. Sieler was a pastor in the church and Rodriguez worked as a schoolteacher. Their monthly support check from the church was deposited in a joint checking account at the Mountain West Bank in Kalispell, Montana, and both Sieler and Rodriguez paid taxes to the IRS and the Montana Department of Revenue. In 2003, Sieler filed for an "FM3" as a non-immigrated visitor to Mexico doing religious work. During the same year, Rodriguez was granted permanent resident status in the United States. Thereafter, Rodriguez and Sieler returned to the United States annually for four to six weeks at a time, usually during the summers. Sieler testified that as a missionary, he knew his stay in Mexico would not be permanent. However, Rodriguez testified that they never agreed how long they would reside in Nayarit and that she did not believe a move was imminent because Sieler had told her that he had been called to serve in Mexico. Sieler's and Rodriguez's son, P.A.S.C., was born in Mexico on December 20, 2004; he was now 7. C.J.S.C. was born on March 23, 2009; she was now 3. Both children were registered as United States citizens born abroad and issued American passports. However, they lived in Ursulo Galvan with both their parents their entire lives, except for the few weeks a year that the family visited Kalispell. They lived close to Rodriguez's parents and siblings, with whom they spent significant time, and P.A.S.C. attended preschool and primary school there.

In July and August of 2011, the family made their typical summer trip to Kalispell.
Sieler testified that at this time, he had begun to seriously consider moving the family
back to Montana. During the visit, he decided he was going to move. Rodriguez testified that he did not tell her of his plan during this visit and that she would not have agreed to the move. Sieler insisted he did tell her his intention and that while she was not angry, she was not happy about it either and that she neither said she would or would not come with him. The family returned to Mexico on August 20, 2011. Two days later, Sieler's father passed away, and Sieler returned to Kalispell to help settle his family's affairs. Rodriguez and the children joined him in late September, expecting to help out for a couple of months and then to return to Mexico. Rodriguez testified that it was at this time that Sieler first told her he planned to move to Montana permanently. She denied ever agreeing to move or to allow the children to move to Montana. Sieler confirmed that Rodriguez never said she wanted the children to move to Montana permanently, although in his affidavit before the state court, he suggested that Rodriguez was helping him prepare for a permanent move. The parties agreed that the proposed move caused or amplified tensions in their marriage that fall. Rodriguez returned to Mexico with C.J.S.C. on December 25, 2011, because her sister was ill. Sieler and P.A.S.C. returned to Mexico a month later. P.A.S.C. re-enrolled in school in Nayarit.

The problems in Sieler's and Rodriguez's marriage continued in Mexico. For the next four months, Sieler continued to advocate moving the family to Kalispell, and Rodriguez continued to resist his plan. She began contemplating separation. On May 7, 2012, still in Nayarit, during an argument, it appeared that Rodriguez suggested that Sieler could take P.A.S.C. and that she could take C.J.S.C. if they separated. Sieler contended she meant that he could take P.A.S.C. to the United States permanently. Rodriguez denied she gave permission for Sieler to permanently remove P.A.S.C. from Mexico or her care. She testified that she meant that a short separation might help them resolve their difficulties and that they could each take care of one of the children during that separation. When Rodriguez awoke the next morning, Sieler and both children were gone. She went to one of Sieler's fellow missionaries who told her that Sieler had taken P.A.S.C. and C.J.S.C. and left for the United States. Sieler finally contacted Rodriguez from Kalispell and informed her that neither he nor the children were returning to Mexico. Rodriguez did not agree to that arrangement. Within days, Sieler initiated dissolution and custody proceedings in Kalispell, and Rodriguez made efforts through the Mexican and United States consulates in Guadalajara, Jalisco, Mexico, to initiate return proceedings. Rodriguez's efforts resulted in the present case. The state court proceedings in Kalispell were stayed pending resolution of this petition.

The district court found that the habitual residence of both children was Mexico. "Being habitually resident in a place must mean that you are, in some sense, 'settled' there-but it need not mean that's where you plan to leave your bones." When determining a child's habitual residence, the Court must consider "the parents' present, shared intentions regarding their child's presence." Their intentions may be express or inferred through their actions. Where it is alleged that a child has acquired a new habitual residence, the Court must find the parents shared a "settled intention to abandon" the prior habitual residence. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) The habitual residence of both P.A.S.C. and C.J.S.C. was Mexico, where they were born and raised. Both children resided in Ursulo Galvan in a house with their parents from the time they were born until they were removed to the United States by their father. Their family on their mother's side was in Nayarit, and P.A.S.C. attended preschool and primary school there. Though C.J.S.C. was very young, she was born in Mexico while her parents were habitually resident there. Thus Mexico was her initial habitual residence, and no circumstances had changed that. The children visited Kalispell, Montana, on summer vacations and when their paternal grandfather passed away, but they always returned to Mexico, and their parents never mutually agreed that they should move to Montana. Mexico provided the family and social environment in which the children's lives developed.

Sieler emphasized that the work of a missionary is often transient, and that Rodriguez knew this when they were married. He also noted that the children were American citizens and that Rodriguez was a permanent resident of the United States, which requires a person to plan to reside permanently in the United States at some future point. He suggested that Rodriguez may have been equivocal at times about whether she would eventually agree to move the family to Montana. These facts did not alter the Court's conclusion, however. The decision to alter a child's habitual residence cannot be accomplished through wishful thinking alone or by unilateral action. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) It was evident from both parties' testimony that when it came down to it, Rodriguez refused to move to the United States though Sieler insisted. Nor did she ever expressly or through her actions indicate that she intended either child to move permanently to the United States in May 2012. There was no evidence she made arrangements to move herself or the children to the United States, and she consistently expressed disagreement with Sieler's intention to move.

Even if, during their argument on May 7, 2011, Rodriguez gave Sieler permission to take P.A.S.C. to the United States, the consent of the parent left behind "is not usually enough to shift" the child's habitual residence absent other circumstances from which the Court can infer a shared intent that the child abandon the previous habitual residence. Rodriguez denied any intent to allow the move to be permanent, and her testimony was entirely credible. It was not reasonable for Sieler to take Rodriguez's statement as permission to take either or both children from the country and her care permanently. Moreover, when Rodriguez woke to find the children and Sieler gone, she immediately objected and persistently sought their return ever since. There was no evidence of a "shared, settled intent" that the children abandon their habitual residence of Mexico for a new habitual residence in the United States.

There was no parenting plan, judicial or administrative decision, or other agreement regarding custody of P.A.S.C. and C.J.S.C. Thus, the law of the children's habitual residence, Mexico, governed the question of whether Rodriguez has custody rights over the children. The Court observed that custody law in Mexico is based on the concept of "patria potestas " or "patria potestad." Patria potestas is common to all of Mexico's states, including Jalisco, where Rodriguez was currently residing, and Nayarit, where the children were born and raised. Patria potestas governs the relationship between parents and their children, conferring upon both parents, jointly, the broadest possible right over their children's care, custody, and well-being. Title 8, ch. 1, art. 406

Nayarit Code. The patria potestas right has consistently and rightly been recognized as a right of custody under the Hague Convention. The term "right of custody" is construed broadly under the Convention, and, in both Nayarit and Jalisco, the right of patria potestas clearly encompassed the right to care for a child and determine the child's residence, see Nayarit Civil Code, art. 405, doc. 6-3 ("Parental authority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets and is instituted for their care and protection."); Ramirez, 2012 WL 606746, (citing Jalisco Civil Code, art. 581). Additionally, the Nayarit Civil Code specifically provided that a child shall not leave the parents' residence without their permission, and in Jalisco as well, both parents must consent to the removal of the child from the country. Ramirez, 2012 WL 606746.

Once custody rights are established, it is presumed that a person who has care of her child is exercising her custody rights, and it is the respondent's burden to prove otherwise. Convention, art. 13(a). There was no evidence presented that Rodriguez was not exercising her custody rights at the time the children were removed from Mexico in May 2012 or that she had lost those rights and responsibilities under articles 435 or 436 of the Nayarit Civil Code. Moreover, the children were living with both parents, as they had throughout their lives, up through the morning of their departure, and they were cared for by both Rodriguez and Sieler. Accordingly, Rodriguez established that she had joint custody rights over P.A.S.C. and C.J.S.C. under Mexican law and that she was actually exercising those rights at the time of their removal. Alleging that the P.A.S.C. and C.J.S.C. were removed from Mexico without her consent, Rodriguez established a prima facie case that there removal and retention in the United States was wrongful.

The Court held that respondent did not show by a preponderance of the evidence, that the petitioner "consented to or subsequently acquiesced in the removal or retention" of the children from their habitual residence. He removed both P.A.S.C. and C.J .S.C. from Mexico without Rodriguez's consent. He did so secretly, while Rodriguez was sleeping, and prevented her from learning of his plan until he was already out of the country. Sieler admitted that he did not have permission to take C.J.S.C. out of the country. However, he insisted that Rodriguez consented to his removal of P.A.S.C. based on her alleged statement, just hours before he took P .A.S.C. from the country, that they could separate and he could take care of P.A.S.C. and she could take care of C.J.S.C. This statement, made during a late-night argument, was not sufficient to establish consent to P.A.S.C.'s removal from Mexico. There was no evidence the couple shared an understanding that P.A.S.C. would thenceforth live in the United States with Sieler. Even if this disputed and broad statement could be construed as consent to take P.A.S.C. out of the country, Rodriguez immediately and vehemently objected to Sieler's retention of P.A.S.C. in the United States and his intent to keep both children here permanently. Rodriguez's efforts to negotiate some settlement about the children's care and custody, despite Sieler's unilateral actions, could not be construed as acquiescence in P.A.S.C.'s continued retention in the United States, particularly as no agreement was reached and Rodriguez persisted in her efforts to have both children returned to Mexico. The Court held that P.A.S.C. and C.J.S.C. were wrongfully removed from Mexico, in violation of Rodriguez's custody rights, on May 8, 2012 when Sieler took them out of the country or, at the latest, were wrongfully retained in the United States when Rodriguez objected to Sieler's plan to keep them in the United States permanently.

Sieler urged the Court to apply the grave risk of harm exception here based on increased violence in Mexico due to drug cartel activity. The once quiet State of Nayarit was under military control due to the cartels, there were bodies hanging off overpasses; random shootings throughout the city; and ambushes at police check points. Sieler's sister-in-law was caught in a shooting at the grocery store in which 8 people were killed and many others wounded. Kidnappings, home invasions, and robberies greatly increased. The same sister -in-law was later robbed at knife point in her home, which was close to the children's grandparents' house where Rodriguez and the children spent a significant amount of time. Additionally, Sieler alleged that his brother-in-law might be involved in a drug cartel and that the house across from the family's home in Ursulo Galvan is a "drug house." Finally, he noted that houses in Nayarit as well as the rest of Mexico typically have reinforced doors and bars on the windows and that children are taught in school what to do if a shooting takes place. Sieler indicated that he had read about the general increase in violence in newspapers of general circulation and warnings from the United States Department of State, and that he had heard stories of kidnappings and other incidents from church members and friends. Rodriguez testified that much of the violence Sieler described had occurred in Tepic, the capital of Nayarit, which was two and half hours from Ursulo Galvan.

The Court pointed out that like the other exceptions," the grave-risk exception is " 'drawn very narrowly lest its application undermine the express purposes of the Convention, to effect the prompt return of abducted children. The risk must be "grave, not merely serious," and the exception should only be applied in "extreme cases,". Educational or economic opportunities or other such advantages are not appropriate considerations under the grave-risk inquiry. Blondin v. Dubois, 238 F.3d 153, 161-62 (2d Cir.2001); Cuellar, 596 F.3d at 511. Additionally, "because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future." Gaudin, 415 F.3d at 1037. The Sixth Circuit has held that a grave risk of harm can be found "when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g., returning the child to a zone of war, famine, or disease." Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir.1996). Courts have construed this standard narrowly, in conformance with the goals of the Hague Convention. In Silverman v. Silverman, for example, the Eighth Circuit rejected the district court's finding that Israel constituted a "zone of war" warranting the application of the grave-risk exception, holding that there must be "specific evidence of potential harm to the individual children." 338 F.3d 886, 900 (8th Cir.2003). Allegations of "general regional violence, such as suicide bombers, that threaten everyone in Israel" were "not sufficient."

The Court observed that at least two district courts have considered facts strikingly similar to those alleged by Sieler. In Vazquez v.. Estrada, the district court rejected the respondent's argument that returning the child to Monterrey, Mexico, would expose her to a grave risk of physical harm due to the "'spiraling violence and surge in murders in Monterey' and because of 'specific violent acts that have been committed in the school [the child] attended in Monterrey and in the neighborhood where Petitioner resides.' " 2011 WL 196164, *5 (N.D.Tex. Jan. 19, 2011). A surge of violent activity, drug cartel activity, and a dangerous neighborhood were not sufficient to find that Monterrey was a "zone of war." Likewise, the district court in Castro v. Martinez held that the respondent failed to allege a grave risk when he alleged, among other things, that the area was burdened by drug cartel activities, the child had seen a Mexican police officer arrest and possibly beat an individual; the petitioner's home was unsafe; the child possibly saw violent acts in Mexico; and one or more of the mother's relatives may be members of a "gang cartel." --- F.Supp.2d ----, 2012 WL 359901, *2 (W.D.Tex. Feb. 2, 2012). The Court held that respondent did not meet the burden of proving a grave risk or intolerable situation by clear and convincing evidence.. He did not present "specific evidence of potential harm to the individual children" and most of his concerns were based on second- and third-hand accounts of violence in the region.

A court is not required to return a child to its habitual residence when the return
"would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Art. 20. The exception is construed even more narrowly than the grave-risk exception. Sieler contended the exception applied because "[t]he due process rights and fundamental freedom of Nayarit and Mexico in general are not at the same high level as the United States," he may face charges in Mexico and be arrested if he returns, he believes he would be in danger in Mexico, and he cannot access the judicial system in Mexico." Sieler provided no evidence, except his own speculation, to support his allegations and has therefore failed to establish the Article 20 exception by clear and convincing evidence.

Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) [England] [Attorneys Fees]

2012-11-12T10:59:00.002-05:00

In Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) the petitioner Kevin Lyon's moved for attorneys fees after the court granted his Petition for Return and ordered that his son F.M.S.L. be returned to England. The Court observed that the International Child Abduction Remedies Act provides that a court ordering the return of a child pursuant to an action brought under the act "shall" order the respondent to pay the petitioner's "necessary expenses" unless the respondent shows that such an order would be "clearly inappropriate ."

The petitioner provided proof of the requested fees and expenses. The court found that all of the amounts were "related to the return of the child," as required by 42 U.S.C. 11607(b) and declined to reduce the amount requested. It considered the total sum of $18,565.30 in fees, costs and expenses in calculating an appropriate award to petitioner.

Respondent argued that awarding any attorneys' fees and costs would be clearly
inappropriate because of the respondent's "straitened financial circumstances."

The court noted that it has the discretion to reduce any potential award to allow for the financial condition of the respondent. Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan. Sept. 19, 1996). In Berendsen, the court reduced the fee award in an ICARA case by 15% because of the respondent's financial status. Respondent relied on an ICARA case from the Eastern District of Pennsylvania to argue that no fees should be awarded against her. The court in In re Application of Hirts, found it clearly inappropriate to award any of the petitioner's $31,958.45 in expenses and costs against one respondent who had "straitened financial circumstances." See 2004 WL 1588227 at *1 n. 1. In that case the court explained that the respondent held assets totaling $610.22, was unable to become employed because of her immigration status, resided with her children in a women's shelter, and received government assistance to cover their daily living expenses.However, the court held the other respondent in the case responsible for paying $20,000 of the petitioner's expenses. The court explained that the second respondent held assets of $42,695.73 and received a pension of $300 per month. Additionally, the court noted that she had no obstacle preventing her from working in some capacity. Although the court stated that this second respondent suffered from straitened financial circumstances, it pointed out that her position was "in no way as severe" as the first respondent's. As a result, the second respondent was required to pay the petitioner's expenses, but the court reduced the amount by 37%.

The district court recognized the respondent's straitened financial circumstances. She had no job in England, no income, no car, and no savings. She applied for financial aid and housing benefits in England, but was been unable to receive either because of a habitual residence test. Respondent was living on loans from her family to support herself and her young child. Respondent had not identified any obstacles preventing her from getting a job. However, petitioner stopped paying $450 per month in child support to respondent in February 2012. Since February, respondent received only $189 from petitioner in child support. Meanwhile, respondent paid $3,031.49 in moving and basic living expenses. Additionally, she paid $2,505.00 for airline tickets to England for a hearing at the High Court in London. Although petitioner was ordered by the court to pay for those airline tickets he had not reimbursed respondent for them. Given the respondent's financial position, the court found that awarding any of petitioner's attorneys' fees against the respondent would be clearly inappropriate and denied the motion.

　

　

Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262 (N.D.Ill.) [Israel] [Grave Risk of Harm] [Article 20]

2012-11-04T11:39:00.002-05:00

In Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262 (N.D.Ill. Juaquin Walker ("Petitioner") brought an action for the return of his daughter to Israel under the Hague Convention. Petitioner claimed that Jaquelyn Kitt ("Respondent"), the Child's mother, wrongfully retained the Child in violation of the Convention and ICARA. The district court granted the petition.

Petitioner and Respondent both joined the Black Hebrew Israelite community in Dimona, Israel in the 1970's, as children. Members of the Community recite vows each year in which they promise not to question the judgment of the leader of the Community, who is Considered to be the spiritual Messiah. The Community permits polygamous marriage, and the Israeli government recognizes such marriages as legitimate. In general, women in the Community are subservient to men. A woman's path in life consists of getting married and serving her husband. Petitioner testified that if a woman acts not in accordance with her husband's wishes, she should be punished.

Respondent testified that women are not able to express themselves in the Community. Several additional witnesses testified that women in the Community do not have the ability to make decisions governing their own lives, but that the leader and the men make the decisions. Respondent began to pursue Petitioner when she turned seventeen and was of age to be allowed by the Community to do so. On April 30, 2003, Respondent married Petitioner, becoming his second concurrent wife. Petitioner has six children with his first wife. Before they married, Petitioner's first wife slapped and spat on Respondent. Respondent testified that after the marriage, she continued to be disrespected and verbally abused by Petitioner's first wife, and that she was treated like a servant by Petitioner and his first wife. Respondent gave birth to the Child in Israel in September 2004. Respondent moved out of Petitioner's house in May 2005, but after Petitioner reported her action to Community officials, she moved back in. In October 2005, Respondent again moved out of Petitioner's house and into her father's, taking the Child with her. Petitioner ordered Respondent to return to his house, but she refused. In October 2005, shortly after she moved out of Petitioner's house, the Community leadership requested that Respondent travel to the United States to work in one of the Community's restaurants. She explained to Petitioner and several members of the Community leadership that she did not want to be separated from her daughter, but she was told to go anyway. Respondent believed that if she did not obey the Community leadership, she could be expelled from the Community. Respondent left Israel to come to the United States at the request of the Community leadership in December 2005. She returned to Israel in May 2007 and stayed with her sister. Respondent and Petitioner were not on speaking terms, and the Child stayed with Respondent at her sister's. Respondent returned to the United States in August 2007. She again visited Israel in June 2009. ( She stayed in Israel for six months, and the Child stayed with her during this period. Respondent's mission ended in 2009, yet she returned to the United States in December 2009. Respondent returned to Israel in June 2011, and she remained there until she left for the United States with the Child in September 2011.

In a declaratory judgment action in September 2011, an Israeli family court issued an order, based on DNA testing, declaring Petitioner's paternity of the Child. The Child was currently eight years old. She lived in Israel her entire life until Respondent brought her to the United States in September 2011. Petitioner and Respondent agreed that the Child would visit the United States with Respondent until the end of the Jewish holiday season in November 2011.(Petitioner and Respondent reported to the Child's school and the United States Embassy in Israel that the Child would return to Israel after less than two months. Respondent and the Child resided in the Washington, D.C. area from September 2011 until the filing of this action in July 2012. Respondent testified that, once in the United States, the Child "began to cry regularly, saying she did not want to go back to Israel, but that she wanted to stay with [Respondent] in the U.S. instead." In late October, Petitioner requested that Respondent's brother, who was planning a trip to Israel, bring the Child with him. Respondent understood the agreement to entail Petitioner's coming to the United States to retrieve the Child and did not allow the Child to return to Israel with Respondent's brother. In November 2011, Respondent retained the Child beyond the two-month visit that she and Petitioner had agreed upon. Respondent testified that she received phone calls from Petitioner's family informing her that Petitioner was planning on kidnaping the Child.

Petitioner filed a Petition and Emergency Petition for Warrant of Arrest, which was granted and Petitioner was given temporary custody of the Child pending resolution of his petition for her return. A hearing was held on October 11. Respondent did not provide any evidence or arguments that the removal was not wrongful either in her response or in the evidentiary hearing. Given that the Child lived in Israel from the time she was born until Respondent brought her to the United States in September 2011, a fact the parties stipulated to, the Court found that the Child was a habitual resident of Israel. The Israeli law relevant here, provided by Petitioner, is Israel's Capacity and Guardianship Law of 1962. The law provides that parents, as the natural guardians of their minor children, have "the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf."Capacity and Guardianship Law, 5722-1962, 16 LSI 106, 14-15 (5722-1961/62) (Isr.). As the Child's natural father, Petitioner had custody rights over her, which were breached by Respondent's retention of the Child past the agreed-upon time period. If a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir.1996)(Friedrich II ). No such acts were present in this case; in fact, by Respondent's own admission, Petitioner cared for the Child during the time periods when Respondent was in the United States and was a good father. Finally, Petitioner obtained an ex parte decision in the Beer Sheva Family Court in Israel declaring that Petitioner and Respondent have joint custody rights under Israeli law, and that Respondent's actions had violated Petitioner's custody rights.

Thus, the Court found that Petitioner has met his initial burden and has established a prima facie case of wrongful retention under the Hague Convention.

The Court rejected the affirmative defenses asserted by Respondent. Respondent did not provide the Court any reasons or evidence indicating that the Child should be considered of sufficient age and maturity to have her views considered. The Court conducted an in camera interview with the Child on October 11, 2012. The Court asked the Child where she considered "home." The Child answered firmly and without hesitation, "in Israel." "The Court found it unnecessary to determine whether the Child was of sufficient age and maturity to have her views considered because the Child did not give any indication that she would prefer to remain in the United States. Thus, Respondent's assertion of the "age and
maturity" exception failed because the Child did not object to returning to Israel.

Respondent contended that the Court should refuse to return the child based on Article 13(b) of the Convention. Respondent believed "there is a grave risk that the child would be exposed to physical and psychological harm and that the child would be put in an intolerable situation" if the Court ordered her return to Israel. Respondent contended, and introduced multiple witnesses at the evidentiary hearing to testify, that women are subordinate to men in the Community. Respondent testified that the Child should stay in the United States where she would have better opportunities for education and self-expression than she would in the Community. Additionally, Respondent testified that she had been mistreated by Petitioner's first wife and treated as a servant in Petitioner's household. Respondent's mother, who had lived in the Community at least part-time for 35 years, expressed concern that as the daughter of Petitioner's second wife, the Child may not receive the same opportunities or affection as his other children.

The Court commended Respondent's desire to provide better educational opportunities for her daughter while admonishing her methods. However, the Article 13(b) exception is "not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. The lack of opportunities available to women in general and children of second wives more specifically does not approach a "grave risk of harm" or an "intolerable situation" for the purposes of the Convention. The Court did not condone the subordination of women. Given the testimony about the lack of meaningful educational opportunities and the limited roles available for women in the Community, the Court empathized with Respondent's desire to raise her daughter in the United States. However, where the Child may be better off is a custody matter, which is reserved for the courts in the country of her habitual residence. The Court concluded that returning the Child to a community that may only ever afford her second-class status because of her gender does not pose a grave risk of harm as intended by Article 13(b) of the Convention. Respondent testified that she believed Petitioner was a good father; that she believed he would protect the Child from harm; that he had never abused or neglected the Child or any of his other children; that Respondent felt comfortable with the Child visiting and staying with Petitioner; and that she had never had any reason to contact the police or social services about Petitioner.

Respondent appealed to the exception provided in Article 20 of the Hague Convention. Article 20 states that "[t]he return of the child ... may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20. Respondent contended that "[p]olygamy is illegal in the United States without exception. And molestation and the subjection of women are considered to be against the fundamental principles of this society." Respondent argued that even if Israel has laws with respect to those behaviors, "the government acquiesces, at least in the polygamy realm." Respondent filed a supplemental brief alleging that "[e]qual protection of women is a fundamental principle in the United States." Respondent argues that because "[t]he principles and practices of this community are anathema to the fundamental principles of the United States relating to the protection of human rights and fundamental freedoms of women," the Child's "future prospects in this community will be affected negatively by the role designated to women." Finally, Respondent suggested that the facts that all adults in the Community pledge yearly oaths of allegiance and obedience to the leader and that the Child "may inevitably have to pledge oaths and submit to the wishes of the leader" might "utterly shock the conscience"of the Court.

Both Respondent and the Court were unable to find a single decision from a court in the United States in which a child was not repatriated based on Article 20. Respondent's counsel admitted failure to find precedent but argued that "there has to be a case where [Article 20] does apply." The court held that this case is not it. While polygamy is certainly illegal in this country, and the systemic subordination of women is incompatible with the United States' aim of equality, "the Convention requires that the fundamental principles of the State not permit the return of the child; merely offending principles espoused in [United States] laws is insufficient." Habrzyk v. Habrzyk, 759 F.Supp.2d 1014, 1027 (N.D.Ill.2011) .The narrow jurisdiction of the Court, however, was limited to determining if any defense exists to the mandatory repatriation of the Child for the purposes of custody proceedings in Israel. Unfortunately, the fact that the Child may not have as robust rights as a man when she reaches maturity does not shock the conscience under Article 20. Cultural gender inequality is a serious issue. However, accepting cultural gender inequality as a sufficient basis for an Article 20 defense would undermine the Convention. To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights
would seriously cripple the purpose and effectivity of the Convention. The Court found that Respondent had failed to provide the clear and convincing evidence necessary in asserting an Article 20 defense.

Prouse v. Thoreson, 2012 WL 5199182 (W.D.Wis.) [Italy] [Habitual Residence

2012-11-04T11:35:00.001-05:00

In Prouse v. Thoreson, 2012 WL 5199182 (W.D.Wis.) Petitioner Giorgio Prouse brought an action against his wife, respondent Robin Thoreson under the Hague Convention, petitioning for the return of his minor daughter to Milan, Italy.

The district court denied the petition. It pointed out that before respondent brought their daughter to the United States. Petitioner Dr. Giorgio Prouse and respondent Robin Thoreson were married and the parents of an eight-year-old child, JP. Petitioner lived in Milan, Italy, and worked as a cardiovascular surgeon. Until December 2011, respondent lived in Milan and worked as a flight attendant out of Chicago, Illinois. JP was born in Milan and lived there with her parents for most of her life. JP visited the United States regularly during her school breaks and spent time here with her maternal grandparents. In the summer and fall of 2011, while petitioner was still completing his residency program, the family began experiencing financial difficulties. Throughout 2011, the parties discussed various living arrangements after petitioner completed his residency in 2012. The parties agreed that respondent and JP would go to the United States, where JP could attend the local school and live with respondent's parents while respondent worked. On December 28, 2011, respondent and JP flew to the United States. They moved in with respondent's parents in Beloit, Wisconsin, where JP began attending school in the local school district. Respondent's parents cared for JP while respondent lived during the week in Chicago. Respondent made a trip back to Milan in early January to finish cleaning their previous home and to bring some of the family pets to the United States. When respondent and JP left Italy, petitioner listed the family's home for sale or lease and entered into a four-year lease with the right to renew the lease for four additional years. Next, he moved into the family's old apartment, a small one-bedroom below ground unit adjacent to his mother's home. Finally, he wrote JP's school in Milan and informed the administrators that JP would no longer be in attendance due to "our move" to the United States for "sudden, unexpected reasons of work ." (Petitioner said that he referred to "our move" only in an attempt to persuade the school to refund a portion of JP's tuition that he had already paid.) Petitioner, respondent and JP visited each other in the United States and Italy in the following months. Petitioner visited the United States in January 2012 for JP's birthday. At that time he asked respondent to book the return portion of his flight for August "when returning to Italy would be difficult. He made no mention of taking JP back to Milan with him in August or any other time. JP then visited petitioner in Italy in March and April of 2012 for Easter break. They booked another trip for JP to go to Italy between July 14, 2012 and August 4, 2012. In April 13, 2012, petitioner informed respondent over the telephone that he wished to end their marriage. Respondent emailed petitioner and told him that she would do anything to make the marriage work, including moving back to Italy, transferring to another city that had more frequent flights to Milan on which she could work or moving somewhere else after petitioner finished his residency. Four days later, she flew to Italy. During her visit, she asked petitioner where she and JP would live. Petitioner told her that "the United States is a big place" and that Arizona would be a good place for her and JP because respondent's friend Michelle could help respondent raise JP. That summer, respondent became convinced that she and JP should no longer live with her parents and should look for a place of their own. On June 6, 2012, respondent emailed petitioner, explaining her concern and her desire to talk to him about moving and whether he would be able to help her financially. Petitioner agreed to help respondent and JP rent their own place. Petitioner and respondent communicated a few more times about the price of a rental, but eventually respondent dropped the issue. Petitioner assumed it was because she had worked things out with her parents. Before petitioner began this action, he did not tell respondent that he wanted JP to return to Italy for school in the fall. JP had a successful spring semester of school in Beloit. Although JP was engaged in life in the United States, respondent emailed petitioner on June 17, 2012 that JP missed "home, the dogs, you, etc." On June 26, 2012, respondent filed for divorce in Cook County, Illinois. The next day, petitioner came to the United States to attend his sister's wedding in Washington D.C. Respondent dropped JP off at the Chicago airport so that she could travel with petitioner to the wedding. She picked up petitioner and JP from the airport when they returned from Washington D.C. The next morning, July 2, 2011, respondent and JP took petitioner to the airport for his return flight to Italy. At some point while petitioner was in Chicago, a private investigator served him with respondent's divorce petition. Despite the pending divorce, the parties continued to communicate about JP.

On July 30-31, 2012, after obtaining legal counsel Petitioner filed a criminal complaint and an action under the Hague Convention in Italy, followed by this action, which he filed on September 5, 2012.

The district court observed that in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Court of Appeals for the Ninth Circuit undertook a lengthy analysis of the term "habitual residence" that other courts have relied on since then. In this case, the analysis was straightforward. Both parties agreed that their financial difficulties required leaving Milan and taking up residence in the United States, where they could reduce their living expenses and where petitioner would be likely to find a higher paying position than he could obtain in Italy. They agreed that respondent would leave in December 2011 with JP, who would live with respondent's parents while respondent increased her work hours as a flight attendant (and reduced her commuting expenses), and petitioner would come when he finished his residency. With that plan in mind, petitioner applied for a refund of JP's tuition from her expensive international school, saying that the family was moving to the United States; put the couple's home on the market, either for sale or rent; and moved back into a small below ground apartment in Milan. Respondent cleaned out the family home, moved all the family pets to the United States and enrolled JP in a local school in Beloit, Wisconsin, where JP's grandparents lived. This was ample evidence of the parties' settled purpose in December 2011 to establish a new residence in the United States. JP's eight months of residency in this country, her success in the local schools and her involvement in horseback riding supported a finding that her habitual residence was now in the United States. This finding was bolstered by the fact that home environment to which she was accustomed in Italy no longer exists; her home was rented out and she was no longer enrolled in the school she had been accustomed to attending.

Petitioner argued that he never acquiesced in JP's continued residence in the United States. The proof was to the contrary. As explained at length, he made no arrangements for her to come back to Italy to attend school. The record contained nothing in writing to suggest that he ever told respondent that he wanted JP to return to Italy to live with him. The finding that JP's habitual residence was not the United States answered the question whether she was wrongfully removed or retained. She was not. She came here and continued to reside here in accordance with a plan developed by both of her parents at a time when they had a shared intent. Her father's subsequent decision to end his marriage to her mother did not mean that he did not have the settled intent in December 2011 to move his family to the United States for an indefinite period.

As to whether the removal breached petitioner's rights of custody under the law
of the child's habitual residence, that question was moot in view of the finding that the removal was in accordance with the parties' agreement to move to the United States, as was the question whether respondent was exercising his custody rights at the time.

Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) [Sweden] [Habitual Residence]

2012-10-23T18:20:00.004-04:00

In Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) Petitioner Niklas Jensie ("Niklas"), a native and citizen of Sweden, met Respondent Marlena Jensie ("Marlena"), a native and citizen of the United States, in 1998. Marlena moved to Sweden in 2001, and the couple established a residence in Goteborg, Sweden, where Niklas's family lived. Niklas worked as a computer technician and Marlena, after attending Swedish educational courses, became employed as a preschool teacher. The couple married in 2003 while on a visit to Marlena's home state of Utah.

The couple's daughter, L.N.J. was born on January 2, 2009, in Goteborg , and she had dual Swedish and American citizenship. Soon after their daughter's birth, Niklas and Marlena travelled to the United States for approximately four weeks to visit Marlena's family so that they could meet L.N.J. In 2010, Marlena became a Swedish citizen. The couple began raising L.N.J. in Goteborg. In 2010, after Marlena returned to work from maternity leave, L.N.J. began attending a Swedish preschool. L.N.J. also spent time with Niklas's family and engaged in typical childhood activities. Each parent spoke to L.N.J. in their native tongue, but L.N .J. understood Swedish. In the summer of 2011, Niklas and Marlena again travelled with L.N .J. to the United States for vacation for approximately four to five weeks, visiting Marlena's family in several states. Other than these vacations, L.N.J. resided in Goteborg with her parents and attended preschool.

In late 2011, Niklas told Marlena that he wanted to separate. Marlena was upset by this news. The suggestion was made that Marlena travel to the United States to visit with her family and "clear her head." Tickets were purchased for Marlena and L.N.J. to travel to the United States on December 13, 2011, with a booked return for February 5, 2012. Marlena and L.N.J. did not return to Sweden as scheduled and Niklas had not consented to the trip extending past February 5, 2012. When Marlena did not return on February 5, Niklas called her and learned that she was still in the United States. Niklas immediately sought legal advice and contacted the Swedish government for assistance. He also began pleading with Marlena to return to Sweden. Marlena eventually agreed to return to Sweden with L.N.J. on April 5, 2012, using new tickets purchased by Niklas. The return date was not chosen with any intent that Marlena and Lily would actually return to the United States at that time. When Marlena and L.N.J. returned to Sweden in April, Niklas moved out of the apartment they had been sharing and moved in with his sister. During the next few months, Niklas and Marlena shared custody of L.N.J. and began meeting with Swedish social services to mediate their divorce and custody issues. Niklas testified, and Marlena did not dispute, that the mediator cautioned her about the seriousness of her prior refusal to return L.N.J. to Sweden in February.

Marlena testified that she believed that Niklas knew that it was her intention to return to the United States with L.N.J. once they had the custody issues worked out, and that the two had discussed various possible arrangements along those lines. Niklas, however, testified that he never consented for Marlena to take L.N.J. back to the United States to live and that, in fact, he was seeking an equal parenting schedule of every other week with custody of their daughter.

On June 7, 2012, Marlena sent Niklas an email stating, inter alia,:"Please don't turn in the divorce papers just for the sake of getting moving on things. Can we stop fighting? " Niklas nonetheless filed for divorce in early June. The parties had a mediation scheduled for June 25, 2012. The mediation was rescheduled for July 5, 2012. Marlena did not appear for the mediation on July 5. Alarmed, Niklas went to the apartment but Marlena and L.N.J. were not there. L.N.J.'s clothes and toys appeared undisturbed, however, and the apartment appeared normal. Niklas then discovered that Marlena's and L.N.J.'s passports were not in their normal place. . Niklas's eventurally concluded that Marlena had taken L.N.J. to Taylor Mill, Kentucky, where her father now resided. The next day, July 6, 2012, Niklas contacted the Swedish Central Authority and filed an Application for Assistance Under the Hague Convention on Child Abduction requesting L.N.J.'s return to Sweden. Niklas filed his petition on October 5, 2012.. On October 10, 2012, the Goteborg District Court entered an order granting Niklas full custody of L.N.J.

The district court granted the Petition. It observed that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions." Friedrich, 983 F.2d at 1401. "A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to removal. The court must look back in time, not forward." Friedrich, 983 F.2d at 1401. Here, the evidence showed that L.N.J. was born in Sweden on January 2, 2009, and, but for family vacations, lived there until December 2011, engaging in normal family activities and attending preschool. Sweden was where she had been "present long enough to allow acclimatization" and where there was "a degree of settled purpose from the child's perspective." In December 2011, L.N.J. traveled to the United States with her mother, with the understanding that they would return in February 2012. The Court concluded that this trip of several months did not alter L.N.J.'s customary residence in Sweden. (Citing Blanc v. Morgan, 721 F.Supp.2d 749, 760 9W.D.Tenn.2010) (holding that fact that mother took child on extended trips to United States did not alter child's habitual residence of France). That Marlena overstayed the February 2012 return by two months was also immaterial because time spent by a child in another country after any wrongful removal or retention does not factor into the "habitual residence". The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. The same was true with respect to the approximately three and a half months that L.N.J. spent in the United States since her removal from Sweden in July. Moreover, although Marlena insisted that she always intended to return to the United States to live with L.N.J., such parental future intentions generally do not factor into the Sixth Circuit's child-centric analysis. Therefore, the Court concluded that L.N.J.'s habitual residence prior to July 2012 was Sweden.

The Court noted that under Swedish law, married parents have joint custody by operation of law. (Citing Fridlund v. Spychaj-Fridlund, 654 F.Supp.2d 634, 637-38 (E.D.Ky.2009)). Here, at the time of L.N.J.'s removal from Sweden in July 2012, there had been no judicial or administrative decision or agreement that altered Niklas's parental rights, and Marlena admitted this during the evidentiary hearing. Based upon the facts, the Court also concluded that Niklas was exercising his custodial rights when L.N.J. was taken from Sweden. Thus, to defeat a showing that removal was wrongful, Marlena has to prove by a preponderance of the evidence that Niklas consented to the removal. The Court had already found as a fact that Niklas did not consent to L.N.J.'s removal to the United States in July 2012, regardless of what the parties' prior discussions were regarding possible solutions to the custody dilemma. A parent's deliberately secretive actions is "extremely strong evidence" that the other parent would not have consented to removal. Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007) Marlena admitted that Niklas did not know she was leaving with L.N.J. when she did, and the surrounding circumstances indicated that she knew that Niklas would not have consented to L.N.J.'s removal to the United States. It was clear that when Niklas responded to Marlena's text message of July 2 confirming that he was seeking a 50/50 shared parenting arrangement, Marlena panicked. Under questioning by the Court, she admitted as much, conceding that she was afraid what a Swedish court might do with respect to custody. As soon as Niklas learned of her departure with L.N.J., he immediately took steps to secure his daughter's return. The Court had no doubt that Niklas did not consent to L.N.J.'s removal from Sweden.

　

　

　

Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Notice & Opportunity to Be Heard]

2012-10-22T11:43:00.002-04:00

In Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) Petitioner filed his Verified Petition for the Return of the Child to Croatia and his Petition for Warrant in Lieu of Writ
of Habeas Corpus on October 9, 2012. The docket sheet for the case indicated that
respondent had never been served. This lack of service was confirmed by an Affidavit of in support of the Petition for Warrant in Lieu of Writ of Habeas Corpus.

The district court observed that the United States Supreme Court has established that "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." (Citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Service is also specifically required by the International Child Abduction Remedies Act, ("ICARA"), which implemented the Hague Convention on the Civil Aspects of International Child Abduction. Under ICARA, "[n]otice of an action brought under subsection (b) of this section shall be given in accordance with the applicable law governing notice in interstate child custody proceedings." (42 U.S.C. 11603(c)). In New York, the laws governing notice in interstate child custody proceedings are the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified in Domestic Relations Law, §§75-78a and the federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, 42 U.S.C. § 663 ("PKPA"). Both the UCCJEA and the PKPA require that, prior to any child custody determination, notice must be given to, inter alia,"any parent whose parental rights have not been previously terminated[ ] and any person having physical custody of the child." (Dom. Rel. Law § 76-d; 28 U.S.C. § 1738A(e). Accordingly, courts in this district deciding petitions under the Hague Convention have consistently required service on the respondent. [Citing Ebanks v. Ebanks, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007) (ruling that service was necessary for the Court to exercise personal jurisdiction and that petitioner was required to serve respondent in accordance with New York law)].

The District Court declined to grant the Petition for Warrant as it appeared that while the Court had subject matter jurisdiction over the case there was no personal jurisdiction over respondent absent proper service.

Hynes v. Berger, 2012 WL 4889854 (D.Md.) [Germany] [Federal & State Judicial Remedies] [Denial of Notice and Opportunity to be Heard]

2012-10-19T09:40:00.000-04:00

In Hynes v. Berger, 2012 WL 4889854 (D.Md.), decided October 12, 2012, Shawn T. Hynes filed a "Hague Convention Article 15 Petition asking the court "to expeditiously decide and determine, in accordance with the ... Hague Convention's provisions, and at the specific request of the District Court in Schleswig, Germany, whether the removal or retention of the parties' minor daughter, K.B., by respondent, Ulrike C. Berger, a/k/a Julie Berger, ... was wrongful within the meaning of Article 3 of the Hague Convention ...." Petitioner also filed a motion to expedite proceedings.

The court observed that it was in "a somewhat awkward position." The District Court in Schleswig, Germany, was scheduled to hold a hearing in this matter on October 23, 2012. Therefore, time was of the essence. Respondent, resided in the Federal Republic of Germany. Respondent had not yet been served, and the time for her to respond to the petition would be a date beyond October 23, 2012. The Court concluded that under the circumstances it should answer the question posed by the District Court in Schleswig, Germany. In doing it recognized that it had been denied the benefit of the adversary system that lies at the heart of the system of justice in the United States and without giving the Respondent notice or an opportunity to be heard, ruled in favor of Petitioner, giving Respondent 45 days after service of process upon her to move to rescind the order.

It ruled based upon the complaint and its attachments, Respondent's removal of K.B. from the child's habitual residence in Montgomery County, Maryland, in the United States of America, was wrongful within the meaning of Article 3 of the Hague Convention. For that reason it entered a judgment responding to the request made by the District Court in Schleswig, Germany that, based upon the information available Respondent's removal of K.B. from Montgomery County, Maryland, in the United States of America, to the Federal Republic of Germany was wrongful. The facts that lead to its conclusion were that Petitioner and Respondent, who were married to one another, were the parents of K.B., a five-year-old girl.. At the time of her removal, K.B.'s habitual residence was located in Montgomery County, Maryland, in the United States of America. Prior to her removal, Petitioner legally exercised his custodial rights by visiting K.B. and having regular telephonic and video conference and contact with her almost daily since the time that she was two years old. He also spent vacation time with K.B. Petitioner did not consent to removal of K.B. from Montgomery County, Maryland to the Federal Republic of Germany. Under Maryland law, absent a court order to the contrary, parents are deemed to be joint natural guardians of their minor child and neither parent is presumed to have any right to custody that is superior to the right of the other parent.

Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) [Mexico] [Attorneys Fees]

2012-10-04T13:27:00.003-04:00

In Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) the Court considered Petitioner Sonia Eledia Acosta Saldivar's "Application for Reasonable Attorneys' Fees and Costs . Having prevailed on the merits of the underlying action, Petitioner moved for award of expenses, including legal fees and costs, pursuant to 42 U.S.C. § 11607(b)(3), the fee-shifting provision of ICARA. In her fee application Petitioner sought attorneys' fees in the amount of $60,022 .00, litigation costs in
the amount of $11,718.16, and out-of-pocket expenses in the amount of $1,398.38.
Because Respondent asserted that he was financially unable to pay any award of fees and costs, the Court issued an order instructing Respondent to submit evidence in support of his assertion. After due consideration, the Court issued a lengthy and instructive opinion granting the application in part.

The Court observed that where, as here, a court has ordered the return of the child to his habitual residence, the court must order the respondent-abductor to pay "necessary expenses incurred by or on behalf of the petitioner," unless to so order would be "clearly inappropriate." 42 U.S.C. 11607(b)(3).The respondent has the burden to show that an award of fees or expenses would be "clearly inappropriate.

Respondent argued that Petitioner should be denied the statutory attorneys' fees and costs because her attorneys are employed by Texas Rio Grande Legal Aid, Inc. ("TRLA"), a publicly funded legal aid entity. Further, Respondent maintained that because Petitioner or a relative of Petitioner on her behalf had not paid or agreed to pay any attorneys' fees or costs to TRLA, the requested fees and costs have not been incurred on her behalf. Awarding fees under such circumstances, Respondent contended would reward legal aid societies, who are already funded by taxpayers, rather than compensating a petitioner for her legal fees and costs. Respondent invited the Court to interpret §11607(b)(3) as precluding an award where the petitioner is represented for free by a publicly funded legal aid entity. The Court rejected this argument. Given that the text of § 11607(b)(3) does not in any way limit the scope of the entities who may recover under it, the structure of § 11607(b) suggests that Congress did not intend to cut off from recovery legal aid entities-the very entities on which Congress intended to rely in fulfilling the United States's obligations under the Convention, and the legislative history points to Congress's adoption of the Department of State's broad understanding of the phrase "on behalf of," the Court concluded that under ICARA, an award of expenses, including legal fees and costs, is not inappropriate where the petitioner is represented by a publicly funded legal aid entity, such as TRLA.

Respondent further asserted that an award was clearly inappropriate here because Petitioner had "unclean hands." Given the statutory mandate that the Court "shall order the respondent to pay," it was unclear whether equitable principles such as "unclean hands" should apply to outright deny any recovery of fees and costs. In any event, the Court found that the doctrine of unclean hands did not operate to bar an award of fees in this case. The Court concluded that Respondent has failed to carry his burden to show that an award of necessary expenses, including costs and legal fees, was "clearly inappropriate" in this case. Petitioner, therefore, was entitled to an award.

The court held that to be awardable, the expenses must be "necessary"
to secure the child's return. Aldinger v. Segler, 157 F. App'x 317, 318 (1st
Cir.2005). Further, the expenses must be incurred in connection with an action brought under § 11603.Koch v. Koch, 450 F.3d 703, 719 (7th Cir .2006). To determine an appropriate legal fee award, federal courts typically use the "lodestar" method in Hague Convention cases. The calculation of attorneys' fees under the lodestar method is a two-step process. In the first step, the court calculates the lodestar amount by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers. In the second step, the court decides whether the lodestar amount should be adjusted upward or downward based on the circumstances of the case using the factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974) The attorneys' fees calculus is a fact-intensive one and its character varies from case to case." Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir.2000). The reasonableness of an attorney's hourly rate "depends on the experience and qualifications of the professional. Hourly rates are to be computed according to the prevailing market rates in the relevant legal market,
not the rates that lions at the bar may command. The relevant market was the
community in which the district court sits. Typically, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there. Finally, a legal aid counsel, though she does not exact a fee from clients, is awarded the same hourly rate that a counsel in the private bar with the same experience and skills as hers commands. The Court found that the reasonable hourly rate for Brown was $250 and the reasonable hourly rate for Saenz was $150.

The district court pointed out that it must determine whether the hours claimed were "reasonably expended" on the litigation; that is, whether the total number of hours claimed were reasonable and whether specific hours claimed were reasonably expended.. The fee applicant bears the burden of establishing the reasonableness of the number of hours expended on the litigation, and must present adequately documented time records to the court, Using this documented time as a benchmark, the court must exclude hours which, though actually expended, are excessive, duplicative, or inadequately documented. The court considered(1) Hours Spent for Petitioner's Hague Application; (2) Hours Spent for State Court Proceedings;
(3) Hours Spent for the Preliminary Injunction Hearing; (4) Hours Spent for Trial Preparation; (5) Hours Spent on Tasks Performed after the Child's Return; (6) Travel Time (noting that while travel time is not per se excludable, non-working travel time is often compensated at a discounted hourly rate. In re Babcock & Wilcox Co., 526 F.3d
824, 828-29 (5th Cir.2008): and (7) Fees for Fees, hours spent in preparation of her application for attorney's fees and costs-commonly known as "fees for fees." In the Fifth Circuit, it is settled that a prevailing plaintiff is entitled to attorney's fees for the effort entailed in litigating a fee claim and securing compensation. ; and (8) Hours Inadequately Documented. The court found that 71.8 hours expended by Brown were reasonable. It noted that if more than one attorney is involved, the possibility of duplication of effort along with the proper utilization of time should be scrutinized. The time of two or three lawyers in a courtroom or conference when one would do, may obviously be discounted. the Court found that 8.0 hours expended by Saenz are reasonable.

To arrive at the lodestar amount, the Court multiplied the reasonable hourly
rate by the number of hours reasonably expended. . For Attorney Brown, the Court multiplied 71.8 hours by the rate of $250, to arrive at the lodestar amount of $17,950, and for Attorney Saenz, it multiplied 8.0 hours by the rate of $150 to arrive at the lodestar amount of $1,200. The total lodestar amount therefore was $19,150. Once the court has calculated the lodestar, it noted that it may adjust upward or downward
after considering following Johnson factors: (1) the time and labor required to represent the client or clients; (2) the novelty and difficulty of the issues in the case; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee charged for those services in the relevant community; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. Of these factors, the court should give special heed to factors (1), (5), (8), and (9). Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir .2006)." The Court determined that adjustment due to Johnson factors was not warranted. The factors that would warrant an upward or downward adjustment had already been considered when the Court made its determination regarding the reasonable hours expended and the hourly rates.

Respondent stated that he lacked financial means to pay the amount of fees
requested by Petitioner. The court noted that it may reduce a fee award in a Hague Convention case, if it prevents the respondent-parent with straitened financial condition from caring for his child. Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995); Whallon v. Lynn, 356 F.3d 138, 139-40 (1st Cir.2004); see also Norinder v.
Fuentes, 657 F.3d 526, 536-37 (7th Cir.2011).Such reduction is equitable in nature, Rydder, 49 F.3d at 374, and the Court has "broad discretion," Whallon, 356 F.3d at 140. In determining whether and to what extent a fee award should be reduced on the basis of the respondent's financial situation, the Court inquires "whether respondent has clearly established that it is likely that h[is] child will be significantly adversely affected by the court's award." Upon due consideration, the Court found that Respondent's financial condition was straitened, particularly in light of the recent termination from his work. This was not to say that his straitened condition was a permanent one, for given his past work history, it was not unreasonable to assume that he would be employed again soon. Since the parties' separation in 2010,
Respondent provided monthly child support and paid for D.I.R.A.'s cost of education. Pursuant to the parties' divorce agreement, Respondent was obligated to pay child support for D.I.R.A. There was nothing to indicate that he would not continue to provide for the child. Therefore, a large fee award in this case would undermine "the ability of [the] respondent to care for [his] child." Whallon, 356 F.3d at 140. Accordingly, the Court was of the opinion that a reduction of the above-calculated fee award was warranted. However, the Court declined to reduce the fee award to an amount so little as to effectively result in a denial of all fees. To do so would contravene the statutorily mandated award of attorneys' fees and thwart the legislative purpose of deterring future violations of the Hague Convention. Accordingly, the Court reduced the fee award by 55%. A reduction on the account of straitened financial condition, however, would not be applied to litigation costs and out-of-pocket expenses. Accordingly, the Court ordered Respondent to pay attorneys' fees of $8,617.50.

Petitioner requested an award of $11,718.16 as litigation costs incurred on her
behalf by TRLA. Federal courts may only award those costs articulated in 28
U.S.C. 1920 absent explicit statutory or contractual authorization to the contrary." Costs taxable under § 1920 are per se awardable under § 11607(b)(3). Under s 1920, a court may tax the following costs: fees of the clerk and marshal; fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and copies of papers necessarily obtained for use in the case; docket fees; compensation of court-appointed experts, interpreters, and special interpretation services. 28 U. S.C.1920. The court allowed the following costs as necessary expenses: fees for filing the action ($350.00), fees for service of summon ($91.30), and compensation of interpreter used at trial ($780 .00). Petitioner itemized $65.56 for freight/postage expenses, without explaining for what purposes the freight was used. Because the Court was unable to determine their necessity without further elaboration, it disallowed this amount. Petitioner sought $1075 for translation services. These costs were necessary and the Court allowed them. Petitioner itemized $384 as transcript fees. The Court deem these costs as necessary. (28 U.S.C. 1920(2) ("Fees for ... transcripts necessarily obtained for use in the case."). Petitioner asked for $401.50 as costs for a court reporter and $150 for a videographer. The Court allowed the costs for the court reporter, but not the costs for videographer. Petitioner requested reimbursement of travel expenses incurred for Browns trips between Weslaco and El Paso. Reasonable transportation and lodging costs incurred by an out-of-town attorney are awardable under 11607(b)(3). A total of $1446.10 was disallowed, resulting in awardable travel expenses in the amount of $2146. Petitioner requested $4828.70 in expert fees for services rendered by Mariano Nunez Arreola. An attorney licensed to practice law in Mexico. Arreola worked for TRLA as its foreign legal advisor and served in this action as an expert on Mexican law. He provided his expert opinions on the issue of whether Petitioner's custody rights under Mexican law are "rights of custody" under the Convention. Hague Convention, art. 3. His services included researching the Federal Civil Code of Mexico, the Chihuahua Civil Code, and Mexican Jurisprudencia, interpreting the relevant law, and preparing two affidavits. Such services were clearly necessary to establish Petitioner's entitlement to the
return remedy, as contemplated by the Convention. Accordingly, costs incurred for services rendered by Arreola were generally awardable. The Court scrutinized the claimed expert fees for reasonableness and necessity and disallowed some of his time as well as $748.70 billed as travel expenses incurred for his trip to El Paso
to attend the hearing.

Lozano v. Alvarez, --- F.3d ----, 2012 WL 4479007 (C.A.2 (N.Y.)) [United Kingdom] [Well-Settled Defense] [Equitable Tolling]

2012-10-02T11:06:00.002-04:00

In Lozano v. Alvarez, --- F.3d ----, 2012 WL 4479007 (C.A.2 (N.Y.)) the Second Circuit observed that Article 12 of the Hague Convention, the “well-settled” defense, requires that a child wrongfully removed from a country be returned to that country in order to undergo a custody determination, unless the child is "now settled in its new environment." The Second Circuit held that courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under Article 12 of the Convention, and that when making a now settled determination, courts need not give controlling weight to a child's immigration status.

Diana Lucia Montoya Alvarez ("Alvarez") and Manuel Jose Lozano ("Lozano") met and began dating in London in early 2004. [ See In re Lozano, 809 F.Supp.2d 197, 203 (S.D.N.Y.2011).] They never married. From the child's birth on October 21, 2005, until November 19, 2008, Lozano, Alvarez, and the child lived together in London. In October 2008, Alvarez spoke with the child's doctor regarding a host of concerns, including the child's silence at the nursery, frequent crying, nightmares, and bed-wetting. The child's nursery manager also noted the child's unusual behavior and concluded that the "home 'environment obviously had a negative effect upon [her]. Based on the foregoing, the district court found that the child had been exposed to, and negatively affected by, the problems in the couple's relationship. On November 19, 2008, shortly after visiting her sister Maria in New York, Alvarez left the couple's apartment] to bring the child to nursery school and never returned. For the next seven months, Alvarez and the child resided at a women's shelter. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they lived since that time. In New York, Alvarez and the child lived with Alvarez's sister Maria, along with Maria's partner, daughter, and granddaughter. Alvarez had not had a job in the United States, but Maria had been employed as a nanny for the same family for four years and her partner owned a grocery business. Because Alvarez and the child had British passports, they were allowed to enter the United States without a visa" for a stay of ninety days or less. This period expired in October 2009. Alvarez testified that she had spoken with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen.

Since her arrival in New York, the child attended the same school and, at the time of the proceedings before the district court, was enrolled in kindergarten. The child's Academic Standards Reports from the 2009-2010 school year indicated that the child has been making progress both socially and academically. Outside of school, in addition to spending time with members of her extended family, the child had friends whom she met at the park and the library. The child was also enrolled in ballet classes and, on the weekends, attended church with Alvarez. After arriving in New York, both the child and Alvarez began receiving therapy from a psychiatric social worker at a family medical clinic. The therapist testified that "when she first met the child, the child was unable to speak, make eye contact, or play in the therapist's office."The therapist further noted that the child "would wet herself, was hypervigilant, and had a very heightened startle response.” By February 2010, the therapist diagnosed the child with post-traumatic stress disorder ("PTSD") caused by her "experience living in the
United Kingdom before coming to New York, including living in a shelter system, having to move to a new country, and knowing that her mother had been harmed or threatened." Within six months of arriving in New York, however, Alvarez reported that the child's behavior had improved. The therapist agreed with this assessment, describing the child as " 'completely different.'

After Lozano filed his petition for return in December 2010, Alvarez and the child resumed meeting with the therapist. After Alvarez's departure, Lozano took a number of steps to attempt to find his
child. Immediately after Alvarez left, he reached out to her sister in London, who denied any knowledge of Alvarez's whereabouts. In the summer of 2009, Lozano filed an application with a British court to "ensure that he obtains regular contact with his child.". He also, via court filing, submitted orders to Alvarez's sisters and her former counsel, as well as the child's nursery and doctor and various police and government offices, seeking information on the child's whereabouts. After exhausting all possibility that the child was still in the United Kingdom on March 15, 2010, he filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom. On November 10, 2010, Lozano filed a Petition for Return of Child in the United States District Court requesting an order requiring that the child be returned to London to have a British court make a custody determination.

The district court first held that Lozano had made out a prima facie case of wrongful retention under the Hague Convention because: (1) the child was a habitual resident of the United Kingdom; (2) Alvarez's unlawful removal of the child breached Lozano's custody rights under English law; and (3) Lozano exercised parental rights at the time the child was removed. The court noted that the child must be returned to the United Kingdom unless Alvarez established an affirmative defense. The district court rejected Alvarez's defense that "there is a grave risk" that the child's return to the United Kingdom would expose her to physical or psychological harm or otherwise place the child in an intolerable situation. However, it found that she had established the “now-settled” defense and denied the petition.

On appeal only the now settled defense was at issue. Lozano argued that the one-year period should be tolled until the time Lozano reasonably could have learned of his child's whereabouts. The district court disagreed, concluding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. Having rejected Lozano's tolling argument, the district court next held that the now settled defense applied and was a sufficient reason to have a United States court, as opposed to an English court, decide the child's custody.

On appeal, Lozano raised three principal objections to the district court's decision. First, he argued that, as a matter of law, the district court erred in permitting Alvarez to raise the now settled defense because the one-year period in Article 12 should have been equitably tolled until such time as he could have reasonably located his child. Second, Lozano contended that the district court erred in finding that the child was settled in New York despite the fact that neither the child nor her mother had legal status in the United States. Finally, even if lack of legal immigration status "does not preclude a well-settled finding as a matter of law," Lozano argued that "the District Court erred in finding that Alvarez proved by a preponderance of the evidence that the parties' daughter was well-settled in the United States.

The Second Circuit reiterated that in cases arising under the Convention and ICARA, it reviews a district court's factual determinations for clear error." Interpretation of the Convention, however, is an issue of law, which it reviews de novo. It also reviews de novo "the district court's application of the Convention to the facts it has found. It noted that in interpreting a treaty, it is well established that it begins with the text of the treaty and the context in which the written words are used. The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories. General rules of statutory construction may be brought to bear on difficult or ambiguous passages, but it also looks beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the signatory parties in determining the meaning of a treaty provision. While the interpretation of a treaty is a question of law for the courts, given the nature of the document and the unique relationships it implicates, the Executive Branch's interpretation of a treaty is entitled to great weight.

The Second Circuit agreed with the district court and held that while an abducting parent's conduct may be taken into account when deciding whether a child is settled in his or her new environment, the one-year period set out in Article 12 is not subject to equitable tolling. Neither Article 12 of the Hague Convention nor its implementing legislation, ICARA, explicitly permit or prohibit tolling of the one-year period before a parent can raise the now settled defense. Article 12 provides, in relevant part: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the proceeding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Accordingly, the default presumption under the Convention is that a child shall be returned to the state from which she originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "now settled in its new environment." Even if these two conditions are met, Article 12 does not bar the Central Authority of a Contracting State from ordering the return of a settled child. If more than one year has passed, a demonstration that the child is now settled in its new environment' may be a sufficient ground for refusing to order repatriation." Thus, while the text of Article 12 does not prohibit equitable tolling, the way the provision functions renders this sort of equitable relief unnecessary. Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. This interpretation of Article 12 was bolstered by Article 18, which provides that none of the provisions in the Convention "limit the power of a judicial or administrative authority to order the return of the child at any time."Convention. The Convention's drafting history strongly supported Alvarez's position that the one-year period in Article 12 was designed to allow courts to take into account a child's interest in remaining in the country to which she has been abducted after a certain amount of time has passed. If this understanding of the second paragraph of Article 12 was correct, allowing equitable tolling of the one-year period would undermine its purpose.
After the Second Circuit determined that the district court properly permitted Alvarez to raise the Article 12 now settled defense, it considered whether the district court erred in finding the child to be settled in New York. Lozano primarily argued that "[w]here an abducted child resides in the abducted-to country illegally, a well-settled finding should be barred as a matter of law." Given the Convention's text and purpose, the Second Circuit held that immigration status should only be one of many factors courts take into account when deciding if a child is settled within the meaning of Article 12.

Additionally, it held that, in any given case, the weight to be ascribed to a child's immigration status will necessarily vary. Neither the Convention nor ICARA defines "settled" or states how a child's
settlement is to be proved. It held that "settled" should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment. In making this determination, a court may consider any factor relevant to a child's connection to his living arrangement. Such an approach is in line with the Convention's overarching focus on a child's practical well-being. Factors that courts consider should generally include: (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 day care 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.

The Second Circuit rejected Lozano’s contention that the district court erred because it discounted the significance of the child's lack of immigration status once it found that the child did not face an immediate threat of deportation. For example, a child might be ineligible for certain government-conferred benefits. It noted that the importance of a child's immigration status will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits. Moreover, rather than
considering the weight to be given to a child's immigration status in the abstract, courts deciding whether a child is settled must simultaneously balance many factors which, as in this case, may not support the same determination.

The Court found that the district court's analysis was largely compatible with the approach it prescribed Lozano contended that the district court's finding were not backed by a preponderance of the evidence because "most of the evidence on the well-settled issue should not be given much weight because it came from [Alvarez's] own self-interested hearsay testimony, and to a lesser extent, from the therapist and child's school records.". Relatedly, Lozano claimed that Alvarez should have provided "corroborating testimony ... and other evidence of the child's connections to her new environment ." .These arguments were rejected.. None of Lozano's challenges to these findings left the Court with a definite and firm conviction that a mistake has been committed. The judgment of the district court was affirmed.

Felder v. Wetzel, --- F.3d ----, 2012 WL 4465591 (C.A.1 (Mass.)) [Switzerland][Rights of Custody]

2012-10-01T10:19:00.002-04:00

In Felder v. Wetzel, --- F.3d ----, 2012 WL 4465591 (C.A.1 (Mass.)) on May 19, 2012, K.W., a fourteen-year-old Swiss citizen, attempted to harm herself by ingesting pills while living in the United States with her godmother, Alexandra Ponder. She was then hospitalized at Children's Hospital Boston. On June 7, 2012, the Hospital declined to release K.W. to her mother, petitioner Claudia Felder, a Swiss resident, absent evidence such a release would comply with the child's treatment plan. It was undisputed that the mother had full custody of her daughter K.W. and that Switzerland was the country of habitual residence. Before these medical events Felder had signed an "Authorization for Medical Treatment of [K.W.]" giving "my authorization and consent for Alexandra Ponder to authorize necessary medical or dental care for this child." The form stated that Felder was the parent and legal guardian, and the authorization was limited. This was done because K.W. was attending school in Massachusetts in the Fall of 2011. Felder bought K.W. a July 12, 2012 return ticket to Switzerland at the end of the school year. K.W. flew back to Switzerland for the holiday break and then returned to Massachusetts on January 3, 2012.

Felder's Hague Convention petition stated that "on or about May 19, 2012 ... KW stated that she tried to hurt herself by ingesting certain medications belonging to Ponder." K.W. was initially taken to the emergency room at Holy Family Hospital in Methuen, Massachusetts, but was then transferred to the inpatient psychiatric unit of Boston Children's Hospital on May 23, 2012. Ponder informed Felder of K.W.'s hospitalization and Felder agreed that K.W. should receive immediate medical care; during the next three weeks, Felder monitored K.W.'s progress via Ponder and the staff at the Hospital while consulting with Swiss medical professionals. After K.W. had been hospitalized for three weeks, Felder and Dr. Andreas Schmidt, K.W.'s Swiss physician, proposed to the staff of the Hospital that K.W. be transferred to Zurich for further treatment. Felder's petition stated that she and Schmidt advised the staff at the Hospital that "they would take responsibility for KW's health and safety and would both personally accompany KW back to Switzerland."
On June 7, 2012, a social worker at the Hospital contacted Felder and advised her that the Hospital would not permit K.W.'s immediate return to Switzerland. On June 11, 2012, Hospital staff sent an email to Dr. Daniel Marti of the Kinderspital Zurich outlining the conditions under which K.W. could be safely returned to Switzerland. Felder contended that, at about this time, "Ponder stopped providing Mother with information about her daughter and, in conjunction with the staff at the Hospital,
prevented Mother and KW's sisters from having contact with KW." On June 17, 2012,
Felder told Ponder that she was terminating the medical authorization for K.W. she had signed. On June 20, 2012, Felder traveled to Boston and again told Ponder that she was revoking Ponder's authorization for medical care. Felder alleged that she did not know that K.W.'s father, Wetzel, had by this time filed an ex parte petition as to K.W. in the Guardianship Authority of the City of Lucerne. The Guardianship Authority may take appropriate measures to protect a child's welfare. See id. arts. 307, 315a.

On June 21, 2012, the Swiss Authority ex parte issued a precautionary order to Felder saying that "[a]t present, the existing endangerment of your daughter can only be avoided by withdrawing your right to determine the place of residence of [K.W.] or concretely the parental custody right."The order prohibited Felder from removing K.W. from the Hospital clinic and said she would be given a full hearing later. On June 25, 2012, Ponder filed a motion to be appointed as K.W.'s temporary guardian with the Essex Division of the Probate and Family Court of the Commonwealth of Massachusetts. Ponder's motion was made with the consent of K.W.'s non-custodial biological father, Patrick Wetzel. Felder did not appear. The state Family Court acted based on Ponder's representations. On June 25, 2012, the state Family Court appointed Ponder as K.W.'s guardian until September 24, 2012, a date that had since been extended to October 26, 2012. On July 10, 2012, Felder filed her petition under the Hague Convention in federal district court. Respondents Ponder and Wetzel, in addition to seeking the dismissal of Felder's petition, raised two Article 13 defenses under the Convention: that K.W.'s return to Switzerland would present a grave risk of harm to her, and that K.W. was of sufficient age and maturity that her objections to being returned to Switzerland should be heeded. Felder had by this time also sought recourse from the Swiss Guardianship Authority. On July 11, 2012, the Swiss Authority issued a "Decree" subtitled "Repeal of precautionary order of June 21, 2012," in which it observed that by "letter dated June 27, 2012, the biological mother ... requested reconsideration of the precautionary decision of June 21, 2012 and its complete repeal." The decree did in fact repeal the
precautionary order, with an explanation. On July 11, 2012, Felder filed an "Emergency Motion by Mother Claudia Felder to Vacate Temporary Guardianship" in the Massachusetts Family Court. Apparently, K.W. had been discharged from the Hospital and was staying with Ponder. At the close of the hearing, the Family Court "enter[ed] a finding, that the most recent order from the Swiss courts [i.e., the June 21, 2012 precautionary injunction], quote, withdraws mother's custody rights" and stated that "it is not clear to me ... that it is-it had been reinstated."Explaining that "I have to do what's in [K.W.'s] best interest and right now, I need to preserve the status quo," the court, in a handwritten order, denied Felder's emergency petition "pending the hearing in Federal Court." On July 2, 2012, Felder had also filed a court complaint in Switzerland seeking to reverse the Guardianship Authority's June 21, 2012 precautionary order. The July 11, 2012 decree was issued in the interim. On July 12, 2012 the District Court of Lucerne ruled on Felder's petition, concluding that "[w]ith the [Authority's] repeal of the precautionary ruling handed down June 21, 2012, the revocation of the complainant's parental custody ordered by the custodianship authorities of Lucerne becomes obsolete. The complainant no longer has any legally protected interests in continuing the proceedings before the Lucerne District Court."

On July 20, 2012, the federal court conducted oral argument on Wetzel's motion to dismiss Felder's petition under the Convention but did not take evidence. On July 30, 2012, the federal district court dismissed Felder's petition. Felder, 2012 WL 3128570, at *1. The district court concluded that K.W.'s state of habitual residence was Switzerland. It looked to Swiss law and the orders of the Swiss authorities to determine that "as of June 21st, the Guardianship Authority took the action that it was empowered to take and revoked Felder's parental custody," and that "the Guardianship Authority's subsequent rulings did not unequivocally reinstate her custody rights," The district court reasoned that "the one authority, the Guardianship Authority, that has the power to determine custody rights, did not decline to take further action, but instead deferred to the actions of the Probate and Family Court in the United States." The court concluded that "Felder has failed to show, by a preponderance of the evidence, the wrongful retention of K.W. in the United States."

The First Circuit reversed. It observed that the district court's reasoning in dismissing Felder's petition was based on its reading of the various orders of the Swiss authorities and court. It concluded that these orders were not designed to nor did they terminate the mother's rights. It analyzed each order and reached the conclusion that there was an attempt to do no more than cope with an emergency situation as to K.W., which the Guardianship Authority concluded required prompt action and which was better not taken from abroad, but immediately addressed by courts, doctors, and others concerned on the scene. The first Swiss Authority order, the June 21, 2012 order, was, as it stated, only a "precautionary injunction"; it was ex parte and in the nature of a temporary emergency order. The June 25, 2012 Guardianship Authority letter to the Hospital explained its June 21, 2012 order as being based on "the [present] urgent need for action" and a fear the American authorities would otherwise not act as needed in the best interests of the child. In light of the emergency nature of the measures taken, it would be incorrect to conclude that these decisions decisively and permanently altered Felder's custody rights over K.W. under Swiss law. They did not strip Felder of her right under the Convention to seek K.W.'s return and to have custody over her child decided by K.W .'s state of habitual residence. It was clear from the Swiss Guardianship Authority's July 11, 2012 decree that the prior order, the Authority's June 21, 2012 temporary revocation of some of Felder's custody rights, had itself been revoked. The decree expressly stated that: * Felder is "entitled to custody" of K.W.; both Felder and K .W. reside in Switzerland. This reading was strongly buttressed by the authoritative Swiss District Court's July 12, 2012 order dismissing Felder's complaint that the June 21, 2012 precautionary order should be reversed. The Lucerne District Court's July 12, 2012 order stated that "the revocation of the complainant's parental custody ordered by the custodianship authorities of Lucerne [has] become[ ] obsolete. The complainant no longer has any legally protected interests in continuing the proceedings before the Lucerne District Court." These later orders established that as of July 12, 2012, any temporary revocation by the Swiss authorities of some of Felder's custody rights over K.W. had itself been revoked. Felder had custody rights under the Convention.

Two defenses were raised under Article 13 of the Convention: (1) that K.W .'s return to Switzerland would present a grave risk of harm to her, and (2) that K.W. was of sufficient age and maturity (she was almost fifteen) that her objections to being returned to Switzerland had to be heeded. The First Circuit directed that these exceptions to return, must be heard on remand. It reversed the dismissal of Felder's petition under the Convention, reinstated the case, and remanded for further proceedings consistent with its opinion.