A Child is Missing: The International Child Abduction Blog

District Court Cases in Districts other than New York (continued to 12.31.25)

2026-01-06T07:55:00.000-05:00

Elkhaiat v Mawashi, 2025 WL 3144177 (United States District Court, D. Arizona, 2025).[Canada][Motion for Attorney Fees and Costs denied][clearly inappropriate where Respondent prevailed in showing that ameliorative measures were needed to ensure L.E.’s safety and large fee award could interfere with Respondent’s ability to care for L.E. ]

White v Stover, 2025 WL 3188739 (United States District Court, M.D. Tennessee, 2025)[Mexico][Petition granted][Habitual residence][Defenses of Consent, Age & Maturity and Grave risk of harm not established]

Dumitrascu v Dumitrascu, 2025 WL 3191119, United States District Court, D. Colorado, 2025)[Romania] [Complaint dismissed for lack of jurisdiction].

Llorente v El Benaye, 794 F.Supp.3d 1308 (United States District Court, S.D. Florida, 2025).
[Spain] [Petition denied] [Wrongful removal established] [Former wife established defenses of grave risk of harm from ex-husband if they were returned to Spain; and defense that children were well-settled in their new environment in United States.

Edelstein v Nelson, 2025 WL 3489787 (United States District Court, D. Nevada, 2025)
[R & R recommending that Nelson’s request for attorneys’ fees be denied because Edelstein brought his petition in bad faith.

NA v NA, 2025 WL 3493561 (United States District Court, C.D. California, 2025)
[South Korea] [Petitioner’s motion for remand of the action to the state court denied].

Jaimes v Tavera, (United States District Court, S.D. Florida, 2025)
[Colombia] [Petition granted] [Habitual residence][wrongful retention] [ Respondent did not establish the consent exception, the Well-Settled Child exception, the grave risk of harm defense, or the mature child defense ( in that he had not reached the level of maturity such that his objections should be considered)]

Abrego v Garfias, 2024 WL 6956468 (United States District Court, N.D. Georgia, 2024)[Mexico] [Petition granted] [Habitual residence][Respondent did not establish that child faces a grave risk of harm or an intolerable situation; and did not prove the mature child exception; did not prove that child was sufficiently mature]

Jardim v Paez, 2025 WL 3701303 (United States District Court, S.D. Florida, 2025).[Venezuela] [Petition granted] [Respondent conceded Petitioner established a prima facie case] [Defenses of consent and/or acquiescence, children are well-settled in their new environment, and the “mature child exception” not established]

Siras v Diallo, 2025 WL 3719316 (United States District Court, M.D. Pennsylvania, 2025).[France] [Petition granted] [Habitual residence]

Fuentes-Lopez v Garcia, 2025 WL 3563287 (United States District Court, D. Nevada, 2025

[Mexico]Petition denied] [Habitual residence] [Wrongful removal][Court declined to exercise its discretion to return the minor child to Mexico.]

Colistro v Guerra, 2025 WL 3050006 (United States District Court, E.D. Virginia, 2025)[Mexico][Habitual residence][Grave risk of harm defense established based upon Petitioner’s drug abuse and associated behavior]

Colistro v Guerra, 2025 WL 3050003 (United States District Court, E.D. Virginia, 2025)[Mexico) [Plaintiffs' motion for summary judgment denied]

Leon v Valente, 2025 WL 3035754 (United States District Court, E.D. North Carolina, 2025)

[Mexico][Motion for partial summary judgment granted] [Prima facie case established]

Aubert v Poast, 2025 WL 3043513 (United States District Court, W.D. Wisconsin, 2025)[Norway] [Petition denied] [Motion for continuation of provisional remedies (visitation) pending appeal denied] [Filing notice of appeal divests the district court of its control over those aspects of the case involved in the appeal.]

Jetel v Jetel, 2025 WL 3043527 (United States District Court, N.D. Illinois, 2025)[United Kingdom]

[ Petition denied] [Habitual residence] [Child not habitually residing in the UK at the time of removal]

Medrano v Garcia, 2025 WL 3041892 (United States District Court, M.D. Florida, 2025)[Petition dismissed without prejudice for lack of jurisdiction based on inability “to locate and serve” respondent in the Middle District of Florida]

Dhooge v Pronker, 2025 WL 3009344 (United States District Court, E.D. Arkansas,2025)[Netherlands][Petition granted] [Attorney’s fees of $ 30,375.00 and costsof $ 1,613.80 awarded under Lodestar method]

Abouelmagd, v. Semeniuk, 2025 WL 3042413 (United States District Court, E.D. New York, 2025)Canada] [Habitual residence][Petition granted]

2025-11-01T10:16:00.002-04:00

In Abouelmagd, v. Semeniuk, 2025 WL 3042413 (United States District Court, E.D. New York, 2025) Amr Abdelrahman Abouelmagd (“Petitioner”), petitioned the Court for the return of his three children, Y.A., M.A., and A.A., to Canada Petitioner asserted that the Children had beenwrongfully retained in the United States by their mother, respondent Tetiana Semeniuk (“Respondent”), a citizen of Ukraine, who currently resided in New York. The district Court found that: (1) the Children were habitual residents of Canada and had been retained in the United States; (2) the retention was in breach of Petitioner’s custody rights; and (3) Petitioner was exercising his rights at the time of the retention. The Court further found that Respondent failed to prove by a preponderance of the evidence the affirmative defenses that the Children were well settled or that Petitioner consented to the retention. Petitioner also failed to show by clear and convincing evidence the affirmative defenses that return to Canada would put the Children at grave risk or would be barred by the United States’ fundamental principles relating to the protection of human rights and fundamental freedoms. Accordingly, the petition for return of the Children to Canada was granted.

Hala v Anteby, 2025 WL 2987448, (E.D. New York, 2025)[Israel][Service of process][Substituted service by email]

2025-10-29T14:07:00.003-04:00

In Hala v Anteby, 2025 WL 2987448, (E.D. New York, 2025) Uriel Hala (“Petitioner”) brought an action against Esther Bracha Anteby (“Respondent”) pursuant to the Hague Convention seeking the immediate return of a child, LRA, to Israel.

Petitioner and Respondent were the parents of LRA, who was born on February 21, 2021, in Mishmar Ha’Yarden, Israel. Petitioner was an Israeli citizen. Respondent was a dual American and Israeli citizen who resided in Israel from 2015 until July 2023. Petitioner and Respondent were never married but lived together from 2020 until separating in December 2022. LRA was born at the parties’ home in Mishmar Ha’Yarden, with the assistance of a midwife, on February 21, 2021. Petitioner and Respondent did not begin the process of legally registering LRA with the Ministry of Interior until June 2022. As part of this process, Petitioner and Respondent submitted DNA samples, along with a DNA sample from LRA, to prove paternity. On June 15, 2022, Petitioner and Respondent also executed a mutual affidavit with the Peace Court in Tzfat, Israel, attesting to the at-home birth of LRA. In a court proceeding before a Family Court in Hadera, Israel, Respondent testified that Petitioner was LRA’s father. Following this proceeding, Respondent was legally registered as LRA’s mother by the Family Court, but Petitioner was not registered as LRA’s father at the time.

After Petitioner and Respondent separated in December 2022, they made an informal agreement to exercise joint custody over LRA and set a schedule whereby LRA would spend an equal number of days with each parent. Petitioner remained fully involved in LRA’s life and care—including arranging and paying for her education, taking her to spend time with his extended family, and paying for her support while she was with Respondent. On July 27, 2023, Petitioner brought LRA to Respondent’s apartment in accordance with the agreed upon schedule. On July 29, 2023, Respondent informed Petitioner that she was traveling on a short vacation to Ein-Hod, Israel and that he would not be able to pick up LRA from day care on July 30, 2023, as previously arranged, but that he could pick up LRA upon her return. Respondent then stopped communicating with Petitioner. On August 1, 2023, Respondent’s mother, Batia Anteby, informed Petitioner that Respondent brought LRA to Brooklyn, New York and would not return to Israel. Since then, Petitioner has only been in contact with Respondent’s mother, who resides at 1570 East 10th Street, Brooklyn, New York. Respondent’s mother sent Petitioner photos and videos of LRA, which appeared to be taken outside and inside of the home at that address. However, Respondent’s mother has not confirmed the residence of either LRA or Respondent.

On August 4, 2023, Petitioner filed an application seeking the return of LRA with the Israeli Central Authority (“ICA”). However, Petitioner’s application was delayed because Petitioner was not registered as LRA’s father with the Ministry of Interior. On February 15, 2024, the Family Court in Hadera certified, based on the previously submitted DNA samples, that Petitioner is LRA’s biological father. Months later, the ICA confirmed that Petitioner is LRA’s father. Petitioner then commenced this action on May 20, 2024, filing a Complaint, Verified Petition, and Motion for a Temporary Restraining Order, among other documents.

After being unable to locate Respondent, Petitioner, among other things, moved for leave for substituted service upon Respondent, pursuant to Rule 4(e)(1). The Court observed that Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that “an individual ... may be served in a judicial district of the United States by ... following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. Proc. 4(e)(1). In New York State, service may be effected “in such manner as the court, upon motion without notice directs, if service is impracticable under paragraphs one [personal service], two [leave and mail service][,] and four [nail and mail service].” S.E.C. v. HGI, Inc., No. 99 CIV. 3866 (DLC), 1999 WL 1021087, at *1 (S.D.N.Y. Nov. 8, 1999) (citing N.Y. C.P.L.R. § 308(5)). Although N.Y. C.P.L.R. § 308(5) requires a demonstration of impracticability as to other means of service, it does not require proof of due diligence or of actual prior attempts to serve a party under the other provisions of the statute. Id. (first citing Franklin v. Winard, 592 N.Y.S.2d 726, 727 (1st Dep’t 1993).Any form of service must comport with due process by being “reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” SEC v. Tome, 833 F.2d 1086, 1093 (2d Cir.1987) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Of relevance here, service by email, without more, comports with the requirements of due process “where a [petitioner] demonstrates that the email is likely to reach the [respondent].” Vega v. Hastens Beds, Inc., 110 Fed. R. Serv. 3d 1372, 339 F.R.D. 210, 217 (S.D.N.Y. 2021)).

The district court found that Petitioner demonstrated that email is likely to reach the respondent. Indeed, Petitioner contended that Respondent acknowledged receipt of Petitioner’s papers via email. Specifically, Petitioner argued that, on separate occasions, Respondent, using the email address of ebanteby@gmail.com, emailed Petitioner’s counsel regarding mediation and acknowledging receipt of Petitioner’s papers. As such, service by email was appropriate, and Petitioner was granted leave to effect substituted service, via email, upon Respondent.

District Court Cases in Districts other than New York Published in 2025 (Continued, see infra ) updated10.19.25

2025-06-14T09:49:00.004-04:00

Khan v Seemab, 2025 WL 2582897 (United States District Court, E.D. Pennsylvania, 2025)

[Qatar] [Habitual residence] Petition dismissed for lack of jurisdiction] [Qatar not a signatory to Convention]

Tsuruta v Tsuruta, 2025 WL 2912271 (United States District Court, E.D. Missouri, 2025)

[Japan] [Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure denied].

Higuera v Jiminez, 2023 WL 12156566 (United States District Court, N.D. Georgia, 2023)

[Venezuela] [Petition granted] [habitual residence] [Grave risk of harm not established]

Deravil v. Jean ,2025 WL 2906673 (United States District Court, S.D. Ohio, 2025)

[Martinique] [Petition granted] [motion to restore a preliminary injunction after the entry of final judgment while appealing that final judgment denied]

Deravil v. Jean, 2025 WL 2904884 (United States District Court, S.D. Ohio, 2025)

[Martinique] [Deravils Motion in limine to exclude these experts’ reports and testimony denied and for summary judgment denied. Jean-Louises motion for Summary Judgment Granted; Deravils’ Petition for A.D.’s return to Martinique for the pendency of any associated custody claims or determinations Denied.]

Deravil, v. Jean 2025 WL 2903662 (United States District Court, S.D. Ohio, 2025)

[Martinique] [ Motion requesting Court to conduct an in camera interview granted]

Boa-Bonsu v. Owusu, 2025 WL 2896377 (United States District Court, S.D. Ohio, 2025)

[Finland] [Petition denied] [Habitual residence] [Wishes of the child defense established]

Karlevid v Slotto, 2025 WL 2753549 (United States District Court, D. Massachusetts, 2025)

[Sweden][Petition granted][Habitual residence][Grave risk of harm defense not established][even if such a finding were appropriate, the Court would not exercise its discretion to deny removal on that basis].

Peled v Peled, 2025 WL 2711374 (United States District Court, S.D. Ohio, 2025)

[Israel] [Motion to dismiss for lack of subject matter jurisdiction granted] [Children were not located in Ohio, or anywhere in the United States, when Plaintiff initiated this action.]

Gaston v Gutierrez, 2025 WL 2694981 (United States District Court, M.D. Florida, 2025)

[Peru][Motion for Attorneys fees and expenses] [Recommended award attorney’s fees of $6,867.00, court costs of $405.00, and other necessary expenses of $930.58.}

Aubert v Poast, 2025 WL 2671697 (United States District Court, W.D. Wisconsin, 2025)

[Norway] [Petition denied] [Grave risk of Harm Defense established].

DaSilva v DaSilva, 2025 WL 2607879 (United States District Court, D. Massachusetts, 2025)

[Brazil] [After reversal of return order by First Circuit, upon remand to determine whether Child. should nevertheless be returned to Brazil.(Rodrigues v. Silveira, 141 F.4th 355, 366 (1st Cir. 2025). the Court declined to exercise its discretion to return and denied the petition.]

Khan v Seemab, 2025 WL 2582897 (United States District Court, E.D. Pennsylvania, 2025)

[Qatar] [Habitual residence] Petition dismissed for lack of jurisdiction] [Qatar not a signatory to Convention]

Arabi v Kerroum, 2025 WL 2267991 (United States District Court, N.D. Georgia, 2025)

[Morocco] [Motion for Attorney Fees and Costs and Expenses granted in part.][ Petitioner awarded $26,610.10 in fees and expenses].

Boa-Bonsu, v. Owusu, 2025 WL 2305880 (United States District Court, S.D. Ohio, ,2025)

[Petitioners) motion to strike the Defendant/Respondent Deborah Owusu’s fifth affirmative defense. which asserts: “Petitioner is estopped from asserting claims under the Hague Convention due to prior conduct that misled Respondent into believing the removal was permitted.” The Hague Convention provides for limited defenses, and courts hold that estoppel is not among them. Petitioner’s Motion to Strike was granted]

Dhooge v Pronker, 2025 WL 2375385 (United States District Court, E.D. Arkansas, 2025)
[Netherlands] [Petition granted] [Petitioner established that J.D. was wrongfully removed ]. [Respondent failed to establish one of the defenses] [The Court recognized the July 15, 2025 custody determination of the Dutch court,]

Dumitrascu v Dumitrascu, 2025 WL 2223027 (United States District Court, D. Colorado, 2025).

[Romania} [defendant’s motion to transfer venue; motion to transfer the case to another judge; motions seeking relief under Federal rules; motions for criminal and civil contempt; and motion for a preliminary injunction denied].

Goderth v Yandall- Goderth, 2025 WL 1866307 (United States District Court, N.D. Illinois, 2025)

[Germany] [Petition denied] [Habitual residence established] [Children are well-settled in the U.S.]

Giguere v Tardif, 2025 WL 2452168 (United States District Court, D. Massachusetts, 2025).

[Canada] [Petition granted] [Children’s habitual residence as of August 28, 2024, was Canada] [Consent prior to the time of retention was no defense][ Petitioner’s participation in Massachusetts divorce action did not constitute subsequent acquiescence in the retention of the Children]

Horcajo v Benaye, 2025 WL 2171598(United States District Court, S.D. Florida, 2025)
[Spain] [Petition denied][Removal was wrongful because Spain was the habitual residence of the Children prior to their removal; emoval was in breach of custody rights under Spanish law; and Petitioner was exercising his rights as defined by the Hague Convention. Respondent, proved by clear and convincing evidence that the Children would face a grave risk of danger if returned to Spain because of Llorente’s domestic violence and associational criminal risk, and she had proven by a preponderance of the evidence that the Children were well-settled in their new environment.]

Pits v Gonzalez, 2025 WL 2434240, United States District Court, N.D. California,2025.
[Germany] [Motions for summary judgment ][ Motions were denied as to the core issue of whether the children were habitual residents of Germany at the time of their removal and return to the United States. Petitioner’s Motion was granted with respect to summary adjudication that if the children were habitual residents of Germany, Petitioner had and was exercising rights of custody under German law immediately prior to the children’s removal.]

Schwaneberg, v. Lopez, 2025 WL 2085531 (United States District Court, W.D. Virginia, 2025] [South Korea][Motion for Attorney Fees and Costs after prevailing on petition.] The court awarded $73,215.00 in attorney’s fees. Petitioner failed to show that $8,558.77 request for local counsel attorney fees and that the $4,000.00 request for Korean counsel attorney fees was reasonable. As a result, the court discounted the request by 50%, or $2,000.00 and $4,279.39 because not enough information was supplied by petitioner to support the award). The court awarded $12,618.83 in costs.]

Harvey v Means, 2025 WL 2443151 (United States District Court, W.D. Washington, 2025). [Scotland] [Motion for appellate attorneys’ fees.] [ Harvey prevailed in the district court and on appeal, and was awarded $50,000 in appellate attorneys’ fees.]

Torres v Pastor, 2025 WL 2425278 (United States District Court, W.D. Louisiana, 2025)[Brazil] [Motion for Necessary Fees and Expenses] 9Petitioner’s attorney’s fees and costs of $33,865.12 are reasonable. Considering the financial status of both parties and the facts in this case, Respondent’s obligation was reduced to 90% of Petitioner’s attorney’s fees and costs, or $30,478.61]

Gomez v Gonzalez, 2025 WL 1666243, W.D. Washington, 2025]
[Mexico] [Petition granted] [Attorney’s fees] [granted in part] [80% reduction proportionate to Respondent’s inability to pay]

Lee v Curcio, 2025 WL 1549318 (S.D. Florida, 2025)
[Brazil] [Habitual residence] [Petition denied]

Mendez v Brandon, 2025 WL 1532583 (W.D. Kentucky,2025)
[Japan] [State court already ruled on wrongful retention claim] [ Motion to dismiss granted] [ Younger and Colorado River abstention]

Gomez v. Ramirez, 2025 WL 1415905 (E.D. Pennsylvania, 2025).

[Guatemala] [Petition denied] [habitual residence] [well-settled affirmative defense applies]

Edelstein V. Nelson, 2025 WL 1419962 (D. Nevada, 2025).
[Argentina] [Habitual residence] [Report & Recommendation to deny petition adopted]

Edelstein v Nelson, 2025 WL 1610564 (D. Nevada, 2025)[Argentina] [Habitual residence not established] [consent and acquiescence ][Recommendation that Petition be denied]

Muehlbauer V. Muehlbauer, 2025 WL 1392571, E.D. Missouri, 2025)[Switzerland][ Motion to Exclude expert Testimony under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Federal Rules of Evidence 702, 401, and 403. Rule 702 denied.

Ciampa v Nichols, 2025 WL 1358488 (C.D. California, 2025)

[Italy] [Motion for Attorney Fees and Costs granted as requested, $144,768 in attorney’s fees and costs and $15,328 in personal expenses. Counsel, charged a rate of $650 per hour]

Paplaczyk v Paplaczyk,2025 WL 1296177 (S.D. Georgia, 2025)
[Germany] [Petition for Enforcement of German Order][sua sponte dismissal for lack of federal jurisdiction where children not located in the United States]

Giguere v. Tardif, 2025 WL 1293364 ( D. Massachusetts, 2025)

[Canada][Motion to dismiss for lack of subject matter jurisdiction and failure to state a claim denied]

Blasi v.Dunnagan, 2025 WL 1262062 (E.D. North Carolina, 2025).
[Thailand] [Motion for abstention under Younger v. Harris, 401 U.S. 37 (1971) denied]

Armand v Armand, 2025 WL 1249420 (E.D. Missouri, 2025)
[France] [Petition granted] [habitual residence] [ Grave risk of harm defense not established]

Kelly v Turner, 2025 WL 1202043 (D. Oregon, 2025)

[Mexico] [Petition denied] [Defense of Grave risk of physical or psychological harm based on spousal abuse established]

Gamboa v Williams, 2025 WL 1195567 ( S.D. Texas, 2025)

[Colombia][Petition granted] [Attorneys fees of $67,647.75 and costs and fees of $5,835.71 awarded with post-judgment interest]

Loncarevic v Loncarevic, 2025 WL 1167564 (S.D. Texas, 2025)
[Germany] Petition granted] [Attorneys fees of $58,497.14 awarded with post-judgment interest]

Alvarez v Marin, 2025 WL 1091940 (C.D. California (2025)
[Mexico] [Petition granted] [judgment on default]

Aubert v Poast, 2025 WL 1071672 (W.D. Wisconsin, 2025).
[Norway] Motion to dismiss denied] [Motion for video and in-person visitation during the pendency of the case granted]

Ballesteros v Ruiz, 2025 WL 1068855 ( N.D. Illinois, 2025)
[Canada][Motion to enforce oral settlement agreement granted]

Parra v Camargo, 2025 WL 992581, United States District Court, N.D. Texas (2025)
[Chile][Petition granted][Habitual residence][Grave risk of harm defense not established]

Gomez v Gonzalez, 2025 WL 835013 (United States District Court, W.D. Washington, 2025).[Mexico] [Petition granted] [Habitual residence][ Grave risk of harm defense not established]

Basset v. Dana, 2025 WL 742759 (United States District Court, S.D. Florida.,2025)

[Israel] [Petition granted] [ Habitual residence] [Respondent failed to establish consent or acquiescence, grave risk of harm, fundamental principles and mature child defenses]

Elkhaiat v Mawashi, 2025 WL 711949 (United States District Court, D. Arizona, 2025).[Canada][Habitual residence][Consent defense not established] [Grave risk defense not established][ ameliorative mitigation measures appropriate]

Yuriiovych v Hryhorivna, 2025 WL 660634, United States District Court, D. Montana, 2025)

[Ukraine][Attorneys Fees and Costs] [attorney fees of $82,235.00 and costs of $6,601.84 awarded]

Guevara, v. Castro, 2025 WL 1553209 (Fifth Circuit.,2025)[Mexico] {Habitual residence] [Petition granted] [Well-Settled Defense not established]

2025-06-07T10:09:00.006-04:00

In Guevara, v. Castro, 2025 WL 1553209 (Fifth Circuit.,2025) A.F. was born May 3, 2018 to Jose Leonardo Brito Guevara and Samantha Estefania Francisco Castro. Castro and Brito lived together with A.F. in the home of Brito’s mother in Venezuela until they separated in July 2019. Following their separation, Brito was granted custody rights over A.F. In August 2021, Brito relocated to Spain for a better-paying job. While in Spain, Brito continued to support A.F. financially, maintained regular contact through video calls and voice messages, and stayed in close contact with A.F.’s grandmother. The district court found that Brito was exercising his custody rights throughout his time in Spain. Until late 2021, A.F. had lived exclusively in Venezuela ^.. In November 2021, Castro removed A.F. from Venezuela without Brito’s consent and unlawfully entered the United States. After presenting herself and A.F. to U.S. Border Patrol in San Luis, Arizona, Castro relocated to Lewisville, Texas. There, she lived with Castro’s boyfriend, Otton Rodriguez, for eleven months. In October 2022, Castro, A.F., and Rodriguez moved together to Dallas. Brito remained in contact with A.F. during this time and attempted to visit her in the United States, though his visa application was denied.

The district court found that Castro “has been gainfully employed since arriving in the United States and provided for A.F.” Since arriving in the United States, Castro worked for four different companies, averaging 40–45 hours a week, with hourly wages ranging from $12 to $16. Castro and A.F. lacked permanent residence status in the United States. U.S. Citizenship and Immigration Services issued them employment authorization documentation, but their asylum applications remained pending. Immediately upon learning that Castro had taken A.F. to the United States, Brito contacted the family attorney, Venezuelan authorities, and both the United States and Venezuelan embassies in Spain. He authorized his mother to file an application under the Hague Convention seeking A.F.’s return. Venezuelan authorities received the application on January 20, 2022—just under two months after Castro removed A.F. to the United States. After efforts to reach an agreement with Castro failed, Brito filed a petition in the Eastern District of Texas in April 2023. In June 2023, Castro—through counsel—accepted service and disclosed her address, which was located within the Northern District of Texas. By agreement of the parties, the action was transferred to the Northern District on August 1, 2023. The Northern District did not hold a bench trial until March 2024—eight months after the transfer. Six weeks later, the court denied Brito’s petition, concluding that although he had established a prima facie case for A.F.’s return, Castro had sufficiently shown that A.F. was well-settled in Dallas and that remaining there was in her best interest. The Fifth Circuit reversed and remanded with instructions that the district court enter an order that A.F. be returned to Venezuela.

The Court observed that the Hague Convention mandates the return of “a child wrongfully removed from her country of habitual residence ... upon petition.” The Convention’s default rule is that the child should be returned to her country of habitual residence. But the Convention provides ‘several narrow affirmative defenses to wrongful removal.’ This case concerned the “well-settled” exception found in Article 12. Article 12 provides that, “when a court receives a petition for return within one year after the child’s wrongful removal, the court ‘shall order the return of the child forthwith.” But “where the proceedings have been commenced after the expiration of the period of one year,” the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” To assess whether the well-settled defense applies, the Court considers seven factors:(1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) the respondent’s employment and financial stability; and (7) the immigration status of the respondent and child. The Court examines the district court’s factual findings for clear error, and we review de novo the legal question whether, in light of holistic balance of the seven nondispositive factors, the evidence supports the district court’s conclusion.

The parties did not dispute the district court’s finding that Brito established a prima facie case for A.F.’s return. The sole question on appeal was whether the well-settled defense barred that return. The Court concluded that the district court erred in both its legal framing and application of the well-settled exception. Balancing the relevant factors de novo, it was not persuaded that A.F. has formed such deep or enduring ties to her new environment that returning to her home in Venezuela would contravene her best interests.

The first factor was A.F.’s age. She was seven years old—and was five at the time of the bench trial. The district court acknowledged, citing precedent in Hernandez, that a child of this age is “a very young child not able to form the same level of attachments and connections to a new environment as an older child.” Yet the district court described this factor as “lukewarm”—a characterization unsupported by the record. A.F.’s young age meant it will take more time for her to become “so settled” in the United States that her best interests lie in remaining here rather than returning home to Venezuela. At age seven, A.F. was not yet capable of forming the kind of enduring attachments that the Convention deems sufficient to override its default return remedy.

The second factor considers the stability and duration of A.F.’s residence in the United States. The district court found that over the past three years, Castro and A.F. lived in two separate residences in the United States. It characterized this arrangement as stable and weighed the factor in favor of Castro. That conclusion was error. That A.F. has already moved multiple times in her brief time here undermined any claim of residential stability. So too does the fact that Castro and A.F. currently resided in the home of Castro’s boyfriend. Should that relationship falter, Castro and A.F. would be forced to relocate once more. Castro conceded that if the relationship were to end, she and A.F. would need to downgrade to a cheaper apartment, as they relied—at least in part—on her boyfriend’s income. Even if A.F.’s present living situation appeared stable, its long-term viability was far from assured.

The third factor examines whether the child attends school consistently. The district court rightly found that A.F. was enrolled in kindergarten and performing well. But that fact must be viewed in context and alongside the other factors. At her young age, A.F. had ample time and opportunity to integrate into a new school community in Venezuela. Moreover, A.F.’s school environment in United States was not especially secure, given the uncertainty of her immigration status, the nature and impermanence of Castro’s transient employment, and their reliance on Castro’s boyfriend for housing. These circumstances suggested a real possibility of future moves, which could disrupt A.F.’s schooling and undercut any sense of educational continuity.

The fourth factor considers whether the child has formed meaningful relationships with friends and family in her new environment. A.F. had at least six close relatives in the United States, as well as several friends she saw regularly. Still, most of A.F.’s extended family—including Castro’s parents, two brothers, a cousin, an aunt and uncle, and Brito’s mother, siblings, and additional relatives—remained in Venezuela. Most notably, A.F. could not see her father in the United States. Brito attempted to visit her but was denied a visa. While the inquiry is not a numbers game, the fact that A.F. had a “large extended family” in Venezuela remained significant—particularly because her relationships in the United States were entirely derivative of her mother’s. In addition, Castro’s boyfriend lacked lawful permanent resident status, and none of A.F.’s relatives in the United States were U.S. citizens. The unsettled immigration status of A.F.’s family here casted doubt on durability of those relationships and weighed against a finding that they are well-settled.

The fifth factor examines A.F’s participation in community activities. The district court found that A.F. regularly attended church, visited a primary care physician, goes on family vacations, has playdates with friends, uses community playgrounds, goes swimming, and attends birthday parties. The district court deemed this evidence “overwhelming” support for the well-settled defense. Though it certainly weighed in Castro’s favor, this factor on its own did not demonstrate that A.F. is “so settled” in the United States that returning to Venezuela would be contrary to her best interests—especially since she could engage in many of these same activities there.

The sixth factor considers Castro’s economic and employment stability. The district court found that Castro “has been gainfully employed since arriving in the United States and provides for A.F.” But while the court acknowledged that Castro had changed jobs four times since her arrival, it failed to give appropriate weight to other facts that cast doubt on the stability of her employment. For instance, the court found that Castro was unemployed for at least two months between jobs. Nor did the record show that any of her jobs were permanent positions offering reliable income or benefits. The court further acknowledged that Castro shared both a car and an apartment with her boyfriend but overlooked the precariousness of that arrangement—namely, that if the relationship ended, Castro and A.F. would have to relocate. The end of the relationship would also leave them without transportation, impairing A.F.’s ability to attend school and participate in community life. While Castro was currently meeting A.F.’s basic needs, her financial circumstances were not “so settled” that it would be against A.F.’s best interest to return to her life in Venezuela.

The seventh and final factor concerns immigration status. The district court acknowledged that neither Castro nor A.F. has lawful permanent residence status in the United States and that both had pending asylum applications. But the court deemed this factor merely “lukewarm.” That conclusion was error. Castro presented no evidence suggesting their asylum claims were likely to succeed. The court found no evidence that A.F. would face a “grave risk of harm” if returned to Venezuela—a finding that undercut any suggestion that her asylum claim will succeed. “immigration status is not dispositive” and lacking lawful permanent resident status “does not necessarily prevent a child from developing significant connections in a new environment.” Still, “immigration status should not be analyzed in the abstract,” and the Convention requires “an individualized, fact-specific inquiry.” The district court erred by evaluating immigration status in isolation, rather than assessing how it interacts with and undermines the other well-settled factors. Here, the uncertainty surrounding Castro’s and A.F.’s immigration status permeates every aspect of their life in the United States, rendering it fundamentally unstable. This factor weighs heavily against finding that A.F. is well-settled.

Overall, balancing the factors de novo, it disagreed with the district court’s assessment that factors one and seven are merely “lukewarm,” and that the remaining factors “overwhelmingly” supported a “well-settled” finding. The court failed to give due weight to A.F.’s young age—which favored her ability to readjust to life in Venezuela—and to her uncertain immigration status, which eroded any stability she may have developed in the United States. The district court also gave more weight to the remaining factors than supported by the record. The factors did not support the conclusion that A.F. was so deeply rooted in the United States that returning her to Venezuela would contravene her best interests.

Harvey v Means, Not Reported in Fed. Rptr., 2025 WL 1189565, (Ninth Circuit, 2025) [Scotland][Petition granted][Affirmed]

2025-04-26T08:57:00.001-04:00

In Harvey v Means, Not Reported in Fed. Rptr., 2025 WL 1189565, (Ninth Circuit, 2025) Garann Rose Means appealed a district court order granting Dale Harvey’s Hague petition for the return of their two children to Scotland. The Ninth Circuit affirmed.

The Ninth Circuit rejected means argument that the district court abused its discretion by failing to order a psychological examination of the children or by failing to grant her another continuance to obtain one. “It held that a district court does not abuse its discretion by denying a psychological exam when a movant fails to make “specific, corroborated allegations of domestic violence and child abuse.” Means failed to make a proffer to the district court that would justify ordering a psychological evaluation or, alternatively, granting a continuance for Means to obtain one. Means accused Harvey of sexually abusing their child, Z, which, if substantiated, would make the children’s return to Harvey in Scotland an “intolerable situation” under the Convention.. Means also alleged that Harvey abused her, which might also pose a grave risk to the children if true. See Colchester, 16 F.4th at 718. But Means acknowledged that the Scottish authorities investigated her claims and found no evidence that Harvey abused Z. And the district court found that Means’s sexual abuse allegations were “less than credible.” Because Means failed to point to specific, corroborated allegations of abuse or domestic violence, it concluded that the district court did not abuse its discretion by refusing to order a psychological evaluation for the children or refusing to grant a continuance for Means to obtain one.

The district court denied Means’s request to interview the children in camera because it concluded that an interview about “such serious allegations” might do “more harm than good[.]” The Ninth Circuit held this was not an abuse of discretion.

Although Means argued that the district court should have appointed an attorney or guardian ad litem to represent the children, she did not state that she moved for such an appointment in the district court. The Ninth Circuit held that Means likely forfeited this issue.

Means argued that the three-hour limit to present her case deprived her of due process. The Ninth Circuit held that Courts must “act expeditiously in proceedings for the return of children” and may “order the return of the child at any time[.]”District courts therefore have “a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention.” The Ninth Circuit held that the district court gave Means the opportunity to submit evidence, cross-examine Harvey’s witnesses, and present her own testimony, even giving her extra time to do so. The district court appropriately balanced the need for expeditious proceedings with the need to afford Means a meaningful opportunity to be heard.

Means asserted that the district court abused its discretion by failing to appoint an attorney to represent her. The Ninth Circuit held that there is no constitutional right to counsel in a civil case. Nevertheless, a district “court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). “The decision to appoint such counsel ... is granted only in exceptional circumstances.” Courts consider three factors when deciding whether exceptional circumstances exist: (1) the individual’s ability to articulate his or her claims pro se, (2) “the complexity of the legal issues involved,” and (3) “the possible merit of [the individual’s] claims.” Byrd v. Maricopa Cnty. Bd. of Supervisors, 845 F.3d 919, 925 (9th Cir. 2017). Even assuming that Means was unable to afford counsel, the district court did not abuse its discretion by not appointing counsel to represent her. Means showed that she understood the fundamental requirements of the Hague Convention by arguing that the children were not habitually resident in Scotland and by raising a grave-risk defense. And, although the case involved the parties’ children, it was otherwise straightforward because Means conceded most of the elements of Harvey’s case. Finally, Means’s grave-risk defense was meritless because her allegations of abuse were not credible.

Morales v. Restrepo, 2025 WL 1070234, (E.D. New York.2025)[Colombia][Petition granted] [Motion for stay pending appeal denied]

2025-04-17T10:31:00.003-04:00

In Morales v. Restrepo, 2025 WL 1070234, (E.D. New York.2025) the respondent moved to stay the Court’s order granting the petition for return of the parties’ child, L.C., to Colombia. Tthe Court denied the Motion but issued an administrative stay until April 14, 2025, to allow respondent to seek a stay from the United States Court of Appeals for the Second Circuit.

Petitioner filed this action against respondent pursuant to the Convention on November 15, 2024, seeking the return of L.C. to Colombia. After a hearing on the Petition, the Court determined that respondent wrongfully retained L.C. in New York on May 16, 2024, in violation of the Convention. Specifically, the Court found that petitioner had established a prima facie case and respondent failed to establish a consent defense. The Court granted the petition, ordered L.C. returned to Colombia, and directed the parties to submit a joint proposed order of return by April 4, 2025. The Clerk of Court entered judgment in favor of petitioner on March 31, 2025. Thereafter, the parties filed a letter indicating that they were unable to agree on the mechanics of L.C.’s return to Colombia: petitioner proposed return by April 13, 2025, so that L.C. can attend school at the close of spring break,¹ whereas respondent proposed L.C. return on June 28, 2025, after the conclusion of his academic year in New York. On April 4, respondent moved the Court for a stay to allow respondent time to appeal the Court’s Order. On April 7, 2025, respondent filed a notice of appeal of the Court’s Order to the United States Court of Appeals for the Second Circuit.

The district court observed that a stay is not “guaranteed” as a matter of right in cases under the Convention, Chafin v. Chafin, 568 U.S. 165, 179 (2013), but instead rests within the Court’s discretion, DiMartile v. Hochul, 80 F.4th 443, 456 (2d Cir. 2023). Courts must consider the traditional stay factors in assessing a stay request: (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. Chafin, 568 U.S. at 179 (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). The “first two of the four factors are the most critical,” and the movant bears the burden to show that a stay is warranted. Tereshchenko v. Karimi, No. 23-cv-02006, 2024 WL 195547, at *2 (S.D.N.Y. Jan. 18, 2024) (citing New York v. U.S. Dep’t. of Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020)). After analyzing the factors the court found that respondent did not establish that the Chafin factors warranted a stay of the Court’s Order pending appeal.

Leon v Ascenio, 2025 WL 1031340 (S.D. New York, 2025)[Mexico] [Habitual residence] [Motion to dismiss denied]

2025-04-13T08:39:00.002-04:00

In Leon v Ascenio, 2025 WL 1031340 (S.D. New York, 2025). Petitioners Idalia Dominguez Ochoa (“Mother”) and Marco Antonio Aragon Leon (Father”) brought this case against Wendi Ochoa Perez, Elias Sanchez Corona, Isaias Sanchez Ochoa, and Irene Trujilo Ascenio seeking the return of their two daughters, J.A.D. and W.Y.A.D. who were three (3) and ten (10) years of age, to Mexico.

The district court denied the Respondent’s Motion to Dismiss Petitioner’s First Amended Verified Petition. The petitioners were the parents of J.A.D. and W.Y.A.D., minor children born in Morelos, Mexico. Respondents include Wendi, the minor children’s maternal grandmother, Elias, the husband of Wendi, Isaias, the son of Wendi, and Irene. Respondents reside at 53 Lander Street, Floor 1, Newburgh, NY 12550. Before being retained in New York, J.A.D. and W.Y.A.D. spent their entire lives in Mexico. Petitioners asserted that pursuant to Mexican civil law and jurisprudence they retain parental and custody rights over J.A.D. and W.Y.A.D. At the time of the purported wrongful retention of J.A.D. and W.Y.A.D., Petitioners were exercising their rights of custody and would have continued doing so if not for the Respondents’ retention of the children. Petitioners had decided as a family to move to New York, and that the best strategy for doing so was for the Father to cross the United States-Mexico Border with J.A.D. and W.Y.A.D. Once they successfully crossed into the United States, the Mother would immediately attempt to enter the United States herself. The petitioners intended that the children would return to and reside in Mexico until the family could move together as a single unit to the United States. This effort ultimately failed, as the Father was detained for two months in a detention facility in Tuscon, Arizona. J.A.D. and W.Y.A.D., in the interim, were taken to the Respondents by the people they crossed the border with. The Father returned to Morelos, Mexico, and requested that Respondents return J.A.D. and W.Y.A.D. to Mexico, but Respondents refused and to date continued to refuse to do so.

Respondents sought dismissal of Petitioners’ First Amended Verified Petition, arguing that Petitioners failed to state a prima facie case of wrongful retention under the Hague Convention. The Second Circuit has articulated a two-pronged inquiry to ascertain a child’s habitual residence. “First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents controls the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.” Gitter, 396 F.3d 124, 135 (2d Cir. 2005). Regarding the first Gitter factor, Respondents argued that Petitioners’ shared intent was to “abandon their previous habitual residence in Mexico and acquire a ‘new habitual residence’ with family already in the United States.” Respondents cited to Petitioners’ explicit acknowledgment in their Petition that their intent was that the family would move to the United States as a single unit from Mexico. Respondents were correct to note that “abandonment of the original country of habitual residence” is a relevant factor in determining the habitual residence of the purportedly wrongfully retained children. Rodriguez v. Lujan Fernandez, 500 F. Supp. 3d 674, 702 (M.D. Tenn. 2020). However, the Respondents’ characterization fatally oversimplified the efforts of Petitioners. It is true that Petitioners sought to permanently move from Mexico to the United States; however, such a move was conditional on the family moving together, not solely J.A.D. and W.Y.A.D.

This was akin to Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012), where the Second Circuit affirmed the District Court’s finding that the habitual residence of the children therein was Mexico, not the United States. In Mota, the child, Elena, initially had a habitual residence in Mexico until she was brought to the United States, in accordance with her parents’ intentions. Respondents argued that Elena abandoned her habitual residence in Mexico. The Court was not persuaded and noted that while the parents intended to abandon their residence in Mexico, they only intended to do so as a family unit. Accordingly, Elena's being in the United States was necessary – but not sufficient – to establish the United States as her habitual residence. Given Elena’s parents were unsuccessful in their efforts to join her in the United States, the Second Circuit ultimately affirmed a finding that Mexico remained Elena’s habitual residence.

The allegations in the Petition reflected the same dynamic. The Petition explicitly stated that Petitioners’ intention was for the family to move from Mexico to the United States together, and that, upon unsuccessfully moving as a single unit, the family was to return together to Mexico. Petitioners, like the parents in Mota, failed to successfully enter the United States as a single unit, and thus returned to Mexico and, correspondingly, sought the return of their children to Mexico, in accordance with their original intent that the family would only move in such a way that they end up together. Therefore, per Mota, the first prong of the Gitter habitual residence analysis favored the Court finding that Mexico remained J.A.D. and W.Y.A.D’s habitual residence, as it cannot be argued that Petitioners’ abandoned Mexico as their habitual residence.

The second prong of the Gitter habitual residence analysis likewise counsels finding that Mexico remained the habitual residence of J.A.D. and W.Y.A.D. Based on the allegations of the Petition and Respondents’ motion, it was not evident that J.A.D. and W.Y.A.D. had acclimated to their new environment in New York such that they acquired a new habitual residence. First, the Court noted that the Second Circuit has counseled that courts “should be ‘slow to infer’ that a child’s acclimatization ‘trumps the parents’ shared intent.’ ” Indeed, “only in ‘relatively rare circumstances’ in which a child’s degree of acclimatization is ‘so complete that serious harm ... can be expected to result from compelling his [or her] return to the family’s intended residence’ might we conclude that the child’s habitual residence has shifted to his or her new location.” This is especially the case given the Second Circuit’s articulated principle that it would “frustrate the objectives of the Convention if a parent or guardian could secure an advantage in an anticipated custody dispute by ... merely retaining a child [ ] long enough to amass evidence of the child’s acclimatization to a new location.”

In light of such axioms, the allegations in the Petition support a finding that Mexico remained the habitual residence of J.A.D. and W.Y.A.D. If determined to be accurate, the Court would be reticent to find that J.A.D. and W.Y.A.D.’s time in the United States should trump Petitioners’ shared intent to enter into the United States as a single-family unit or return to Mexico, in the alternative, as a single-family unit. Therefore, the Petition, as alleged, supported a finding that Mexico remains their habitual residence.

The final question within the Gitter wrongful retention analysis is whether the Respondents’ retention of J.A.D. and W.Y.A.D. can be characterized as a wrongful retention. This question ultimately turns on whether the Petitioner is able to satisfy the threshold set by the second and third factors of the Gitter wrongful retention standard. The second factor in the Gitter analysis is whether the Respondents’ retention of J.A.D. and W.Y.A.D. was in breach of Petitioners’ custodial rights. This determination is made in reference to the “ ‘custody rights under the law of the State of [the] habitual residence’ and whether the evidence shows that [Petitioners’ were] exercising those rights at the time of the retention—or would have been exercising those rights but for the retention.” Mota, 692 F.3d 108 at 116-17. Mexico’s custodial laws “places a series of correlative rights and obligations on the holder of parental authority.” These include “custody of the minors, the authority to raise them, discipline them, represent them in legal acts, administer their property, feed and care for them,” in addition to choosing their place of domicile. It follows, then, that Respondents’ “retention of [J.A.D. and W.Y.A.D.] in the United States violates, [as alleged], [Petitioners’] right[s] under Mexican law to maintain physical custody of [their] daughter[s,]” satisfying the second factor of the Gitter analysis. Mota, 692 F.3d at 117.

As to the third Gitter factor, whether at the time of retention, Petitioners were exercising their custodial rights, based on the Petition’s allegations, specifically that Petitioners “seek [their daughters] return to Mexico so [they] can continue to care for [their] daughter[s], and meet [their] parental obligations,” the Court must conclude, as alleged, that Petitioners were indeed utilizing their parental rights at the time of Respondents’ retention of J.A.D. and W.Y.A.D. Taking the Petition’s factual averments as true and construing them in the light most favorable to the Petitioners, the allegations are “consistent[ ] only with the conclusion that [Petitioners] would be exercising [their] parental authority now were it not for [J.A.D. and W.Y.A.D.’s] retention by [Respondents].” Mota, 692 F.3d at 117. Therefore, given that Petitioners have satisfied the second and third factors of the Gitter analysis, the Court concluded that Respondents’ retention of J.A.D. and W.Y.A.D. constituted wrongful retention under the Hague Convention. By extension, the Court found that Petitioners successfully alleged a prima facie case for wrongful retention under the Hague Convention and declined to dismiss the Petition.

Tatari v Durust, Not Reported in Fed. Rptr., 2025 WL 947009 (Second Circuit, 2025) [Turkey] [Petition granted] [Habitual residence][Breach of custodial rights]

2025-04-05T09:31:00.007-04:00

In Tatari v Durust, Not Reported in Fed. Rptr., 2025 WL 947009 (Second Circuit, 2025) the Second Circuit affirmed the February 3, 2025, judgment granting the petition of Petitioner-Appellee Zühtü Tatari and ordering that O.T., the parties’ joint child, be returned to Türkiye.

Dürüst and Tatari obtained a Divorce Decree from a Turkish family court in 2022, which orders that Dürüst be appointed custody of O.T. and approves and recites various provisions of a Divorce Protocol to which the parties agreed. The Decree appends Section 3.7 of the Protocol, which relates to the relocation of O.T. abroad. Section 3.7 reads: “[Dürüst] agrees, acknowledges, and undertakes irrevocably that if she decides to live abroad together with the joint child, she will obtain the approval and opinion of [Tatari].” Dürüst relocated O.T. to New York in August of 2024, without first notifying Tatari or seeking his consent. Tatari brought the present action, petitioning for the return of O.T. to Türkiye pursuant to the Hague Convention. After granting Tatari’s summary judgment motion in part, the district court held an expedited bench trial on the issue of whether O.T.’s removal violated Tatari’s custodial rights under Turkish law. The court then ruled in Tatari’s favor, and Dürüst appealed.

The Court observed that in cases arising under the Hague Convention and [the International Child Abductions Remedies Act], it reviews a district court’s factual determinations for clear error.” Mota v. Castillo, 692 F.3d 108, 111 (2d Cir. 2012). “It reviews de novo a district court’s interpretation of the Convention and its application of the Convention to the facts.” “In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.”

On appeal, Dürüst challenged only the district court’s determination as to the second prong of the analysis, whether the removal was in breach of Tatari’s custodial rights under Turkish law.

Tatari argued that a plain reading of Section 3.7 requires Tatari’s consent before O.T. may be relocated abroad and that this plain reading of the Divorce Protocol ought to be the end of the dispute. Dürüst contended that Section 3.7 is not enforceable under Turkish law and that its legal meaning is far from plain. The Court saw no reason here, where Dürüst is free to pursue an order from the Turkish court conclusively supporting her right to move abroad under the Divorce Decree, to disagree with the District Court’s assessment of the experts’ relative credibility. The Hague Convention counsels in favor of sending children back to their habitual residence so that close cases can be resolved in the family courts where they originated. Therefore, it concluded that the evidence before us supported the finding that Tatari had an enforceable right under Turkish law to determine O.T.’s country of residence, which, regardless of who had “custody,” is a protected custodial right under the Hague Convention that Dürüst breached by moving O.T. to the United States without his approval. Tatari’s custodial rights were breached, making the removal wrongful.

The Court acknowledged that Dürüst reasonably relied on ambiguous statements by Turkish courts and Tatari’s contemporaneous statement, memorialized in the Divorce Decree, that he understood the Protocol not to be independently enforceable. It believed that Dürüst’s reading of the Divorce Decree and its legal effects was likely an honest mistake of law. And it remained possible that Dürüst would secure a decision from a Turkish court confirming her own reading of the Protocol and unambiguously permitting her relocation. For that reason, assessment of costs against Dürüst in this case would be “clearly inappropriate.” Ozaltin v. Ozaltin, 708 F.3d 355, 375–76 (2d Cir. 2013) (“Although mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award is appropriate.”).

Morales v Restrepo, 2025 WL 939294 (E.D. New York., 2025)[Colombia] [Petition granted][Habitual residence] [Defenses of consent or acquiescence not established]

2025-04-05T09:28:00.003-04:00

In Morales v Restrepo, 2025 WL 939294 (E.D. New York., 2025) the court granted the petition for the return of the parties’ five-year-old child, L.C., to Colombia from New York.

Petitioner, Sebastian Correa Morales, and respondent, Juliana Escobar Restrepo, were both born in Medellin, Colombia. Respondent lived in the United States for twenty years beginning at nine years of age. She is a citizen of the United States and Colombia. The petitioner and respondent met in Colombia and became romantically involved around October 2014, during which time the respondent was in Colombia for roughly three months studying for her medical exam. Soon after the respondent returned to New York in January 2015, the petitioner relocated to New York to live with her in July 2015. They married in New York in September 2015. Through the respondent, the petitioner became a citizen of the United States and holds dual citizenship with Colombia. From 2017 to 2019, the respondent attended a physician assistant program, from which she received a master’s degree in 2019. In September 2019, when the respondent was pregnant with L.C., the parties moved together to Florida. In October of that same year, the respondent became certified to practice as a physician’s assistant in the United States. Respondent gave birth to the child, L.C., in January 2020 in Miami, Florida. Due to the COVID-19 pandemic and being a new mother, the respondent did not begin working as a physician’s assistant until January 2021, when she joined a psychiatrist’s office at which she provided telemedicine services. At the end of that year, the parties sold some of their furniture and moved with L.C. and the rest of their belongings to Medellin, Colombia in December 2021. The parties lived together in Colombia until they separated in August 2022. At first, they lived together and divided their time between their mothers’ houses in El Carmen and Itagui while they worked on building a house in El Carmen. El Carmen is located in a rural area roughly 80 miles outside of Medellin; Itagui is located near. By November 2022, the parties each moved into their respective mothers’ houses, both located in Itagui and roughly a five-minute drive apart. During this time, the parties co-parented L.C., who stayed with the petitioner every other weekend and visited with the petitioner during the week.

Due to privacy laws, the respondent was unable to practice remotely as a physician’s assistant in the United States while located in Colombia and became unemployed in April 2022. Respondent was unable to find other employment because the position of physician’s assistant does not exist in Colombia, and her master’s degree did not aid in her job search outside of the United States. Upon the parties’ separation, the respondent indicated to the petitioner on multiple occasions that she wanted to move back to the United States, in part to find work in her field. In February 2024, Delmoral filed a Verified Complaint for Divorce (“Complaint”), signed by the petitioner, in New Jersey state court and emailed service of the Complaint to the respondent on April 10, 2024. The Complaint lists residential addresses for the petitioner in New Jersey and the respondent in New York and calls for the respondent to retain full physical custody of L.C. The Complaint is not signed by respondent.

Respondent made the decision to move to the United States in November 2023. Around November or December 2023, respondent decided to move to Florida instead of New York and expressed to petitioner that she would do so “depending” on her employment and “work/life balance.”. In late 2023 and early 2024, respondent prepared for the move. She sold her car to petitioner, informed L.C.’s daycare that he would not return, and gave away some of her belongings. Respondent purchased a one-way airplane ticket from Medellin to Orlando, Florida. That same month, petitioner registered the child as a Colombian citizen with the Office of Civil Registry in Colombia. Petitioner then provided a written authorization, as required by Colombian law, for L.C. to travel to the United States from January 26, 2024, to May 15, 2024, for purposes of “tourism.” On January 26, 2024, respondent traveled from Colombia to the United States with L.C. On arriving in the United States, respondent and L.C. moved in with respondent’s cousin and her family in Kissimmee, Florida. In March of that year, petitioner and his mother visited L.C. in Florida, and petitioner again visited L.C. in Florida in April 2024. During each of these trips, petitioner picked up L.C. and stayed with him without respondent. On April 28, 2024, petitioner, with respondent’s consent, purchased tickets for respondent and L.C. to travel from Orlando, Florida, to Medellin, Colombia on May 16, 2024—the day after the travel authorization expired.

Respondent and L.C. continued to reside in Florida until relocating on May 4, 2024, to the house of respondent’s mother and stepfather in New York She then informed petitioner that she and L.C. would stay in New York.. Two days after the move to New York, petitioner sent respondent a text message stating, “You’re making unilateral decisions that you wouldn’t like me to make.”. On May 14, 2024, respondent messaged petitioner that L.C. would not travel to Colombia as previously scheduled. Respondent and L.C. did not return to Colombia on May 16, 2024.

In New York, respondent and L.C. initially resided with family in Fresh Meadows, until June 2024 when they relocated to Queens. At that time, respondent did not disclose to petitioner the address where she and L.C. were living in Queens because she feared that petitioner would take L.C. to Colombia without her permission. Respondent also feared that if L.C. traveled to Colombia, petitioner would refuse to provide a written authorization for L.C. to return to the United States. In August 2024, petitioner took L.C. on a trip to Florida, without respondent’s consent. In text messages that followed, petitioner explained his travel plan; that his intention was not to take L.C. to Colombia, including because he did not have his passports; and that he was “afraid” respondent would not allow L.C. to travel with him because she had “acted unilaterally.”

Petitioner filed this action against respondent pursuant to the Convention on November 15, 2024, seeking the return of L.C. to Colombia. The Court found that Colombia was the place of L.C.’s habitual residence immediately prior to his wrongful retention in the United States on May 16, 2024; petitioner was exercising his parental custody rights under Colombian law at that time, and those rights were breached by the wrongful retention; and petitioner’s limited consent to L.C.’s travel to the United States was dependent on multiple conditions that were not satisfied. Accordingly, L.C. was wrongfully retained in the United States on May 16, 2024, in violation of the Convention and had to be returned to Colombia.

The Court found that L.C.’s habitual residence at the time of the retention was Colombia. Prior to January 2024, the parties intended to, and did, establish Colombia as L.C.’s habitual residence. When respondent traveled with L.C. to the United States between January and May 2024, the parties did not have a shared and settled intent to change L.C.’s habitual residence to Florida or New York. Nor did the record establish that L.C. became acclimatized during his roughly four-month tenure in the United States prior to the date of the alleged wrongful retention.

Between January and May 2024, L.C. resided with respondent in Florida and, to a limited extent, New York. During that time, L.C. did not experience acclimatization to such an extent that his habitual residence changed from Colombia to the United States. L.C.’s time in the United States prior to the alleged wrongful retention spanned only four months during which he moved from Florida to New York. Cf. Papakosmas v. Papakosmas, 483 F.3d 617, 627 (9th Cir. 2007) (finding no acclimatization where children’s life in Greece was in a “permanent state of flux” including three different homes in four months). The majority of L.C.’s family was still located in Colombia, petitioner and L.C.’s paternal grandmother visited L.C. while in Florida, and L.C. retained health insurance coverage in Colombia. See Sundberg v. Bailey, 293 F. Supp. 3d 548, 557 (W.D.N.C. 2017), aff’d, 765 F. App’x 910 (4th Cir. 2019) (finding no acclimatization in part because child “maintained significant contacts” and “regular contact with her father ... aunt and cousins” and “continue[d] to be a patient in the Swedish healthcare system”). Although L.C. attended daycare and engaged with family and friends in Florida, he did not do so during his roughly two weeks in New York. And while respondent presented evidence that L.C. was beginning to learn English during his time in Florida, the record does not indicate that L.C. became proficient beyond “learning some words in English.” Moreover, at this time L.C. had just turned four years old, which suggests that he was too young to become attached to two new environments in the span of a few weeks or months. See Monasky, 589 U.S. at 78; Sundberg, 293 F. Supp. 3d at 557 (finding four-year-old child “not of an age where [she is] strongly attached to any particular school or social environment”). Accordingly, the Court found that L.C.’s habitual residence did not change to the United States—whether in Florida or New York—between January and May 2024.

Pursuant to Colombian law, petitioner had custody rights over L.C. See Civ. Code Col., Arts. 253, 288. Moreover, petitioner was exercising those custody rights at the time of retention on May 16, 2024, in part because he had recently (i) obtained Colombian citizenship for L.C., Tr. 219:10–13; (ii) only authorized travel through May 15, see PX7; (iii) and requested assistance from the parties’ counselor, Gomez, on May 15 after he learned that respondent would not return to Colombia with L.C. the next day,

The Court found that respondent has failed to establish the defenses of consent or acquiescence by a preponderance of the evidence. Instead, the record indicated that petitioner conditionally consented to L.C.’s relocation to the United States based on several conditions, including that L.C. live in Florida and travel to Colombia in May 2024. Because those conditions were not met, petitioner’s geographically and temporally limited consent was no longer valid at the time of retention.

To support the defense of consent, respondent primarily relied on the following evidence: her testimony that the parties’ “understanding was that L.C. was going to live with [her] permanently in the United States,”; petitioner’s voice message in which he stated that “children belong to the mother,”; and her testimony that the “tourism” designation on the travel authorization form was a formality and did not accurately represent petitioner’s intent. Additionally, Dr. Cadena testified that respondent did not express to him that her move to the United States was subject to any conditions by petitioner, and respondent’s mother testified that, based on her conversations with the respondent, she understood that petitioner did not impose any conditions on respondent’s move to the United States. This evidence supported, at best, that there may have been a miscommunication between the parties. However, it did not constitute a preponderant showing that petitioner provided unconditional consent for L.C.’s permanent relocation.

The Court found that petitioner established by a preponderance of the evidence that he placed two conditions on L.C.’s potential relocation to the United States: (1) respondent and L.C. must live in Florida, and (2) L.C. must travel to Colombia in May 2024. Accordingly, petitioner’s consent was limited in time and geography.

As to the first condition, the parties discussed that L.C. would be located in Florida, in part because it was geographically near to Colombia. Most compelling, respondent herself told petitioner in February 2024 via text message that she moved to Florida rather than New York “for L.C. to live better and to be closer to Colombia” even though she could “earn[ ] more money” in New York. As to the second condition, petitioner’s travel authorization was sufficient. See Swett, 733 F. Supp. 3d at 277 (finding “notarized travel authorization” with return date “unambiguous[ ]” as to petitioner’s permission for child’s removal “only until that date”). Pursuant to petitioner’s rights under Colombian law, once L.C. became a Colombian citizen in January 2024, respondent could not travel abroad with L.C. unless she obtained written permission from petitioner. Petitioner admits that he registered L.C. as a Colombian citizen without respondent’s consent, as he believes it was his right to do. Respondent was upset by petitioner’s actions and argues this is part of a broader pattern of petitioner’s bad faith as to L.C.’s relocation. That petitioner registered L.C. as a Colombian citizen without respondent’s consent may indicate distrust between the parties, but that alone does not demonstrate that the subsequent travel authorization was invalid. Indeed, by respondent’s account, petitioner took this step so that he could require the respondent to obtain his permission to leave Colombia with L.C. Petitioner did so to exercise control over L.C.’s residence and provided that permission via a written authorization, allowing L.C. to travel to the United States from January 26 to May 15, 2024, for purposes of “tourism.” PX7; Tr. 100:18–101:3. This lends further support that petitioner did not give blanket permission for L.C.’s move and, to the contrary, that he wanted to ensure L.C.’s return to Colombia.

Further, whether petitioner’s designation on the travel authorization that L.C.’s trip was for “tourism” accurately reflected petitioner’s intent or represented a mere “formality” as respondent testified, it was clear that the travel authorization did not indicate that he consented to respondent’s retention of L.C. in the United States after May 16, 2024. See Garcia Moreno v. Martin, No. 08-cv-22432, 2008 WL 4716958, at *11 (S.D. Fla. Oct. 23, 2008) (finding travel authorization that included “nothing” about the child “permanently moving or relocating” did not indicate petitioner consented to permanent removal to the U.S.). The parties disputed the purpose of L.C.’s May 2024 trip to Colombia. Petitioner testified that the purpose of the trip was to “evaluate L.C.’s adaptability in the U.S.,” and to go on vacation, respondent testified the trip was solely for vacation. While the Court found some inconsistency between petitioner’s testimony as to the temporary nature of L.C.’s move to the United States and his later message that the parties had agreed to a “vacation” in Colombia, these explanations were not mutually exclusive. In either scenario, the condition was that L.C. would travel to Colombia. Petitioner purchased airplane tickets for L.C. and respondent to fly to Colombia on May 16, 2024, with respondent’s knowledge In addition to the travel authorization, the parties’ co-parenting counselor, Gomez, testified that a condition of the move to the United States was that L.C. would travel to Colombia to “see” petitioner. Indeed, after respondent informed petitioner that L.C. was not returning to Colombia as scheduled, petitioner immediately reached out to Gomez for an emergency session. This action demonstrated both that petitioner discussed this condition during the parties’ prior sessions with Gomez and that L.C.’s trip to Colombia was a material condition on petitioner’s consent. Petitioner’s swift and strong reaction suggested that there was no doubt as to his intentions that L.C. was required to travel to Colombia in May 2024.

Respondent did not fulfill those conditions. Instead, on May 4, respondent traveled with L.C. to New York and just two days later told petitioner that she planned to stay there with L.C., in violation of the first condition that L.C. reside in Florida. The testimony from respondent, her mother, and Gomez that petitioner was aware of the possibility that she may move to New York or Georgia does not support a finding of consent to those locations. And even if respondent did not agree to petitioner’s geographical condition, what is important under the Convention is petitioner’s “subjective intent” in allowing L.C. to travel to the United States. See In re Kim, 404 F. Supp. at 516. Further, respondent testified that she refused to disclose her New York address to petitioner and to bring L.C. to Colombia because she feared that petitioner would take L.C. to Colombia without her permission or decline to provide further written authorization for L.C. to return to the United States.

Respondent’s remaining evidence failed to establish petitioner’s consent to L.C.’s indefinite and permanent relocation by a preponderance of the evidence. Accordingly, respondent failed to establish that petitioner consented to a permanent retention of L.C. in the United States or that the conditions of petitioner’s limited consent were satisfied such that the Convention does not require return of L.C. to Colombia.

Tatari v Durust, 2025 WL 327984, Not For Publication, (United States District Court, E.D. New York, 2025) [Turkey] [Habitual residence][rights of custody] [ne exeat right]

2025-02-20T13:26:00.000-05:00

[Turkey] [Habitual residence][rights of custody] [ne exeat right]

In Tatari v Durust, 2025 WL 327984, Not For Publication, (United States District Court, E.D. New York, 2025) the district court granted the Petition of Zuhtu Onur Tatari to have his son, O.T., returned to Turkey.

The issue before the court was whether or not Tatari and his ex-wife Durust’s divorce decree (“DD”) gave Tatari rights under Turkish law which the Hague Convention recognizes as custodial. Although the terms of the Divorce Decree were unambiguous in awarding Tatari certain custodial rights, the terms were in tension with Turkish law that does not formally recognize joint custody. The parties, who were married in 2016, had O.T. in 2018, and divorced in January 2022. The court previously found that Tatari had shown the first element of his Hague Convention case, that Turkey was O.T.’s habitual residence at the time Durust and O.T. moved to Brooklyn. In Turkey, for a married couple to be granted an uncontested divorce, they must present a signed divorce protocol to the court (Turkish Civil Code (“TCC”) Art. 166/3. The Turkish court must review the protocol, hear the parties’ statements regarding their decision to divorce and the construction of the protocol, and decide whether to adjust any provisions of the protocol. Any adjustments by the judge will be recorded in the divorce decree, which then can be approved by the court and the parties. The parties submitted a much-negotiated protocol to the Turkish family court. Tatari testified that he was especially concerned with the provisions governing visitation, O.T.’s schooling, country of residence, and healthcare. Durust testified she was most concerned about having sole custody of O.T. After hearing the parties’ statements and some discussion, the judge modified the visitation schedule slightly but did not adjust the other provisions of the Protocol. The Protocol was included in the Divorce Decree according to TCC Art. 184/5, and the exclusion of the Protocol’s visitation schedule was noted.

At summary judgment, the parties disputed the correct translation of Section 3.7. Tatari’s preferred translations obligated Durust to “obtain the approval and opinion” of Tatari if “she decides to live abroad together with” O.T., while Durust’s preferred translation obligated her only to “consult and seek the opinion” of Tatari “where she decides to live abroad together with” O.T. At trial, Tatari presented two experts, who testified that his preferred translation was a truer rendition of the original Turkish. The Court found that Tatari’s preferred translation of Section 3.7 was more faithful to the Turkish original.

Turning to the remainder of the Divorce Decree’s recitations in the Protocol, Section 3.8 obligated Durust to “obtain the approval and opinion of” Tatari “when any decision is required with regards to the health status” of O.T. In the fall of 2023, Durust asked Tatari to sign a consent form to renew O.T.’s American passport, which Tatari refused to do. As a result, Durust filed a lawsuit in a Turkish court to allow O.T. to receive an American passport without Tatari’s signature. In her complaint, she explained that the American consulate officials would require her to get Tatari’s signature even if Durust has sole custody of O.T. In December 2023, Durust and O.T. traveled to the Ivory Coast, where she was able to obtain an emergency U.S. passport for O.T. without Tatari’s signature. Following Durust and O.T.’s return to Turkey, Tatari filed a petition for custody of O.T. He also sought a preliminary injunction for custody of O.T. The Turkish court rejected his request for a preliminary injunction “since the request is of the essence of the case and requires a trial. In July 2024, Tatari petitioned the Turkish court overseeing the passport case to prevent Durust from taking O.T. abroad and to notify the Turkish and American authorities of this. Two days later, the Turkish court denied his request “since the parties were divorced, the mother has custody,” and “the party with custody rights may use her rights arising from custody, and she has the initiative to go abroad.” On August 20, 2024, Durust flew to America with O.T. She failed to advise Tatari of the move, much less seek his approval. The next day, she emailed him indicating her intention to remain in America. After Durust’s move to America, she filed a third action in Turkish court to change Tatari’s visitation schedule for O.T. given their move to America, which was currently pending. Finally, in October 2024, Tatari sought to expedite the custody case in Turkish court, which the family court declined to do. Nonetheless, Tatari’s witnesses were heard in that case on November 28, 2024, and Durust’s witnesses were scheduled to be heard in February 2025.

The provisions of the Protocol were approved by the judge according to TCC Art. 184/5, which provides validity to agreements as to accessorial consequences of divorce upon judicial approval. Because the judge approved the provisions of the Protocol, Tatari had at least some right to the interests established there. Based on the evidence presented at trial, the court found that under Turkish law, the provisions of the Protocol—and specifically Sections 3.7 and 3.8—provide Tatari “rights relating to the care of the person of the child.” In sum, the court held that under the Turkish Divorce Decree Tatari had the right to approve, or disapprove, certain decisions about O.T.’s life, including whether he may live abroad.

The Court held that Tatari’s right to approve or disapprove decisions about O.T.’s residence is precisely the type of right the Hague Convention recognizes as custodial. In Abbott, the Supreme Court explained that a ne exeat right was a right to “determine” the child’s place of residence because the parent can effectively limit the child’s country of residence to only the home country. 560 U.S. at 11. The child’s home country may have important influences on the child’s absorption of culture and traditions as well as his education. Id. at 11-12. Therefore, a ne exeat right is the sort of custodial right that allows the parent to effect his influence on the child. When a parent’s “consent is legally required before the other parent may move the child to another country,” that parent has a custodial right to determine the child’s residence recognized by law. Radu v. Toader, 463 F. App’x 29, 30 (2d Cir. 2012).

Persuasive caselaw from other circuits showed that Tatari’s ability to object to O.T.’s relocation abroad and present a claim subsequent to that relocation was sufficient to constitute a custodial right. In Palencia v. Perez, the Eleventh Circuit considered an unmarried father’s custody right of patria potestad under Guatemalan law. 921 F.3d 1333, 1339 (11th Cir. 2019). Guatemalan law provided that all natural parents, whether or not married, have the right and duty to exercise the parental authority of patria potestad, but that when the parents are not married, “the children shall be in the mother’s custody.” Id. at 1339-40. The mother argued that because she had custody over the children, the father could not have an effective patria potestad. The Eleventh Circuit rejected this conclusion because Guatemalan law “provides an unmarried father with certain obligations (and therefore certain rights) with respect to his child, with the caveat that ... the mother [has] the final say when the parents disagree on a given issue.” Id. at 1341. Because the father had the authority to participate in the decision-making about his child’s residence, he had a right of custody, despite the fact that the mother had the final say. Id. at 1342. Here too, even under Durust’s reading of the Divorce Decree, Tatari has the right to participate in making decisions about O.T.’s residence, even if Durust has the final say.

The Court concluded that Tatari had shown that he had a custodial right, specifically a ne exeat right, under Turkish law which was infringed when O.T. was brought to the United States without

District Court Cases in Districts other than New York Published in 2025

2025-02-20T11:33:00.009-05:00

Laing v Laing, 2025 WL 606741 (United States District Court, N.D. Illinois, 2025)
[France] [Petition denied] [Consent Defense Established]

Arrabi v Kerroum, 2025 WL 486676 (United States District Court, N.D. Georgia, 2025)[Morrocco][Petition granted][Habitual residence][Consent and Acquiescense defenses not established]

Ontiveros v Pinion, 2025 WL 446749 (United States District Court, W.D. Washington, 2025).
[Mexico][Petition granted][Habitual residence][Defendant barred from raised well settled defense][Consent defense not established]

Ciampa v Nichols, 2025 WL 521009 (United States District Court, C.D. California, 2025)[Italy][Petition granted][Grave risk of harm not established][Coercion not established]

Aguirre v Hernandez, 2024 WL 4879400 (United States District Court, D. Colorado, 2025)[Canada] [Petition granted][wrongful retention]

Alzu v Huff, 738 F.Supp.3d 1157 (United States District Court, W.D. Missouri, 2024)[Argentina] [Petition denied] [Habitual residence not established]

Moreau v White, 2024 WL 5315404 (United States District Court, E.D. Texas, 2024)[Canada] {Motion to dismiss pursuant to Younger, Colorado River, and Rooker-Feldman abstention doctrines denied]

Ikezogwo v. Fatiregun, 2025 WL 35470 (United States District Court, E.D. Pennsylvania, 2025).
[United Kingdom] [ Petition granted] [Prima facie case established] [Grave risk of harm not established]

Bindslev v Silve, Not Reported in Fed. Rptr., 2025 WL 66745 (11 Cir., 2025) [Denmark] [Petition granted] [ Return Order affirmed] [ Enforcement Order vacated]

2025-01-12T10:32:00.003-05:00

In Bindslev v Silve, Not Reported in Fed. Rptr., 2025 WL 66745 (11 Cir., 2025) the district court found that Silva had wrongfully removed her child, I.S.B., to the United States and required her to return I.S.B. to Denmark. In the “Enforcement Order,” which was issued after the Return Order was pending on appeal, the district court required Silva to turn I.S.B. over to her father, Christian Bindslev, in Florida. The Eleventh Circuit affirmed the Return Order and vacated the Enforcement Order.

The Eleventh Circuit explained that when considering a district court’s order under the Hague Convention, the Court reviews a district court’s findings of fact for clear error and its legal conclusions and applications of the law to the facts de novo.

The Eleventh Circuit held that the district court did not err in ordering I.S.B.’s return to Denmark. When one parent removes a child from another country to the United States, a U.S. court can order the child’s return to his or her “country of habitual residence” if the non-removing parent proves “by a preponderance of the evidence, that [the] child was ‘wrongfully removed or retained within the meaning of the Convention.’ ” Chafin v. Chafin, 742 F.3d 934, 935, 938 (11th Cir. 2013) (quoting 42 U.S.C. § 11603(e)(1)(A)).

In the Return Order, the district court found that Bindslev had made out a prima facie case for return. Silva asserted that the court further found that return would expose I.S.B. to a “grave risk of harm” and that the “ameliorative measures” that the court imposed were ineffective. In the alternative, she argued that the district court was required, but failed, to make a finding on the grave-risk-of-harm issue.

The Eleventh Circuit disagreed. As it read the Return Order, the district court found that Silva had not established a grave risk of harm. In relevant part, the Order stated as follows: “Although [Silva] argued that returning the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, this Court found that the court in Denmark was fully capable of protecting the child if necessary.” The district court could have expressed itself more clearly, but by beginning its statement with the word “[a]lthough,” it sufficiently indicated its consideration, and rejection, of Silva’s grave-risk argument. The court’s reference to the Denmark court’s capacity to protect I.S.B. did not suggest otherwise. Although Silva contended that the remark refered to an ameliorative measure, and therefore suggested that the court found that she had established the requisite grave risk, the capacity of Denmark’s tribunals to protect I.S.B. was not a court-imposed ameliorative measure, but rather an independently existing fact.

The Eleventh Circuit observed that it reviews de novo questions on the jurisdiction of the district court. It held that the district court lacked jurisdiction to issue the Enforcement Order while the Return Order was pending before it on appeal. Absent entry of a stay on appeal the District Court retains jurisdiction to enforce its orders. But the filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. Accordingly, the district court does not have the power to alter the status of the case as it rests before the Court of Appeals.

The Enforcement Order purported to alter the status of an issue involved in a pending appeal. The Return Order stated that “[I.S.B.] shall not be turned over to [Bindslev].” In stark contrast, the Enforcement Order stated that Silva will “surrender [I.S.B.] to the custody and possession” of Bindslev. That was not a valid “enforcement” of the Return Order. Rather, it was an attempted amendment of a portion of the Return Order that was inseparably involved in a pending appeal before the Court. The district court had no jurisdiction to do so. Accordingly, it vacated the district court’s Enforcement Order.

In a footnote, it pointed out that the Return Order did not violate Federal Rule of Civil Procedure 52(a)(1), as Silva contended. The Order incorporated “the reasons stated on the record,” and those reasons were sufficiently detailed to clear Rule 52’s low bar. See Compulife Software Inc. v. Newman, 959 F.3d 1288, 1308–09 (11th Cir. 2020)

Nisbet v Bridger, 2024 WL 5178814 (9th Cir, 2024) [Scotland] [Petition denied] [Habitual residence]

2024-12-22T13:43:00.001-05:00

In Nisbet v Bridger, 2024 WL 5178814 (9^th Cir, 2024) the Ninth Circuit, construing the Supreme Court decision in Monasky v Taglieri, 589 U.S. 681, 40 S.Ct. 719, 206 L.Ed.2d 9, affirmed an order of the district court which denied Andrew Nisbet's petition under the Hague Convention for the return to Scotland of his two young children,¹ ACN (born in February 2018) and KRN (born in February 2020).

Nisbet and Bridger met in 2012 in New York City when they were both on vacation. Nisbet lived and worked in Scotland as a radiologist. Bridger, a United States citizen, lived in Oregon and was unemployed. Bridger moved to Scotland in 2012 to be with Nisbet because he purportedly could not work in the United States as a radiologist. They lived in an apartment in Edinburgh that Nisbet owned. In Spring 2017, Bridger became pregnant with ACN in Scotland. Adamant about their residence, Nisbet asked to live with his parents. His parents turned them down. Shortly thereafter, Nisbet attempted suicide. Nisbet then took Bridger to Jersey, and they showed up on the doorstep of Nisbet’s parents who relented and allowed them to stay at an annex of the Jersey Residence temporarily while Bridger was pregnant with ACN. In January 2018, Nisbet again attempted suicide. In February 2018, ACN was born in Jersey. Bridger took care of both ACN and Nisbet for six months in Jersey, with minimal assistance from Nisbet’s parents. In August 2018, Bridger moved from Jersey to Scotland with ACN. Nisbet still lived in Jersey but commuted between Jersey and Edinburgh. During this period, Bridger prepared to leave for the United States, but Nisbet convinced her to stay for a few more months. In February 2019, Bridger returned to Jersey with ACN after Nisbet assured her that he had reconciled with his parents. Despite this assurance, Nisbet’s relationship with his parents deteriorated. Nisbet would bang his head against the wall every day, sometimes several times a day. He punched walls and broke a table. The police were called when Nisbet once cornered his father and pulled his mother’s hair. Bridger told Nisbet she no longer loved him and wanted to return to the United States. In early August 2019, Nisbet’s parents served a notice of eviction on Nisbet and Bridger. On August 6, 2019, Nisbet killed his mother by stabbing her in the neck with a pocketknife. He was arrested and pleaded guilty to manslaughter on the grounds of diminished responsibility owing to a mental disorder. The Royal Court of Jersey sentenced Nisbet to indefinite psychiatric confinement at Brockfield House in Essex, England. The district court found that Nisbet’s family had since severed contact with Nisbet, Bridger, and ACN. Around the same time, by August 2019, Bridger had become pregnant with KRN. After Nisbet was arrested, Bridger and ACN were taken to a refuge and then to a halfway house in Jersey. Bridger planned to return to the United States once she was no longer needed for the police’s investigation of Nisbet. As KRN’s due date neared, Bridger instead moved to the Edinburgh Residence in late 2019 to give birth to KRN because she did not have health insurance in the United States, she had no other place in the United Kingdom to live with her children, and she believed she needed to remain in the country while Nisbet’s criminal case was pending, Bridger still planned to leave for the United States shortly thereafter, if she were released by the police authorities. KRN was born in February 2020. Then, the COVID-19 pandemic hit; country borders and airlines were closed. From then until June 2022, and during the COVID-19 restrictions period, Bridger lived in the Edinburgh Residence with ACN and KRN. Bridger kept in contact with Nisbet because she needed Nisbet’s signature to apply for KRN’s U.S. passport, she needed financial support from Nisbet, and her U.K. visa was expiring. Bridger told Nisbet multiple times she needed to return to the United States and reunite with her family. While in Edinburgh, ACN and KRN attended a nursery school, and they received regular medical and dental care. Bridger testified that ACN and KRN “didn’t actually make friends when they were in Scotland at nursery.” They made acquaintances elsewhere, “but they never knew anyone on a name basis.” ACN and KRN visited Nisbet several times at St. Andrew’s Hospital in Northampton, England, where Nisbet has been in custody since April 2021. Nisbet scheduled Skype calls with ACN and KRN from his psychiatric facility in England every day for an hour. He tried to read stories and play games with them, but often after a short period, ACN and KRN stopped paying attention to Nisbet on the screen. Bridger never intended Scotland to be more than a temporary location for her and her children. In December 2021, Nisbet finally signed the necessary documentation for KRN’s U.S. passport, knowing Bridger intended to take KRN to the United States. Bridger immediately applied for a U.S. passport for KRN. While waiting for months to receive KRN’s U.S. passport, Bridger began packing and sent belongings to the United States. On June 17, 2022, Bridger left Scotland for the United States with ACN and KRN. On June 12, 2023, Nisbet filed a petition under the Hague Convention. On October 24, 2023, six days after the trial, the District Court denied Nisbet’s petition, finding, inter alia, that Nisbet failed to prove by a preponderance of the evidence that Scotland was ACN and KRN’s habitual residence. Nisbet appealed.

The Ninth Circuit observed that in general, a child’s habitual residence is “the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant.” Monasky, 589 U.S. at 78. Such facts include “geography combined with the passage of an appreciable period of time,” “age of the child,” “immigration status of child and parent,” “academic activities,” “social engagements,” “participation in sports programs and excursions,” “meaningful connections with the people and places,” “language proficiency,” and “location of personal belongings.” Id. at 78 n.3. “Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. “No single fact, however, is dispositive across all cases.”. Courts determine a child’s habitual residence by looking at “the totality of the circumstances specific to [each] case,”, and they must be “sensitive to the unique circumstances of [each] case and informed by common sense,” id. at 78. “The bottom line: There are no categorical requirements for establishing a child’s habitual residence.” A habitual-residence determination is a mixed question of law and fact. A trial court must first correctly identify the totality-of-the-circumstances standard. Once it has done so, what remains is a factual question that can be reviewed on appeal only for clear error. Under this standard of review, it cannot reverse a district court’s finding that is “plausible in light of the record viewed in its entirety,” even if convinced that it would have found differently. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). If “there are two permissible views of the evidence,” the trial court’s “choice between them cannot be clearly erroneous.” This standard of review is deferential, so much so that the Supreme Court has adopted it in the Hague Convention context with the goal to “speed [] up appeals.” Monasky, 589 U.S. at 84.

The Ninth Circuit pointed out that when Bridger lived with ACN and KRN in Scotland from late 2019 through June 2022, ACN was approximately two to four years old, and KRN was less than two and a half years old. Their ability to acclimatize to society was limited at the time. That said, the district court considered whether ACN and KRN could have acclimatized to Scotland through three likely ties: people in the societal surroundings, Nisbet’s family and friends, and Nisbet. The district court found ACN and KRN did not make any friends at their nursery school or elsewhere in Scotland. Nisbet’s family severed contact with Nisbet, Bridger, and their children. The district court considered ACN and KRN’s lack of connection with Nisbet. Nisbet had been incarcerated since KRN’s birth; he lived with ACN only intermittently for at most a year, half of which time he was bedbound because of his second suicide attempt. Nisbet himself had not lived in Scotland since 2017—he first lived in Jersey, then he was confined at Brockfield House in Essex, England, and thereafter transferred to St. Andrew’s Hospital in Northampton, England. Granted, Nisbet tried to interact with ACN and KRN over Skype from his psychiatric internment in England every day for an hour. Often after a short period, however, ACN and KRN stopped paying attention to Nisbet on the screen. There was no clear error when the district court concluded ACN and KRN “had no family or friends in Scotland” and “no meaningful relationship with their father.”

The Court observed that district court followed the Supreme Court’s teaching in Monasky that “the intentions and circumstances of caregiving parents are relevant considerations,” when a child,like ACN, less than four and a half years old by June 2022, and KRN, less than two and a half years old at the time, is unable to acclimate due to his very young age or other reasons. On the mother’s side, Bridger’s intention and circumstances militated against finding Scotland to be ACN and KRN’s habitual residence because, as the district court observed, Bridger “had been shuttled through Jersey shelters,” “repeatedly contemplated moving back to Oregon,” and was in the United Kingdom “on an expiring visa.” Therefore, the district did not clearly err in placing significant weight on Bridger’s lack of ties to Scotland when ascertaining ACN and KRN’s habitual residence. See Monasky, 589 U.S. at 80 n.4 (recognizing the mother’s integration to a country as a “highly relevant” factor, if a young child is “in fact looked after by her mother”. On the father’s side, the district court afforded little weight to his role as a caregiver. The district court found Nisbet arguably “raised ACN in earnest” only “for the six months between February and August 2019,” and he did not raise KRN at all because he had been imprisoned before KRN’s birth. It did not find the district court committed a clear error in focusing on the intention and circumstances of Bridger, the sole caregiving parent of ACN and KRN.

Nisbet contended the district court clearly erred simply because it found ACN and KRN lacked habitual residence altogether. The Court responded that this contention is tantamount to a categorical ban against finding no habitual residence. As the Supreme Court has made clear, the “bottom line” is “[t]here are no categorical requirements for establishing a child’s habitual residence.” Monasky, 589 U.S. at 80. While a finding of no habitual residence is rare and should be disfavored, it is not a clear error to render such a finding if the totality of the circumstances of a particular case so warrants.

Nisbet maintained the district court clearly erred in finding ACN and KRN had not habitually resided in Scotland, “where they had lived for two years and four months in the same apartment, where they had attended the same preschool, [and] where all of their medical and dental visits had occurred.” The Majority responded that Supreme Court has held a child’s “mere physical presence” in a country “is not a dispositive indicator of” his habitual residence. Monasky, 589 U.S. at 81; see also id. at 78 (reasoning that a place is just “likely” to be a child’s habitual residence, if the child has lived there “with her family indefinitely”. Nor is the attendance in any preschool determinative. See id. at 78 (“No single fact” “is dispositive across all cases.”). The ultimate object for evaluating a child’s social engagement is to assess acclimatization. Id. at 78 & n.3. Where, as here, factors such as physical presence and preschool attendance did not yield any meaningful social connections for a child, they are not entitled to much salience in courts’ habitual-residence determinations. Therefore, there was no clear error on the district court’s part.

The Ninth Circuit emphasized that it owed obedience to the Supreme Court, which has encouraged trial courts to make habitual-residence determinations based on “a quick impression gained on a panoramic view of the evidence.” Monasky, 589 U.S. at 82. Reviewing such determinations for clear error, it owes deference to trial courts, which enjoy the vantage point of observing witnesses’ demeanor, candor, and other indicia of credibility.

Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) [Canada] [Petition denied] [now settled defense established]

2024-11-22T10:14:00.006-05:00

In Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) Petitioner-Appellant Raphael Stein (“Stein”) appealed pro se from the denial of his petition for the return of his three Canadian-born minor children to Montreal, Canada. The petition alleged that the children’s mother, Adeena Kohn (“Kohn”), wrongfully retained the minors in Monsey, New York, after a trip to this country in 2020. Stein faulted the district court’s findings, following a bench trial, that (1) his return petition was untimely filed more than a year after the alleged wrongful retention and (2) the children were “now settled” in Monsey.

The Court reviewed the district court’s factfinding for clear error and its “application of the Convention to the facts” de novo. The clear error standard is deferential, and the Court will “accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)). Because Stein appealed pro se, it construed his briefs liberally to raise the strongest arguments they suggest.

Stein primarily argued on appeal that Kohn’s wrongful retention of the children occurred not in March or October 2021, but instead at some point in January 2022, when he realized that Kohn had changed the locks on her apartment. The Court observed that the distinction mattered because, if credited, it would mean that Stein’s December 2022 petition was timely and foreclose Kohn’s defense that the children are “now settled” in this country, thereby requiring their return to Canada. It pointed out that in cases where the petitioning parent originally consented to the child’s stay outside its habitual residence, wrongful retention occurs on the date that the petitioning parent is informed that the co-parent will not be returning the child to its country of habitual residence. See Marks, 876 F.3d at 421–22. It saw no error in the district court’s finding that the wrongful retention of the children here occurred on March 6, 2021, or, at the latest, on October 4, 2021. On March 5, 2021, Stein told Kohn that he did not agree with the children staying in New York permanently and that he wanted the family to resume living in Canada as soon as possible. The next day, Kohn responded that the parents were not on the same page and that she would not return to Montreal. Because the parties agreed that Kohn would not live apart from the children, the district court reasonably found that “Stein understood Kohn would keep the children with her wherever she was living.” Alternatively, Kohn’s October 4, 2021 divorce filing, where she sought custody of the children, clearly alerted Stein to her intent to remain in New York with the children. See Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir. 2013). Either way, the wrongful retention occurred more than a year before Stein filed his petition on December 19, 2022, meaning the “now settled” defense was available to Kohn.

The Second Circuit stated that Article 12 of the Convention requires the district court to grant even an untimely petition for the return of the child to its habitual residence, “unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this “now settled” defense by a preponderance of the evidence. In determining whether a respondent carried this burden, a district court properly considers whether “the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment,” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), an inquiry informed by the following non-exhaustive factors: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Here, the district court carefully evaluated each factor. Viewing the record as a whole, it identified no clear error in its factual findings. The children, who at the time of trial were seven, five, and three, had “lived in Monsey for at least half their lives,” with the youngest having “lived in Monsey nearly her entire life.” Thus, the district court reasonably found that “most, if not all,” of the two elder children’s “memories are likely of Monsey, not Montreal.” The district court further found the children to have lived continuously in the same apartment complex for the whole of their time in Monsey, surrounded by their maternal grandparents, “great-grandmother, aunts, and several of the children’s cousins.” Also, each child had consistently attended daycare and school in Monsey and regularly joined Kohn’s extended family at their local synagogue. The children frequently played with local friends and cousins. Nor was there any risk of deportation given that “Kohn is [a] U.S. citizen, and at least the two older children [already] have U.S. passports.” The only factor weighing against settlement is Kohn’s failure to maintain stable employment in New York. The district court was not required to accord this factor great weight because Kohn had the support of her family, and the children enjoyed a stable environment throughout their time in Monsey.

Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024)[Chile][Petition denied] [Habitual residence] [Now settled defense established]

2024-11-04T12:32:00.001-05:00

In Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024) Petitioner-Appellant Maria Elena Swett Urquieta (“Swett”)1 appealed from an order of the United States District Court denying her petition for repatriation to Chile of her minor son S.B.S. from the United States, where S.B.S. was wrongfully retained by his father, Respondent-Appellee John Francis Bowe.

Swett, a Chilean actress, and Bowe, a writer based in the United States, have a son, S.B.S., who was born in Minnesota in 2012. Swett and Bowe separated shortly thereafter but shared legal custody of S.B.S, who lived in Chile with Swett. While Swett enjoyed sole physical custody, she granted travel authorizations that permitted S.B.S. to visit Bowe in New York City. On December 23, 2022, S.B.S. and Bowe traveled from Chile to New York under a travel authorization that expired on January 8, 2023. This litigation arose because Bowe refused to return S.B.S. to Chile on January 8. Instead, he wrongfully retained S.B.S., enrolled S.B.S. in a school in New York City, and sought sole custody. On February 23, 2024, Swett filed this ICARA petition seeking S.B.S.’s return. The District Court explained that Swett had made out a prima facie case of wrongful retention under the Hague Convention but that S.B.S. need not be returned to Chile because Bowe had established two affirmative defenses available under the Convention, the “well-settled” defense and the “child objection” defense.

The Court of Appeals pointed out that the Article 12 well-settled defense “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 [his] country of habitual residency.” Lozano v. Alvarez, 697 F.3d 41, 52 (2d Cir. 2012). The defense is available only if over a year has passed from the wrongful removal or retention until the filing of the Hague Convention petition. The defense requires a respondent to show by a preponderance of evidence that the proceeding seeking the child’s return commenced more than one year “from the date of the wrongful ... retention” and “the child is now settled in its new environment.” Hague Convention, art. 12; 22 U.S.C. § 9003(e)(2)(B). The Court of Appeals agreed with the District Court that the petitioner can consent to an extension of time for the child’s stay, in which case the retention becomes wrongful at the end of the extension.

The Court observed that that it had not previously decided whether a petitioning parent can extend authorization for a child to remain outside the country of habitual residence after an initial instance of wrongful retention. This extension would postpone the date of wrongful retention to determine whether the well-settled defense is available. It adopted the District Court’s analysis of the defense. It held that the District Court correctly concluded that, even after an initial instance of wrongful retention, a parent may extend authorization for the child to remain outside the country of habitual residence. But it was also right to conclude that Swett did not consensually extend the authorized time and instead merely acceded to circumstances she felt she could not change after Bowe wrongfully retained S.B.S. on January 8, 2023. Swett, ––– F.Supp.3d at –––– – ––––, 2024 WL 2034713, at *31–34. Critically, the District Court found that Swett could not meaningfully consent to Bowe’s continued retention because she lacked any practical ability to control Bowe’s decisions, had already filed a police report in Chile on January 10, 2023, and did not have any firm belief that Bowe would return S.B.S at the end of the extension. The District Court thus correctly found that Bowe’s wrongful retention of S.B.S. occurred on January 8, 2023, and that the well-settled defense was available because Swett did not file her petition until more than a year after that date.

As to the remaining issues raised by Swett on appeal, the Court affirmed for substantially the reasons articulated by the District Court in its opinion and order entered on May 7, 2024.

Dashti v Long, --- F.Supp.3d ----, 2024 WL 4614387 (United States District Court, N.D. New York, 2024)[Greece] [Habitual residence] [Rights of Custody] [Motion to dismiss for failure to state a claim granted]

2024-10-31T09:12:00.005-04:00

In Dashti v Long, --- F.Supp.3d ----, 2024 WL 4614387 (United States District Court, N.D. New York, 2024) Petitioner Mohammad Ali Dashti’s petition against respondent Brittany Elizabeth Long seeking the return of his minor child, ATD, to Greece was denied.

Dashti and Long began a relationship in 2018. The couple lived together in Athens, Greece. Long became pregnant with ATD in the spring of 2018. Petitioner and respondent became engaged in November of 2018. The couple never married. ATD was born in 2019. ATD is an American citizen. Long and ATD traveled to Florida in March 2020 and were unable to return to Greece until December. Following a family vacation around Europe in December 2022, respondent returned to the United States with ATD. Respondent returned to Athens, Greece with ATD in December 2023. On January 9, 2024, Long called a friend to notify them that she and ATD were being held in Greece by Dashti against their will. The police were called to couple’s apartment and petitioner was arrested. He was released on January 13, 2024. When petitioner returned home, he discovered that Long and ATD had left. Respondent and ATD live together and reside in the Northern District of New York.

The district court rejected Long’s argument that the Court lacks jurisdiction to hear Dashti’s petition because he lacked standing under the Hague Convention because he is not a citizen of a country whose accession to the Convention the United States has recognized. The Court agreed with Dashti that his citizenship is irrelevant to the disposition of his petition. The Hague Convention applies “to any child [younger than sixteen years of age] who was habitually resident in a Contracting State immediately before any breach of custody or access rights.” Convention Art. 3. In other words, the Convention does not contemplate the citizenship of the applicant, or the petitioner. Instead, the Convention applies “as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Convention Art. 35.

Long argued that Dashti has failed to state a valid claim for wrongful removal under ICARA. To be entitled to relief under ICARA, the petitioner must prove his prima facie case of wrongful removal by a preponderance of the evidence. In particular, a petitioner must prove that: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” Tereshchenko, 102 F.4th at 127 (quoting Gitter, 396 F.3d at 130–31). Upon review, Dashti’s verified petition for the return of ATD was dismissed. Petitioner did not prove by a preponderance of the evidence that he had custody of ATD at the time of his removal. Petitioner asserted that under Article 1515 of the Greek Civil Code, he enjoyed custody of ATD as of March of 2019. a review of the provision of the Greek Civil Code cited by petitioner reveals that he did not have “custody” of ATD. Dashti is not a Greek citizen. He was an Iranian refugee residing in Greece. To the extent that Greek Civil Code was applicable given petitioner’s immigration status, Article 1515 did not vest petitioner with custody of ATD at the time of the child’s removal from Greece. Article 1515 of the Greek Civil Code provides that parental care of children born outside of wedlock belongs to the mother. The Code provides that the father may “partake” in parental care but can exercise it only “if the mother’s parental care has ceased or if the mother cannot exercise it on legal or factual grounds.” Dashti’s verified petition asserted that he and Long were not married when ATD was born. The petition further asserted that they have never been married. Petitioner did not assert that respondent ceased or became unable to exercise her parental care of ATD. Therefore, petitioner did not prove that he had “custody” of ATD under Greek law. Nor did he prove that his custody rights were breached when respondent removed ATD from Greece to the United States.

District Court Cases in Districts Other than New York Reported in 2024

2024-10-29T11:28:00.002-04:00

District Court Cases in Districts Other than New York Reported in 2024

[France] [Attorneys Fees & Costs] [not clearly inappropriate] [Significant financial hardship] [Motion for reconsideration denied]

Castang, v. Kim, 2024 WL 3360669 (District Court, N.D. Georgia, 2024)

[France] [Attorneys Fees & Costs] [not clearly inappropriate] [ Significant financial hardship]

Castang, v. Kim, 2023 WL 11845499 (District Court, N.D. Georgia, 2023).

[Ecuador] [Petition denied] [Habitual residence] [Failure to prove prima facie case]

Sarzosa, v. Vergara, 2024 WL 3976846, (District Court, S.D. Texas, 2024)

[Finland] [Petition denied] [Habitual residence] [Failure to prove prima facie case]

Tuomas 2024).

[Bahamas] [Petition denied] [Habitual residence] [Grave risk of harm and Age & Maturity defenses established]

Johnson v. Johnson, 669 F.Supp.3d 1089, (District Court, D. Colorado, 2024)

[Japan] [Motion to dismiss for forum non conveniens denied]

Abraham v. Samuel, 2024 WL 3091081 (District Court, C.D. Illinois, 2024).

[El Salvador] [Petition granted] [Now Settled and Grave risk of harm defenses not established]

Abrego, v. Guerra, 2024 WL 2732307, (District Court, W.D. Tennessee, 2024).

[Colombia] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Aguirre, v. Tillman, 2024 WL 1230253 (District Court, D. Colorado. 2024)

[Argentina] [Petition denied] [Habitual residence]

Alzu v. Huff, 2024 WL 3165485, (District Court, W.D. Missouri, 2024)

[Mexico] [Petition granted] Habitual residence]

Carmona v. Moreno, 2024 WL 579239 (District Court, M.D. North Carolina, 2024).

[Mexico] [Petition granted] Habitual residence]

De La Torre, v. Login, 2024 WL 4527139, (District Court, N.D. California,2024)

[Mexico] [Petition denied] Now Settled and Grave risk of harm defenses established]

Delgado, v. Marquez, 2024 WL 517874 (District Court, N.D. California, 2024)

[Venezuela] [Petition denied] [Habitual residence] [Now Settled defense established]

Guevara v. Castro, 2024 WL 2967273 (District Court, N.D. Texas, 2024).

[Mexico] [Habitual residence] Petition granted]

Garcia, v. Posada, 2024 WL 1615029 (District Court, N.D. Texas, 2024).

[Israel] [Motion to Dismiss and Motion for Summary Judgment denied]

Goldstein, v. Simon, 2024 WL 2132881(District Court, S.D. Florida, 2024).

[Peru] [Petition granted] [Grave risk of harm defense not established]

Guzman, v. Brazon, 2024 WL 1841602 (District Court, W.D. North Carolina, 2024)

[Scotland] [Petition granted] [Attorneys’ fees and costs] [Not clearly inappropriate] [Reduction for block billing]

Harvey, v. Means, 2024 WL 4144155 (District Court, W.D. Washington, 2024).

[Japan] [Petition denied] [Habitual residence]

Hiroki, v. Hiroki, 698 F.Supp.3d 1023 (District Court, N.D. Ohio, 2023)

[Canada] [Petition granted] [Habitual residence [[Now settled defense not established]

Horacius v. Richard, 2024 WL 996097 (District Court, S.D. Florida, 2024).

[Cyprus] [Settled on consent order for return] [Attorneys fees and costs]

Isaias, v. Araque, 2023 WL 11228077 (District Court, D. New Jersey, 2023).

[United Kingdom] [Habitual residence] [Petition granted] [Grave risk of harm not established]

Keen, v. Bowley, 2024 WL 3259040 (District Court, C.D. California, 2024).

[Spain] {Petition granted] [Attorneys fees and costs on default] [Full reimbursement granted]

Llanso, v. Rivers, 2024 WL 776021 (District Court, S.D. Florida, 2024)

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

Martinez, v. Contreras, 2024 WL 3594471, (District Court, D. Oregon, 2024).

[Mexico] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Toth v. Toth-Ledesma, 2024 WL 3568591, (District Court, M.D. Pennsylvania., 2024)

[Mexico] [Petition denied] [Habitual residence] [Failure to prove prima facie case]

Morrison, v. Chang, 2024 WL 1765675, (District Court, W.D. Washington, 2024)

[Mexico] [Petition denied] [Habitual residence] [Failure to prove prima facie case]

Nolla, v. Vargas, 2024 WL 2976749, (District Court, E.D. Wisconsin, 2024)

[France] [Motion to dismiss under Fugitive Disentitlement doctrine granted]

Paris, v. Brown, 2024 WL 3742317 (District Court, D. Oregon, 2024).

[Australia] [Motion to strike under doctrine of comity denied]

Pedersen, v. Shriver, 2024 WL 3718189 (District Court, N.D. Illinois, 2024).

[Brazil] [ Petition denied] [Retention not wrongful]

Pereira, v. Gunter, 2024 WL 733896 (District Court, M.D. Alabama, 2024)

[Temporary restraining order granted]

Rodriguez, v. Noriega, 2024 WL 689611(District Court, D. Minnesota, (2024)

[Ecuador] [Petition denied] [Habitual residence not established]

Sarzosa, v. Enriquez, 2024 WL 3976846 (District Court, S.D. Texas, 2024).

[Petition dismissed] [Lack of subject matter jurisdiction]

Saydlin, v. Ashby, 2024 WL 759302 (District Court, M.D. Pennsylvania., 2024)

[Mexico] [Petition dismissed pursuant to the Younger v. Harris abstention doctrine]

Schoner, v. Schoner, 2024 WL 3164524 (District Court, S.D. Ohio, 2024)

[Mexico] [Petition denied] [Habitual residence]

Staggers, v. Timmerman, 2024 WL 3390567 (District Court, S.D. Iowa, 2024).

[Mexico] [Petition granted] Attorneys fees and costs on default] [Not clearly inappropriate]

Martinez, v. Contreras, 2024 WL 4528208, (District Court, D. Oregon, 2024).

[Cyprus] [Motion to vacate default granted]

Isaias v. Araque, 2023 WL 11959851, United States District Court, D. New Jersey, 2023}.

Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024)[Poland][Petition denied][Grave risk of harm]

2024-09-30T13:02:00.007-04:00

In Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024) the district court denied the Petition of Sebastien Funez Mene which sought the repatriation from the United States to Poland of the parties’ only child, a minor referred to herein as “BFS,” who is alleged to have been unlawfully removed from Poland by Respondent in early 2022.

The district court explained that throughout these Hague Convention proceedings, there emerged incontrovertible evidence of Petitioner’s severe, unrelenting psychological and physical abuse of Respondent, often executed in the presence of BFS. These proceedings laid bare numerous instances of Petitioner’s psychological and, to a lesser degree, physical abuse of BFS himself, as well as of other children and animals. Despite Petitioner’s repeated (and at times perjurious) disavowals of the same, evidence surfaced of Petitioner’s extensive criminal history in France and elsewhere, including convictions stemming from years of stalking and harassment of former intimate partners and their families; this criminal history betrayed Petitioner’s propensity to disobey court mandates generally and protective orders in particular. Petitioner revealed himself to be an unreformed narcissist, incapable of acknowledging, let alone appreciating, the consequences of his actions, who has audaciously pursued (mostly groundless) legal actions against Respondent in this and other courts in total disregard for his own misconduct. The Court denied the Petition, finding that repatriation of BFS to Poland would expose the child to a grave risk of harm pursuant to Article 13(b) of the Hague Convention.

The Court explained that the only trial testimony the Court found wholly incredible was that of Petitioner. Petitioner repeatedly, and egregiously, lied to this Court throughout these proceedings, including at trial. The Court found that the degree and consistency of Petitioner’s dishonesty with this Court constitutes grounds for the blanket discrediting of his trial testimony.

Petitioner Sebastien Funez Mene was born in France in or around 1973. He lived most of his life in France. In 2015, after meeting Respondent, Petitioner moved to Poland and has resided there ever since. Respondent Kaja Sokola was born in Wroclaw, Poland on May 4, 1986. At the age of thirteen, she began modeling professionally; she thereafter lived in New York City “on and off” between the ages of sixteen and twenty-three. At twenty-three, Respondent returned to Poland to attend the University of Social Science in Wroclaw, where she received a Bachelor’s Degree in Psychology and a Master’s Degree in Clinical Psychology, completing her studies in 2014. The Respondent was a certified addiction and co-dependence psychotherapist and Gestalt psychotherapist. Respondent had a serious heart condition, namely, an aortic aneurysm, and suffers from arrhythmia. The parties’ son, BFS, was born in Poland in 2019; today, he was around five-and-a-half years old. BFS had general developmental delays for which he received a variety of special services. Petitioner and Respondent met in May 2015. the first time in person when Petitioner came to visit her in Warsaw, Poland in June 2015. Two days into his visit, Petitioner proposed to Respondent. Respondent happily accepted his proposal. Days later, on June 16, 2015, the pair were married in a church. Shortly after the wedding, Petitioner flew to Lyon, France, where he was then residing with his parents; though the sudden departure upset Respondent, Petitioner assured her that he “had an urgent and important case” that required him to get back to France immediately. In August 2015, Respondent flew to Lyon to rejoin Petitioner. She expressed a desire to meet his family, but Petitioner declined to introduce her to his parents, saying he “didn’t have the time.” After two hours in Lyon, Petitioner drove the couple over 1,700 kilometers back to Warsaw, Poland. Petitioner thereafter moved into Respondent’s Warsaw apartment, and the parties resided together for the majority of their relationship, with the exclusion of a brief period of separation in 2020-2021. The petitioner had not returned to France since the August 2015 trip. Petitioner underwent surgery on his back shortly after arriving in Poland in September 2015. The pair then had a civil wedding ceremony in a city just outside of Warsaw. At the time of the wedding, Respondent was twenty-nine years old, and Petitioner was forty-two. In 2018, Respondent became pregnant with BFS, as a result of Petitioner’s sexual abuse. The parties stipulated to the following facts: “On March 14, 2022, BFS’s country of ‘habitual residence’ was Poland as used within the context of the [ ] Convention.” “On March 14, 2022, Petitioner [ ] had rights of custody as defined by Article 5 of the [ ] Convention.” “On March 14, 2022, Petitioner [ ] would have been exercising his rights of custody pursuant to Article 3(b) of the [ ] Convention if not for the retention of BFS.” “The retention of BFS on March 14, 2022, was wrongful pursuant to Article 3 of the Hague Abduction Convention.” The Court found that Petitioner has established a prima facie case for the repatriation of BFS under the Convention.

The Court found that throughout the parties’ relationship, Petitioner was psychologically, financially, and physically abusive toward Respondent. The Court explained that Article 13(b) of the Convention relieves a court from the obligation to order repatriation where “there is a grave risk that ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). Pursuant to ICARA, to invoke the so-called “grave risk exception” or “grave risk defense,” a responding parent must establish by “clear and convincing evidence” that such a risk exists. 22 U.S.C. § 9003(e)(2)(A). Determination of whether a respondent has made this showing is “fact-intensive,” and courts in this Circuit are advised to interpret the grave risk exception “narrowly, lest it swallow the rule.” Souratgar v. Lee, 720 F.3d 96, 103-104 (2d Cir. 2013). To qualify as a “grave risk of harm” for the purposes of Article 13(b), “the potential harm to the child must be severe.” Swett, 2024 WL 2034713, at *41 (quoting Souratgar, 720 F.3d at 103) (alterations adopted). In this Circuit, the kinds of situations that constitute a grave risk of harm are those in which “the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” as opposed to those in which “repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences[.]” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). Further, whether a grave risk of harm exists depends “not only [on] the magnitude of the potential harm but also the probability that the harm will materialize.” Souratgar, 720 F.3d at 103 (citing Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005)).

Petitioner’s abuse of Respondent compelled a finding that BFS was at grave risk of harm, as did the facts that BFS had been, and would be, exposed to that abuse. Petitioner’s history of difficulty with impulse control, predilection to intense fits of anger, and physical and psychological abuse of Respondent, often in the presence of BFS, was thoroughly supported by the record. So too was Petitioner’s psychological and, at times, physical abuse of BFS himself. The Court found that Respondent had sufficiently invoked the grave risk defense. See, e.g., Davies v. Davies, 717 F. App’x 43, 48-49 (2d Cir. 2017) (summary order) (affirming grave risk determination “premised on overwhelming evidence of [petitioner]’s extreme violence and uncontrollable anger, as well as his psychological abuse of [respondent] over many years, much of which was witnessed by [the child], and the fact that [petitioner] frequently screamed and yelled at [the child] for no legitimate reason”).

The finding in Davies v. Davies is illuminative, wherein the Second Circuit affirmed the trial court’s grave risk determination. In that case, the record demonstrated that the petitioner was quick to anger at even the slightest of inconveniences, such as when the respondent “didn’t do the dishes or if the bedroom was messy or if there were clothes on the floor.” In those instances, the petitioner would scream in the respondent’s face and slam and punch doors. The record also supported the fact that the couple’s child had been a frequent witness to the petitioner’s abuse of the respondent, and that, in some instances, the petitioner had screamed at the child himself. And while the petitioner had never punched or beaten the respondent, he did exhibit violence towards others, including animals, On that record, the Second Circuit affirmed a finding of grave risk in a summary order. The petitioner in Davies and Petitioner in this case exhibited remarkably similar behavior patterns. The record showed that Petitioner’s violent behavior, which included pushing, grabbing, kicking, and hitting Respondent, exceeded that found in Davies. The record also featured several additional aggravating factors not present in Davies, namely, the few isolated instances of Petitioner’s physical abuse of BFS, as well as Petitioner’s well-established criminal history of obsessively targeting former romantic partners. Accordingly, the Court found that the repatriation of BFS to Poland would expose him to a real risk of both psychological and physical harm, and as such is inappropriate.

The Court’s analysis of the harm posed by the repatriation of BFS did not end there. The Second Circuit acknowledged that a grave risk of harm, and specifically, psychological harm, can exist where an abducted child with a cognitive disability has been enrolled in specific developmental programming in his new country and removing him from that programming would result in “a severe loss of the skills that he had successfully developed.” Ermini, 758 F.3d at 166. In that decision, facing for the first time the question of whether “this kind of psychological harm” fell within the scope of Article 13(b), the Second Circuit answered in the affirmative. The Second Circuit further noted that “sister signatories [to the Hague Convention] have found the risk of harm ... to be sufficiently grave” in similar circumstances. Here, as the Court detailed in its BFS haf general developmental delays for which he receives extensive therapy, including special education services and speech-language therapy. Moreover, since arriving in the United States, there has been a meaningful improvement in BFS’s “emotional, intellectual, [and] motor skills,” inter alia. Furthermore, as Dr. Fernandez opined, “[a]ny disruption to [this programming] would risk the development of mental health symptoms [ ] such as anxiety and depression,” which “could disrupt [BFS’s] progress.” While the Court did not opine herein on whether BFS’s loss of access to the services he currently received would, in and of itself, constitute a grave risk of harm upon which the Article 13(b) exception may be invoked, the Court did find that such loss supported the Court’s overall finding herein that repatriation poses a grave risk of harm to BFS.

The Court found that Ameliorative Measures Available in Poland Are Not Sufficient to Protect BFS. The Court heard extensive testimony regarding the Polish legal system and its ability to combat domestic abuse. Collectively, the parties’ experts painted a picture of a substantial, multifaceted system of protection for victims of domestic violence in Poland, albeit one that, in practice, operates slowly and inefficiently and bears substantial blind spots, particularly when it comes to the protection of minor children. This finding alone left the Court uncertain that the Polish justice system could eliminate the grave risk of harm posed to BFS by repatriation. The Court found that Petitioner was unlikely to abide by any protective order put in place by a Polish court upon BFS’s repatriation, rendering the salutary effect of such a measure dubious for the purposes of the grave risk analysis. See also Walsh, 221 F.3d at 221 (holding that although the court had “no doubt that [courts of the home country] would issue appropriate protective orders,” repatriation was denied in part because the spouse’s habitual disobedience of such orders would render them ineffective). The Court emphasized Petitioner’s total unwillingness to accept any responsibility for his actions and his lack of understanding of (or reflection on) the same. Petitioner himself described this case as a “domestic violence fairy tale.” (“There have been no incidents of domestic violence perpetrated by Petitioner upon Respondent, in the presence of BFS or otherwise.”)). At trial, Petitioner largely denied having any role in his and Respondent’s marital issues: for instance, he testified that he never started an argument with Respondent after the birth of BFS (a period of almost three years before Respondent fled to the United States). Moreover, when Petitioner did admit that some incident described by Respondent or Respondent’s witnesses had occurred in at least some respect, Petitioner sought to downplay what had happened or to justify his actions, or proceeded to give unresponsive testimony instead. (proceeding to tell a story about a different dog when asked about the incident in which he yelled at Respondent’s mother for feeding the parties’ dogs)).

Because Petitioner refused to accept fault or responsibility for his actions, the Court was doubtful that any therapeutic interventions available in Poland would deter Petitioner from continued abuse or reduce the potential harm to BFS posed by repatriation. See Morales v. Sarmiento, No. 23 Civ. 281 (KPE), 2023 WL 3886075, at *13 (S.D. Tex. June 8, 2023) (finding ameliorative measures insufficient where the petitioner “expressed neither remorse nor reflection about his actions”).

Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024)[Israel][Petition denied] [Habitual residence]

2024-09-30T13:01:00.002-04:00

In Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024) the Eleventh Circuit affirmed the judgment of the district court which denied the petition for return.

Brooke Goldstein and Matthew Simon, the mother and father, had three children together. All three children were born in New York, but the family often traveled domestically and internationally. Before 2020, the family lived in Brooklyn, the Hamptons, and Los Angeles. The family moved to Israel in December 2020, and halfway through 2021, the children became Israeli citizens and obtained Israeli passports. During the next few years in Israel, the children visited doctors, were enrolled in schools, and participated in extracurricular activities. The children speak English, but not Hebrew. The family went on vacation to Italy in October 2023, and during that time, Hamas attacked Israel. As a result, the family decided to move elsewhere because of the war. They settled in Miami where the children enrolled in school and participated in extracurricular activities. The children visited doctors and spent time with extended family in the area. For the 2024–2025 school year, the children are enrolled in schools in Miami and Israel.

In late 2023, the mother and father began to disagree about keeping the family in Miami versus returning to Israel. As a result, the mother filed an ICARA petition in federal district court seeking to require the father to return the children to Israel. The mother and father continued living together in Miami with their children when the mother filed her petition, alleging the father’s wrongful retention. The district court denied the petition. It determined that the children’s habitual residence was Florida. Alternatively, the district court concluded that, even if the children’s habitual residence were in Israel, the father did not wrongfully retain the children or prevent the mother from taking them to Israel.

The Court observed that a child’s habitual residence presents ... a ‘mixed question’ of law and fact—albeit barely so.” Monasky, 589 U.S. at 84. This review is considered “mixed” because it first reviews, under a de novo standard, whether the judge applied the correct legal standard to determine the habitual residence. If the trial judge correctly applies the “totality of the circumstances” standard to determine habitual residence, then it reviews the factual findings made by the court for clear error. Review for clear error is highly deferential. This deference is overcome only when “ ‘on the entire evidence’ we are ‘left with the definite and firm conviction that a mistake has been committed.’ ”

It rejected the mothers arguments that (10 Israel was the correct habitual residence of the children; (2) that the father wrongfully retained the children by refusing to approve of their return to Israel; and (3) that even though the district court did not reach the issue, that the father failed to present sufficient evidence that the children would be in grave danger if returned to Israel. The father disagrees with the mother’s contentions. The Court started and ened with the first issue. It pointed out that the Hague Convention, as implemented by ICARA, applies to “Contracting States,” which, here, are the United States and Israel. So, even though the district court’s determination was specific to Florida, we must determine whether the district court clearly erred in finding that the United States is the children’s habitual residence. Because it concluded the district court did not clearly err in finding the children’s habitual residence to be in the United States, we need not address the other issues on appeal. The district court correctly applied the totality of circumstances as the legal standard to determine habitual residence. This standard is a “fact-driven inquiry” depending on the “specific circumstances of the particular case.” Monasky, 589 U.S. at 78. The only question is whether the district court clearly erred in any fact findings. The mother points to several fact findings that she says are clearly erroneous. We disagree.

First, it rejected the mother’s argument that the district court used an incorrect wrongful retention date in its habitual residence determination. Habitual residence is determined “at the time of removal or retention[.]” Monasky, 589 U.S. at 77. To establish this date, ICARA requires the mother to prove, by a preponderance of evidence, when the father wrongfully retained the children. See Seaman, 766 F.3d at 1257. The district court found that the mother neither alleged a specific date nor did she dispute the father’s proposed date. Based on this finding, the district court determined that the date of the filed petition would serve as the date of wrongful retention. Although the record reflects a disagreement between the mother and father before the filed petition, it could not say the district court clearly erred in its finding that, if the father wrongfully retained the children, he did so as of the date of the mother’s petition.

It also rejected her argument that the district court disregarded the parties’ shared intent (or lack thereof) when they returned to the United States from Israel. Shared intent is not “dispositive[,]” Monasky, 589 U.S. at 78, and “it cannot alone transform the habitual residence.” Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). Contrary to the mother’s argument, the district court found that the parties shared an intention of staying in Florida until the war in Israel ended—or, at a minimum for six months to a year. Ample evidence in the record supported that intention, and the mother filed her petition during this period. Accordingly, it was not left with a “definite and firm conviction” that the court erred..

The mother contended that the children’s habitual residence never changed from Israel. It rejected this argument. It could not say that the record compelled that finding. The mother had to show, by a preponderance of evidence, that the children were “habitual resident[s] of [Israel] immediately before retention in the United States[.]” Chafin v. Chafin, 742 F.3d 934, at 938 (11th Cir. 2013) To determine the children’s habitual residence, the district court relied on “objective facts,” Ruiz, 392 F.3d at 1255, like the children’s enrollment in schools and extracurriculars in the United States. It also based its finding, in part, on the father’s “credible testimony,” to conclude that the children’s residence was the United States at the time of the filed petition. When a district court makes determinations based on witness credibility, we give “even greater deference to the trial court’s findings[.]”. Being “sensitive to the unique circumstances of the case[,]” Monasky, 589 U.S. at 78 (quoting Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir. 2013)), the district court also considered the family’s transitory history—they had often moved to different cities, states, and countries for short periods of time—as relevant to whether the children had established a habitual residence in the United States. In light of the unique circumstances of this case, the district court determined that the mother did not meet her burden in demonstrating that Israel was the children’s habitual residence at the time of the alleged retention, and we cannot say the district court committed clear error in making that determination.

Finally, it rejected the mother’s challenge to the district court’s assessment of the children’s acclimatization to the United States. Applying the Monasky factors, the district court considered, among other facts, the children’s extracurricular activities, the location of their belongings, and their relationship with family in Florida. While the mother argued that the youngest child could not have acclimated, it could not say the district court erred in evaluating this evidence as to the children. Facts pertaining to the children’s acclimatization to the United States are relevant to assess a child’s habitual residence, and therefore, the district court did not clearly err in its consideration of them.

Horacius v Richard, Not Reported in Fed. Rptr., 2024 WL 3580772 (11th Circuit, 2024)[Canada] [Petition granted] [Habitual residence] [Exercise of discretion to order return dispositive]

2024-09-30T12:59:00.007-04:00

In Horacius v Richard, Not Reported in Fed. Rptr., 2024 WL 3580772 (11th Circuit, 2024) the Eleventh Circuit affirmed the of the district court, granting Eric John Horacius’s petition for the return of Richard’s and Horacius’s minor child, A.H., to Canada.

Richard and Horacius were married in Canada in 2018. Horacius was a dual citizen of the United States and Canada. Richard and A.H. were Canadian citizens. At the time of A.H.’s birth, in March 2020, Richard and Horacius lived together in Quebec. Around December 2020, when A.H. was nine months old, Richard and Horacius took A.H. to the Dominican Republic to visit Richard’s parents. The parties left the Dominican Republic in February 2021 and traveled directly to Florida. From February 2021 until the alleged wrongful retention began in March 2022, A.H. lived with Richard and Horacius at the home of Richard’s sister in Miramar, Florida, “by mutual agreement of the parties.” A.H. has biological brothers, grandparents, and extended family in both Canada and Florida. While living with Richard and A.H. in Florida, Horacius: (1) obtained a Florida driver’s license using Richard’s sister’s Miramar address; (2) applied for and received a notary commission in Florida using the Miramar address; (3) obtained a Florida concealed weapons permit using the Miramar address; and (4) registered to vote in Florida and maintained active voter status there at the time of trial. Horacius also filed affidavits of support with United States immigration authorities for Richard and A.H. to become permanent United States residents, and he listed the Miramar address as his residence on the affidavits. In January 2022, after A.H. had been living in Florida for nearly a year, Horacius left and returned to Canada alone. The following month, in February 2022, Richard filed a divorce petition against Horacius in Florida state court. Horacius then purchased and sent airline tickets for Richard and A.H. to return to Canada around March 2022, but Richard refused to return.

Richard’s refusal to return with A.H. to Canada, in March 2022, marked the point at which the alleged wrongful retention began. Horacius filed his ICARA petition in November 2023. By the time of trial, in January 2024, A.H. had been living in Florida for nearly three years. The district court granted the petition.

On appeal, Richard argued that the district court erred in (1) concluding that A.H.’s habitual residence was Canada; (2) determining that she had violated Horacius’s rights of custody under Canadian law; and (3) rejecting her defense based on A.H.’s well-settled status in the United States. The Eleventh Circuit affirmed the district court’s factual findings and its exercise of discretion to return A.H. to Canada.

Although neither the Hague Convention nor ICARA defines the term “habitual residence,” precedent interpreting the phrase has looked to whether a child has lived in the place with “a sufficient degree of continuity to be properly described as settled.” (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1252 (11th Cir. 2004)). When analyzing whether a child’s habitual residence has changed from one country to another, we have “held that ‘[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.’ ” “The ‘unilateral intent of a single parent,’ ” is not enough, standing alone, “to change a child’s habitual residence.”. Instead, “a court must ... determine whether the parents or guardians ... shared an intent to change the child’s habitual residence.” Richard’s first argument was that the district court erred in concluding that A.H.’s habitual residence was Canada. She argued that A.H. spent significantly more time in the United States than in Canada, and she pointed to several facts in the record that supported the conclusion that she and Horacius shared an intent to live in the United States. She noted that she and Horacius had obtained an early termination of the lease of their condominium in Canada; that Horacius obtained a Florida driver’s license and Florida notary public commission using their address in Florida; and that Horacius sought to buy a home in Florida. The district court found Richard not to be credible regarding the parties’ intention to relocate to the United States, and the Court held it must afford that finding significant deference. The district court also correctly identified the applicable “totality-of-the-circumstances standard,” so review of its conclusion about A.H.’s habitual residence was only for clear error. Monasky, 589 U.S. at 84. While review of the record evidence showed that it is a close call whether A.H.’s habitual residence was Canada, rather than the United States, it did not have a “definite and firm conviction that a mistake has been committed.” Instead, the record contains sufficient evidence to support the district court’s conclusion that Canada was A.H.’s habitual residence. Among this evidence was the fact that Richard stated that the family’s stay would be temporary to obtain a B-2 visa when she entered the United States. In addition, Horacius’s and Richard’s belongings remained in a storage unit in Canada during their stay in Florida. Although Richard applied for American citizenship during her time in Florida, that application did not weigh heavily in her favor, as citizenship and residence are not coterminous. For instance, Horacius was a citizen of both Canada and the United States but was only a resident of Canada. Given the facts and the district court’s credibility determination, it could not be said that the district court’s view of the evidence was an impermissible one. Therefore, Richard had not shown clear error in the district court’s conclusion that A.H.’s habitual residence was Canada.

Richard did not dispute that Horacius had custody rights relating to A.H. under Canadian law, nor argued that he was not exercising those rights when the retention of A.H. began. She only disputed that her retention of A.H. breached Horacius’s custody rights. However, she conceded at trial that Horacius “should be involved in major decisions involving A.H.” and that she had made “major decisions such as schooling and medical treatment for A.H. without first speaking” to him. Richard’s counsel also conceded at oral argument that Horacius was attempting to exercise his rights of custody both before and after he left Florida, including by insisting that A.H. return to Canada. The Court concluded that these concessions, when considered with the facts described above and our review of Canadian law, show that the district court’s finding that A.H.’s retention violated Horacius’s custody rights was, again, a “permissible view[ ] of the evidence.”.Because Richard had not shown clear error in this respect either, the Court affirmed the district court’s findings that A.H.’s retention breached Horacius’s “custody rights under the law of Canada” and that Horacius “had actually been exercising those custody rights at the time of [A.H.’s] retention.” Horacius, therefore, established the second and third elements of his prima facie case.

The district court found that Richard had not shown that A.H. was well-settled in the United States. Even if she had, the district court ruled that it would exercise its discretion to order A.H.’s return. See Fernandez, 909 F.3d at 363. Because the latter ruling was dispositive, the Court did not address Richard’s well-settled affirmative defense. See Fla. Wildlife Fed’n Inc. v. United States Army Corps of Eng’rs, 859 F.3d 1306, 1316 (“We may affirm the district court’s ruling on any basis the record supports.”). Richard’s briefing on appeal does not challenge the district court’s alternative conclusion that it would exercise its discretion and order A.H. returned to Canada notwithstanding Richard’s well-settled defense. Thus, it concluded that any challenge to the district court’s ruling on that front was forfeited.

Castang v Kim, Not Reported in Fed. Rptr., 2024 WL 3949445 (11th Cir., 2024)[France][Petition granted][Attorneys fees and Costs][Dire financial condition not clearly inappropriate]

2024-09-30T12:58:00.000-04:00

In Castang v Kim, Not Reported in Fed. Rptr., 2024 WL 3949445 (11^th Cir., 2024) the Eleventh Circuit held that the district court did not abuse its discretion in awarding attorneys fees.

Igor Castang and Katherine Kim had a child who was born in France in 2018. In 2021, a French court directed the two to share custody of the child. Their relationship deteriorated, and without telling Castang, Kim took the child to Atlanta, Georgia, in 2022. Castang filed an ICARA petition, which the district court granted. It ordered the father to be allowed to take physical custody of the child to return the child to France. Kim appealed and the Eleventh Circuit affirmed the district court. Castang then moved the district court for an award of attorney’s fees and costs under Section 9007(b)(3), which provides that after ordering the return of a child, the district court “shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Kim opposed that motion. The district court granted Castang’s motion but reduced the fee award based on Kim’s financial hardship. It first determined that the proper award based on the hours Castang’s attorneys worked, their hourly rates, and other costs incurred was $144,513. It then considered Kim’s financial circumstances—that she represented that she had no income or assets, could not afford to travel to visit her child in France, was $5,613.87 in debt, her bank account had a monthly deposit of $430.77, and withdrawals of $392, and that she had no annual income. Given her situation, the district court determined that an award of $144,513 was “clearly inappropriate” because it would cause her a significant financial hardship that would impact her ability to care for her child, so it reduced the award by one-third to $96,342. It reasoned that although she was in a dire financial position, she likely had some income to sustain her living in the United States, and she presented no evidence that she could not work in the United States to earn income and pay an award.

The Court explained that it reviews an award of attorney’s fees for abuse of discretion, and questions of law in reaching a fee award de novo. Kim’s first argument that ICARA does not allow for the reduction of a fee award was rejected as no authority supported Kim’s argument. District courts have the authority to reduce a requested award of attorney’s fees and costs.

Kim’s second argument that the district court lacked sufficient evidence to support its pre-reduction award of $144,513 was rejected. She argued that the district court impermissibly relied on affidavits that opined on other attorneys’ hours worked and had no other evidence to consider for those hours. In calculating an award of fees and costs, district courts may consider billing records and affidavits, and they may rely on their knowledge and expertise in determining a fee award. See Barnes, 168 F.3d at 428. And when, as here, a party opposing a fee award makes a specific objection, the district court’s order “should consist of more than conclusory statements.” But “[u]ltimately, the computation of a fee award is necessarily an exercise of judgment, because ‘[t]here is no precise rule or formula for making these determinations.’ ” It could not be said that the district court abused its discretion in determining that this was a reasonable amount. And even if it did, given the district court’s reduction of the award to significantly less than the $122,199.50 for which the district court considered affidavits, any error was harmless. See Skanska USA Civil Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1309 (11th Cir. 2023) (“An error is harmless unless ‘it affects the substantial rights of the parties’ such that the reviewing court cannot confidently say that ‘the judgment was not substantially swayed by the error.’ ”).

Finally, it rejected Kim’s argument that she presented evidence that any award would impose a financial hardship on her that would prevent her from caring for her child, and thus any award was “clearly inappropriate.” She pointed to evidence that she had no income or assets, could not afford to travel to visit her child in France, was $5,613.87 in debt, had a monthly deposit of $430.77 and withdrawals of $392, and had no annual income. The Court noted that it has recognized that a relevant consideration for whether an award is clearly inappropriate is whether “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Rath, 898 F.3d at 1311. Although it had not considered what qualifies as a “financial hardship,” district courts in the circuit had. They consider the respondent’s financial status, current and future employment, and any special circumstances that could prevent the respondent from paying an award. And when district courts find that a requested fee award would impose a financial hardship, they often reduce the fee award rather than declining to impose an award altogether. The district court found that an award of $144,513 would impose a financial hardship on Kim that would impair her ability to care for her child, so it reduced the award by one-third. In coming to that conclusion, it considered the evidence Kim now relied on about her financial status. It also reasoned that she likely had some source of income to sustain herself and the absence of any evidence that she could not work in the United States. The Court acknowledged that Kim presented evidence of a dire financial position, but could not say the district court abused its discretion in concluding that the reduced award was not “clearly inappropriate.” Absent some evidence of an inability to earn income, the district court was within its discretion to find that Kim had the ability to work to support herself and pay the costs and fees.

Lomanto v. Agbelusi, 2024 WL 3342415 (2d Cir., 2024) [Spain][Petition denied][now settled defense][age & Maturity defense]

2024-07-14T17:45:00.002-04:00

In Lomanto v. Agbelusi, 2024 WL 3342415 (2d Cir., 2024) the Second Circuit affirmed an order of the district court denying Lomanto’s petition for repatriation to Spain of his two minor children, R.A.L. and S.M.L. The parties were both non-American citizens who met in Spain in 2006. They resided there together and had two children. On June 26, 2021, Agbelusi left Spain with R.A.L. and S.M.L., who were then twelve and four, to visit her mother in New York for the summer. Lomanto had provided his written permission for the children to travel with their mother to the United States. On August 24, 2021, Agbelusi notified Lomanto that she planned to stay in New York permanently with the children. Lomanto objected and initiated legal proceedings in Spain, in which Agbelusi participated, to try to obtain the return of the children. In September 2021, the Spanish trial court issued an order concluding that the habitual residence of the children was Spain, that Lomanto did not consent to the children’s staying in New York, and that Agbelusi should return them to Spain. Agbelusi filed an appeal, which was unsuccessful. On August 26, 2022, Lomanto filed the current action in federal district court in New York.

Although there was no dispute that a prima facie case of wrongful retention was established under the Hague Convention, the district court held that Agbelusi met her burden to establish multiple affirmative defenses to return of the children, which Lomanto challenged on appeal. In addition, Lomanto maintained that even if these defenses were established, the district court nevertheless erred by (1) declining to exercise its discretion to repatriate the children notwithstanding Agbelusi’s defenses, (2) failing to accord comity to the Spanish court orders, and (3) proceeding with the first day of trial without a Spanish-language interpreter.

The Second Circuit reviewed the district court’s interpretation of the Convention and its application to the facts de novo. It reviewed its factual determinations only for clear error. The clear error standard is deferential, and “[w]e must accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).

The Court noted that Article 12 of the Hague Convention requires a court to order the repatriation of a child if Hague Convention proceedings are initiated within one year of the child’s wrongful removal or retention unless an exception applies. Hague Convention, art. 12. If the proceedings are commenced after the one-year period, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this exception “by a preponderance of the evidence.” 22 U.S.C. § 9003(e)(2)(B). The district court ruled that Lomanto’s petition was filed more than a year after the wrongful retention of the two children and that the children were “now settled” in their new environment. The Second Circuit saw no reason to disturb the district court’s finding that wrongful retention began on August 24, 2021, the date that Lomanto learned that the children would be staying in New York, thus making his petition filed on August 26, 2022, beyond the one-year deadline. This finding was not clearly erroneous. The district court based its finding on Lomanto’s communication with R.A.L. on August 24, 2021, his communication with Agbelusi later that day, and the police reports that Lomanto filed the next day on August 25, 2021, where he reported that the children were missing as of August 24, 2021, and that he “want[ed] to put on record that he ha[d] not given his consent for his children to stay” in the United States. These events made clear that Agbelusi advised Lomanto on August 24, 2021, that she would retain the children in New York over his objection. In a closely analogous case, we affirmed a district court’s determination that the date the child’s mother advised the father that she would not be returning with the children” to their country of habitual residence was the date of wrongful retention. The Second Circuit held that the district court did not err in declining to adopt one of the later dates Lomanto proposed as the beginning of the children’s wrongful retention—including the date Lomanto asked Agbelusi via text message to return the children or the date the parties originally had agreed that the children would return. wrongful “retention” occurs on a fixed date—it is not a continuing act. Marks, 876 F.3d at 422. And on this record, for the reasons noted above, the district court properly found that Agbelusi’s wrongful retention began on August 24, 2021. Thus, the district court correctly concluded that Lomanto’s filing of Hague Convention proceedings on August 26, 2022, occurred after the one-year period that began on August 24, 2021.

The Second Circuit identified no error in the district court’s conclusion that R.A.L. and S.M.L. were “now settled” in New York. Because the now-settled analysis is a mixed question of fact and law, the district court’s factual findings as to each of the relevant factors are reviewed for clear error, while its application of the Convention based on those factual findings is reviewed de novo. See Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001). The district court carefully considered the relevant factors, under Lozano v. Alvarez, including the age of the children, the stability of their residence in the new environment, whether they attend school consistently, whether they participate regularly in community or extracurricular activities, the respondent’s employment and financial stability, whether the children have friends and relatives in the new environment, and the immigration status of the children and the respondent. 697 F.3d 41, 57 (2d Cir. 2012). Upon reviewing the record as a whole, the Second Circuit agreed that R.A.L. and S.M.L. are now settled in the United States. The record evidence, including the children’s regular school attendance, involvement in their church community, and strong relationships with friends and relatives in the area, all supported the conclusion that they were now settled. And, although “a shelter may not be an ideal environment,” the district court found “in this case” that the shelter where the children live with their mother “is a stable environment that provides [the family] with their own apartment and also provides community and resources,” such as summer camp and an afterschool program. Even if their unresolved immigration status counseled against a conclusion that they were now settled, in the overall balance, the Second Circuit concluded that the factors as a whole militate toward a now-settled finding, and thus, the district court correctly applied the exception. See Lozano, 697 F.3d at 57–58 (requiring courts to “balance many factors” and declining to give controlling weight to a child’s lack of lawful immigration status).

The Second Circuit pointed out that Article 13 of the Hague Convention “permits a court to refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Blondin, 238 F.3d at 166. Under this provision, a court may refuse repatriation solely based on a considered objection to returning by a sufficiently mature child. Whether a child is “old enough and mature enough” for his “views to be considered” is a question of fact, as is the determination that a child actually objects to returning to his country of habitual residence. The Second Circuit identified no error in the district court’s conclusion that the older child, R.A.L., was of sufficient age and maturity to “take account of his views,” that his objection was a result of his own “independent thinking,” and that his articulation of reasons for not wanting to return to Spain was “rational, logical, and clear.” The court made its findings about R.A.L.’s objection based on the expert evaluation of a licensed clinical psychologist and the court’s own in camera interview with the children. Insofar as Lomanto characterized R.A.L.’s views as expressing only a “preference” for remaining in New York, rather than an “objection” to returning to Spain, this was a factual determination on which the court defers to the district court, which engaged directly with the child, absent clear error. In light of R.A.L.’s professed concern that, if he were returned to Spain, his father would not permit him to see his mother—a concern that he reiterated even after the district court told him that his mother could seek custody or visitation in Spain—the court identified no such error or abuse of discretion.

The court rejected Lomanto’s argument that even if the district court found that the children were settled in the United States and that R.A.L. objected to returning to Spain, the district court nevertheless abused its discretion in not ordering the children to return to Spain given Agbelusi’s “premeditated abduction” of the children, her “purposeful[ ] estrang[ement] [of the children] from their father, with whom they had a close and loving relationship,” and her defiance of orders from the Spanish courts. The court stated that while a district court may exercise its discretion to order the return of children to further the aims of the Convention even in cases where affirmative defenses are established, see Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999), here, the district court declined to do so, explaining that, in addition to deterrence of wrongful removal or retention, the Convention has “an interest in the welfare of the children and their interests in remaining settled.. Thus, the district court denied repatriation based on the children’s interests in remaining settled together in their new close-knit community in New York, and based on R.A.L.’s objection to returning to Spain. The district court’s refusal to order return was not an abuse of discretion.

The Second Circuit rejected Lomanto’s argument that the district court erred in failing to accord comity to the Spanish court orders that found that Agbelusi had wrongfully retained the children and ordered that she return them to Spain. The district court correctly determined that the Spanish courts had not purported to rule on Agbelusi’s affirmative defenses but had determined only that the children’s retention was wrongful, and that the district court therefore had jurisdiction to adjudicate Agbelusi’s defenses.

Tereshchenko v Karimi, 2024 WL 3342759 (S.D. New York, 2024) [Ukraine][Petition granted][Necessary Costs]

2024-07-14T17:42:00.006-04:00

In Tereshchenko v Karimi, 2024 WL 3342759 (S.D. New York, 2024) the district court granted the motion of the petitioner for attorneys’ fees and costs pursuant to Article 26 of the Hague Convention (“Article 26”) and 22 U.S.C. § 9007(b)(3).

Petitioner filed this action on March 8, 2023, On January 8, 2024, following an evidentiary hearing, this Court granted Tereshchenko’s petition. Tereshchenko v. Karimi, No. 23cv2006 (DLC), 2024 WL 80427 (S.D.N.Y. Jan. 8, 2024). On March 24, Tereshchenko moved for reimbursement of his attorneys’ fees and the costs paid by his attorneys on his behalf. Tereshchenko sought reimbursement of $406,486.92. On May 16, 2024, the Second Circuit Court of Appeals affirmed the Court’s January 8 Order granting Tereshchenko’s petition. Tereshchenko v. Karimi, 102 F.4th 111, 2024 WL 2202151 (2d Cir. May 16, 2024). The Court of Appeals required, however, that the Court’s Order be tailored in recognition of the Ukrainian courts’ authority over an ultimate custody determination.

The court observed that a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). Courts apply the “lodestar method” to determine the appropriate value of attorneys’ fees and costs. Fresno Cnty. Emp. Ret. Assoc. v. Isaacson/Weaver Family Trust, 925 F.3d 63, 67 (2d Cir. 2019). The lodestar figure is calculated “by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” H.C. v. New York City Dep’t. of Educ., 71 F.4th 120, 126 (2d Cir. 2023).

The petitioner sought an award of “reasonable hourly rates” for his attorneys. The “reasonable hourly rate” is “the rate a paying client would be willing to pay after considering all pertinent factors, including the Johnson factors.” The Johnson factors, derived from Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), are: “[t]he time and labor required”; “[t]he novelty and difficulty of the questions”; “[t]he skill requisite to perform the legal service properly”; “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee”; “[w]hether the fee is fixed or contingent”; “[t]ime limits imposed by the client or the circumstances”; “[t]he amount involved and the results obtained”; the experience, reputation, and skill of the attorneys; whether the case is undesirable and may not be “pleasantly received by the community” or the attorney’s contemporaries; “[t]he nature and length of the professional relationship with the client”; and “[a]wards in similar cases.” In its determination of the “reasonable hourly rate”, a court may consider the market rate for representation. A court may look to recent cases in its district to “determine the prevailing market rate” for attorneys in the New York area who are experienced in the relevant law.

The petitioner proposed the following rates for the compensation of his attorneys: $650 for Richard Min and Daniel Lipschutz, $550 for Michael Banuchis, and $400 for Samantha Jacobson. These rates exceed the prevailing rates for Hague Convention cases in the Southern District of New York. The court noted that Courts in the Southern District of New York have not awarded more than $425 per hour to attorneys in Hague Convention cases. In 2022, one court found that a rate of $425 per hour was appropriate for Mr. Min’s representation in a Hague Convention Case. Webster-Colquhoun v. Colquhoun, No. 21-cv-7101 (KWK), 2022 WL 2866470, at *5 (S.D.N.Y. July 21, 2022). In the same case, the court found that $325 per hour was appropriate for Mr. Banuchis’s representation and $200 per hour was appropriate for Ms. Jacobson’s representation. In 2021, another court found a rate of $425 per hour was appropriate for an attorney who had been practicing for over 40 years and had handled hundreds of international child abduction and Hague Convention cases. Grano v. Martin, No. 19-cv-6970 (CS), 2021 WL 3500164, at *3 (S.D.N.Y. Aug. 9, 2021). The court also found that a rate of $400 per hour was appropriate for an attorney who had been practicing for 40 years but had very limited experience with Hague Convention cases. Id. Finally, in 2020, a third court found that a rate of $425 per hour was appropriate for an attorney who had 30 years of experience litigating Hague Convention cases. Nissim v. Kirsh, No. 1:18-cv-11520 (ALC), 2020 WL 3496988, at *3 (S.D.N.Y. June 29, 2020). See also Duran-Peralta v. Luna, No. 16cv7939 (JSR), 2018 WL 1801297 at *2 (S.D.N.Y. Apr. 2, 2018) (collecting cases).

The Court found that a rate of $425 per hour for Mr. Min was reasonable. A rate of $400 per hour was reasonable for Mr. Lipschutz. Awards of $325 per hour for Mr. Banuchis and $200 per hour for Ms. Jacobson were appropriate. Consideration of the Johnson factors does not alter these rates. The petitioner also sought an award for the few hours billed by another associate and two paralegals in this case. A billing rate of $200 per hour was appropriate for the second associate. Furthermore, a rate of $129 per hour was reasonable for a paralegal. See Grano, 2021 WL 3500164, at *4 ($129); Sanguineti v. Boqvist, No. 15cv3159 (PKC), 2016 WL 1466552, at *4 (S.D.N.Y. Apr. 14, 2016) ($129). The rate of $129 per hour was appropriate for both paralegals in this case.

The Court explained that in determining a reasonable number of hours spent on a case, a court may exclude “documented hours that are excessive, redundant, or otherwise unnecessary.” Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). A court may “decrease the total award from the claimed amount because of vagueness, inconsistencies, and other deficiencies in the billing records.” The court may also “apply an across-the-board reduction to account for time spent on clerical tasks.” Their total proposed number of hours, 658.53, spread across three partners, two associates, and two paralegals, was reasonable for the amount of labor spent litigating this case.

The respondent argued that a substantial award to the petitioner was inappropriate. Section 9007 shifts the burden onto a losing respondent in a return action to show why an award of necessary expenses would be clearly inappropriate. Ozaltin, 708 F.3d at 375 (citing § 9007(b)(3)). When determining whether expenses are “clearly inappropriate,” a court may consider “the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016). A respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.”

The Court found that the amount awarded to the petitioner for his attorneys’ fees and costs was not clearly inappropriate. In this case, the respondent, not the petitioner, bears responsibility for the length of this case and the resulting hours spent by Tereshchenko’s legal team. Karimi evaded service for over two months, refused to abide by the decision of the District Court of the City of Odesa in Ukraine after having agreed to accept whatever it would decide, and presented new defenses on the eve of trial. No evidence was presented to show that the respondent was unable to pay the award.

In her opposition, the respondent argued that the award was “clearly inappropriate” because she acted in good faith when removing the children from Ukraine. Karimi relied on Ozaltin for the proposition that her good faith decision should be factored into a consideration of whether fees and costs are appropriate. But her reliance on this law was misplaced. The court in Ozaltin found that a mother’s decision to remove her children from their country of habitual residence was in good faith because custody decisions made by that country’s courts suggested the mother could move to the United States with the children. That has never been the case here.

Galaviz v Reyes, --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024)[Mexico] [Petition granted] [Fundamental Freedoms Article 20 defense and Grave risk of harm not established] [This Opinion was substituted for the October 11, 2023 opinion]

2024-06-30T15:52:00.003-04:00

In Galaviz v Reyes, --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024) Abigail Galaviz and Luis Reyes had a son and daughter while living in Mexico. The young children remained in that country with Galaviz when their parents separated. In July 2021, Reyes took the children to El Paso, Texas, and refused to return them. Galaviz filed an action in federal district court requesting the return of the children to Mexico under the Hague Convention. Reyes raised affirmative defenses under Articles 20 and 13(b), asserting that returning the children would violate a fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court ruled in favor of Reyes and denied Galaviz’s request for the return of the children. The Fifth Circuit reversed and remanded.

After Galaviz and Reyes separated, the children remained in Juarez, Mexico under Galaviz’s care. Reyes moved out of the home and relocated to El Paso, Texas. In July 2021, Reyes took the children to El Paso for an appointment with a physician and refused to return them to their mother or Mexico. In October 2021, Galaviz submitted an Application for the Return of her Children to the United States Central Authority under the Hague Convention. In November, Galaviz filed a Verified Petition for the Return of the Children in the Western District of Texas. At the time of the proceedings in district court, there were no formal custody or possession court orders in place governing the parents’ custodial rights. The son was five years old, and the daughter was four years old. The district court held a trial and Reyes conceded that Galaviz met her burden of establishing a prima facie case of wrongful removal by a preponderance of the evidence. The burden then shifted to Reyes, who opposed the return, to establish an exception. Reyes raised exceptions set forth in Articles 20 and 13(b) of the Convention.

As to Reyes’s Article 20 defense, the district court concluded that “[Galaviz’s] inability to be present with the children, as required so that they can attend school, effectively denied the children the fundamental right to an education,” and “[t]he denial of an education to two special needs children in their most formative years utterly shocks the conscience of the court.” As to Reyes’s Article 13(b) defense, the court concluded that “[t]he incidents of abuse and neglect collectively and the strong suggestion of sexual abuse constitute a grave risk of physical and psychological harm and an intolerable situation should the children return to Juarez.” The court concluded that Reyes had established the exceptions upon which he relied by clear and convincing evidence and denied Galaviz’s request for the return of the children to Mexico.

The Fifth Circuit noted that the Article 20 defense allows repatriation to be denied when it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.’ ” A parent resisting repatriation of a child based on Article 20 has the burden of establishing by clear and convincing evidence that this exception applies. Article 20 is to be “restrictively interpreted and applied.”

The Court first determined the applicable standard of review. In recent years, the Supreme Court has held in a Hague Convention case that “[m]ixed questions [of law and fact] are not all alike.” The Court has explained that “[i]n short, the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.” In Monasky v. Taglieri the Court held that the location of a child’s “habitual residence” within the meaning of the Hague Convention “depends on the totality of the circumstances specific to the case,” and the district court’s determination of “habitual residence” “is subject to deferential appellate review for clear error.” It appeared that whether repatriation of a child should be denied because “it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’ ” presents a question that is quite different from the location of a child’s “habitual residence.”

The court explained that to be able to refuse to return a child based on Article 20, it will be necessary to show that the fundamental principles of the requested State concerning the subject-matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible, with these principles. An inquiry of that nature would be a legal one, once the underlying facts were determined. It concluded that determining whether “the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” would not permit the return of a child entails primarily legal work. Accordingly, it reviews the district court’s findings of fact regarding Reyes’ invocation of Article 20 for clear error, bearing in mind that the heightened clear-and-convincing-evidence burden applies, and it reviews de novo whether the circumstances permit a United States court to decline to return a child under Article 20.

The Court held that Article 20 is to be “restrictively interpreted and applied.” It “is not to be used ... as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.” It noted that the district court found that while in Galaviz’s care, the children did not attend preschool or kindergarten due to the school’s requirement that Galaviz attend school with them to help with their special needs. Because Galaviz did not comply with this requirement, the children did not attend school. However, the district court did not find that the children would be entirely deprived of an education if returned to Mexico. The court acknowledged that “the law in Mexico may provide for special education.”

These findings did not establish an Article 20 exception. The district court focused primarily on Galaviz’s actions or inactions regarding the children’s education, not on laws or policies of the United States that would prohibit the return of the children. By focusing on Galaviz’s actions or inactions, the district court essentially made an impermissible custody decision. It held that Reyes did not present clear and convincing evidence demonstrating that, as a matter of law, the return of the children would utterly shock the conscience or offend all notions of due process.

The Fifth Circuit held that an Article 13(b) defense determination is a mixed question of law and fact. Because it concluded that the district court’s finding that Reyes established an exception under Article 13(b) cannot stand under either de novo or clear error review, it did not resolve which standard of review is required.

The Court explained that under Article 13(b), a court in its discretion need not order a child returned if there is a grave risk that return would expose the child to physical harm or otherwise place the child in an intolerable situation.” “The person opposing the child’s return must show that the risk to the child is grave, not merely serious.” “The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” “The alleged harm ‘must be a great deal more than minimal’ and ‘greater than would normally be expected on taking a child away from one parent and passing him to another.’ ” A district court’s factual finding is clearly erroneous “when ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” The district court’s conclusion that evidence of neglect established a grave risk of harm under the clear and convincing standard was clearly erroneous. Article 13(b) focuses on the risk of harm posed by the child’s repatriation. is not an invitation to determine whether custody with one parent would be in the best interest of the child. The question is whether there is clear and convincing evidence that return would expose the child to a grave risk of harm, not whether a parent is a worthy custodian. The evidence Reyes presented that Galaviz neglected the children’s medical care was not sufficient to support a finding under the clear-and-convincing burden of proof that returning the children to Mexico would present a grave risk of physical harm. Reyes presented evidence that the children had “rotten molars” when in Galaviz’s care and when brought to the United States. He also presented evidence that, when brought to the United States, the children were behind on their vaccinations, their daughter had hearing loss requiring hearing aids, and their son had an astigmatism requiring eyeglasses. On this record, it was clearly erroneous for the district court to conclude that there was clear and convincing evidence that a grave risk of physical harm arose from the medical care the children would obtain if repatriated to Mexico. Similarly, it was clearly erroneous to base a grave risk finding on Reyes’s evidence with respect to the allegations of unsuitable childcare, poor hygiene, and lack of educational opportunities. That evidence did not clearly and convincingly demonstrate a grave risk of physical or psychological harm. Reyes presented no evidence that these hygiene issues or the older daughters’ supervision of the children would expose the children to a grave risk or intolerable situation. If a child’s standard of living provided clear and convincing evidence of a grave risk of harm, “parents in more developed countries would have unchecked power to abduct children from countries with a lower standard of living.”

The Fifth Circuit found that the district court also clearly erred in concluding that Galaviz was the cause of the children’s regression. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of proving clear and convincing evidence. The behavioral regressions by the children could be attributed to the fact they are very young, have special needs, and were separated from their father—an “equally plausible explanation[ ]” that undermined the district court’s finding. The evidence was not clear and convincing that Galaviz was the cause of regression.

Finally, the district court also clearly erred by concluding Reyes presented clear and convincing evidence that the children’s return to Mexico would pose a grave risk of harm by impeding their development. There was no evidence before the district court that programs, classes, or educational opportunities for autistic children are unavailable in Mexico. Nor was there evidence that returning to Mexico would irreversibly impede the children’s development. The district court found that Galaviz attempted to enroll her children in a special needs school in Mexico, which required Galaviz to be present during the children’s classes. The district court concluded that Galaviz’s inability to be present at the school effectively denied the children their right to an education.

The district court clearly erred in concluding the evidence related to physical abuse clearly and convincingly established a grave risk of harm. “Sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk” under the clear and convincing burden. Cases concluding that the grave risk exception has been met often involve the use of physical force that is repetitive or severe. The district court in the present case found that the children had been physically abused based on the children’s behavior and on the testimony of Galaviz’s former friend. The court found that the children cowered and protected their heads when bathing, that the son reacted to protect his sister when she spilled her beverage and that he covered her mouth to quiet her when she cried. Reyes testified that he never saw Galaviz hit the children, but that he observed her yell at them. Reyes stated that he would attempt to conduct video conferences between Galaviz and the children, but that they would become very upset and cry and throw the phone at him. None of this evidence rose to the level of clear and convincing evidence of a grave risk of physical or psychological harm if the children are returned to Mexico. There were also other plausible explanations for the children’s behavior. Reyes’s sister acknowledged that it was possible the children did not want to be bathed by someone they didn’t know. The children could have behaved fearfully because of prior actions by Reyes—Galaviz testified that Reyes had punched her, tried to strangle her, caused swelling, bruises, black eyes, a busted lip, and a broken nose. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of providing clear and convincing evidence.

Galaviz’s former friend testified that she witnessed Galaviz hit the children “[n]ot in their face but in their ... thigh.” She stated that Galaviz hit her son with a foam slipper to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult daughter when the latter was confronted about spanking her young brother. She also testified that Galaviz would hit the children because they would cry. This evidence represents the type of “[s]poradic or isolated incidents of physical discipline” that courts have rejected as establishing an Article 13(b) exception. Without more, the district court clearly erred in concluding this evidence established a grave risk of harm by clear and convincing evidence.

Lastly, the district court clearly erred in determining that there was clear and convincing evidence of sexual abuse. The district court characterized the evidence as indicating merely a “strong suggestion of sexual abuse.” This “strong suggestion” was based on a finding that Reyes received anonymous text messages stating that the children had been sexually abused with Galaviz’s knowledge, a police report filed by Reyes, and a police report narrative in which a physician expressed their belief that the son could have been sexually abused. The district court, however, did not admit the text messages or the police reports for the truth of the matter asserted therein, and their content was not presented in an otherwise admissible form. The only evidence offered to establish the alleged sexual assault was Reyes’s own testimony. This evidence did not meet the clear and convincing evidence burden. Simply put, the only evidence of sexual abuse is the father’s testimony that he suspected sexual abuse. Accordingly, the district court clearly erred in concluding this was clear and convincing evidence of sexual abuse.