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This pocket guide is designed for transferee judges managing MDL proceedings that involve multiple, related class actions.

The guide assists transferee judges from the very beginning of MDL proceedings, before the judges determine whether the main focus of the litigation will be on class-related issues. Even if no class is ultimately certified, this guide can help transferee judges organize the litigation and set it on a smooth course. Topics addressed include categorization of claims and defenses, organization of counsel, the sequencing of motions practice, and settlement.

Archival Copy on File

Manual for Litigation Management and Cost and Delay Reduction
Judicial Conference of the United States, 1992, 351 pages
Prepared in response to a mandate of the Civil Justice Reform Act of 1990, the manual offers judges an arsenal of management techniques for every phase of civil litigation. It includes forty-three sample forms experienced judges have found useful in their courts as well as an overview of case-management theory and practice.

Implementation of Disclosure in United States District Courts, with Specific Attention to Courts' Responses to Selected Amendments to Federal Rule of Civil Procedure 26
Federal Judicial Center, 1994, 29 pages
Report on the federal district courts' responses to the 1993 amendments to Federal Rule of Civil Procedure 26. Tables describe courts' local rules, general orders, and CJRA plans by indicating which of five key provisions of Rule 26 are in effect.

Civil Justice Reform Act Report: Development and Implementation of Plans by the United States District Courts
Judicial Conference of the United States, December 1, 1994, 50 pages
Prepared by the Judicial Conference of the United States. Transmitted to Congress by the director of the Administrative Office of the United States Courts (includes Appendices I, III, and IV).

Appendix II to the Civil Justice Reform Act Report of the Judicial Conference of the United States, Report to Congress, December 1, 1994
Judicial Conference of the United States, 1995, 390 pages
Appendix II was a prepublication version of the Federal Judicial Center Sourcebook on the Civil Justice Reform Act Expense and Delay Reduction Plans (1995).

The Civil Justice Reform Act Expense and Delay Reduction Plan: A Sourcebook
Federal Judicial Center, 1995, 361 pages
An overview of the U.S. district courts' Civil Justice Reform Act expense and delay reduction plans. Seventeen tables summarize the courts' civil case management procedures and techniques in terms of common elements, such as service of process, motions, and alternative dispute resolution. Section 480 of Title 28 requires the Federal judicial Center and the Administrative Office to develop and conduct comprehensive education and training programs to ensure that court personnel are familiar with litigation management techniques that reduce cost and delay in civil litigation. This task was accomplished through educational programs, technical support, and publications, including this sourcebook.

ADR and Settlement in the Federal District Courts: A Sourcebook for Judges and Lawyers
Federal Judicial Center, 1996, 308 pages
Based on a survey of the federal district courts and an analysis of their rules, this sourcebook describes in detail how each court's ADR and settlement procedures functioned at the time of the survey. It also provides information for judges who design and refer cases to dispute resolution programs, for lawyers and litigants who face increasingly complex dispute resolution choices and obligations, and for policy makers and researchers who evaluate current programs and make recommendations for the future. Section 480 of Title 28 requires the Federal judicial Center and the Administrative Office to develop and conduct comprehensive education and training programs to ensure that court personnel are familiar with litigation management techniques that reduce cost and delay in civil litigation. This task was accomplished through educational programs, technical support, and publications, including this sourcebook.

Just Speedy and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act [Executive Summary]
Rand Corporation, January 29, 1997, 60 pages
Prepared for the Judicial Conference of the United States, this executive summary summarizes three technical reports that document RAND's evaluation of the Civil Justice Reform Act (CJRA) of 1990. It provides an overview of the purpose of the CJRA, the basic design of the evaluation, and the key findings and their policy implications.

An Evaluation of Judicial Case Management Under the Civil Justice Reform Act [The Report]
Rand Corporation, January 29, 1997, 384 pages
Prepared for the Judicial Conference of the United States, this document presents the main descriptive and statistical evaluation of how the CJRA case-management principles implemented in the study districts affected cost, time to disposition, and participants' satisfaction and views of fairness.

Implementation of the Civil Justice Reform Act in Pilot and Comparison Districts [The Implementation Report]
Rand Corporation, January 29, 1997, 292 pages
Prepared for the Judicial Conference of the United States, this document traces the stages in the implementation of the CJRA in the study districts: the recommendations of the advisory groups, the plans adopted by the districts, and the plans actually implemented. It was prepared for the Judicial Conference of the United States.

An Evaluation of Mediation and Early Neutral Evaluation Under the Civil Justice Reform Act [The Evaluation Report]
Rand Corporation, January 29, 1997, 481 pages
Prepared for the Judicial Conference of the United States, this document discusses the results of an evaluation of mediation and neutral evaluation designed to supplement the alternative dispute resolution assessment contained in the main CJRA evaluation. 

A Study of the Five Demonstration Programs Established Under the Civil Justice Reform Act of 1990: Report to the Judicial Conference Committee on Court Administration and Case Management
Federal Judicial Center, 1997, 327 pages
Report on the programs adopted by districts designated as demonstration districts by the Civil Justice Reform Act. Includes a list of issues to address in designing a mediation program.

The Civil Justice Reform Act of 1990: Final Report — Alternative Proposals for Reduction of Cost and Delay, Assessment of Principles, Guidelines & Techniques
Judicial Conference of the United States, May 1997, 51 pages
The Administrative Office of the U.S. Courts transmits to Congress the Judicial Conference's six-part final report on the CJRA, including analysis of CJRA implementation, alternative plans for cost and delay reduction, and techniques, guidelines, and principles of CJRA efforts.

Guide to Judicial Management of Cases in ADR
​Federal Judicial Center, 2001, 193 pages
This publication offers guidance to federal trial and bankruptcy courts on when and how to refer appropriate cases to ADR and how to manage cases referred to ADR. Section 479(b)(1) of Title 28 requires that “The Judicial Conference of the United States shall, on a continuing basis — study ways to improve litigation management and dispute resolution services in the district courts.” Appendix D of Guide to Judicial Management of Cases in ADR (page 152) reproduces Guidelines for Ensuring Fair and Effective Court-Annexed ADR: Attributes of a Well-Functioning ADR Program and Ethical Principles for ADR Neutrals, Report of the ADR Task Force of the Court Administration and Case Management Committee, December 1997.

Civil Justice Reform Act Report
Administrative Office of the U.S. Courts. [published online semiannually]
The Civil Justice Reform Act of 1990 (CJRA) requires the director of the Administrative Office of the United States Courts (AO), under 28 U.S.C. § 476, to prepare a semiannual report showing, by U.S. district judge and magistrate judge, all motions pending more than six months, all submitted bench trials pending more than six months, all bankruptcy appeals pending more than six months, all Social Security appeal cases pending more than six months, and all civil cases pending more than three years. The reporting requirements under the CJRA are designed to help reduce both costs and delays in civil litigation in the district courts. The information also may be used to evaluate demands on the district courts' resources. 

About this Collection of Civil Justice Reform Act Documents

Letter: CJRA Records Transfer from the Administrative Office of the U.S. Courts to the Federal Judicial Center
Administrative Office of the U.S. Courts, 2010, 17 pages
This letter documents the transfer of custody of this collection from the Administrative Office of the United States Courts to the Federal Judicial Center to facilitate access for research purposes. Citation format: Research About the Courts: Civil Justice Reform Act of 1990https://www.fjc.gov, website of the Federal Judicial Center, Washington, D.C.  

Archival Copy on File

PUBLIC LAW 101-650 — DEC. 1, 1990

104 STAT. 5089, 101st Congress

An Act To provide for the appointment of additional Federal circuit and district judges, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may be cited as the "Judicial Improvements Act of 1990".

TITLE I—CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLANS

SEC. 101. SHORT TITLE.
This title may be cited as the "Civil Justice Reform Act of 1990".

SEC. 102. FINDINGS.
The Congress makes the following findings:

(1) The problems of cost and delay in civil litigation in any United States district court must be addressed in the context of the full range of demands made on the district court's resources by both civil and criminal matters.

(2) The courts, the litigants, the litigants' attorneys, and the Congress and the executive branch, share responsibility for cost and delay in civil litigation and its impact on access to the courts, adjudication of cases on the merits, and the ability of the civil justice system to provide proper and timely judicial relief for aggrieved parties.

(3) The solutions to problems of cost and delay must include significant contributions by the courts, the litigants, the litigants' attorneys, and by the Congress and the executive branch.

(4) In identifying, developing, and implementing solutions to problems of cost and delay in civil litigation, it is necessary to achieve a method of consultation so that individual judicial officers, litigants, and litigants' attorneys who have developed techniques for litigation management and cost and delay reduction can effectively and promptly communicate those techniques to all participants in the civil justice system.

(5) Evidence suggests that an effective litigation management and cost and delay reduction program should incorporate several interrelated principles, including —

(A) the differential treatment of cases that provides for individualized and specific management according to their needs, complexity, duration, and probable litigation careers;

(B) early involvement of a judicial officer in planning the progress of a case, controlling the discovery process, and scheduling hearings, trials, and other litigation events;

(C) regular communication between a judicial officer and attorneys during the pretrial process; and

(D) utilization of alternative dispute resolution programs in appropriate cases.

(6) Because the increasing volume and complexity of civil and criminal cases imposes increasingly heavy workload burdens on judicial officers, clerks of court, and other court personnel, it is necessary to create an effective administrative structure to ensure ongoing consultation and communication regarding effective litigation management and cost and delay reduction principles and techniques.

SEC. 103. AMENDMENTS TO TITLE 28, UNITED STATES CODE.

(a) CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLANS.—Title 28, United States Code, is amended by inserting after chapter 21 the following new chapter:

"CHAPTER 23—CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLANS

"Sec.
"471. Requirement for a district court civil justice expense and delay reduction plan.
"472. Development and implementation of a civil justice expense and delay reduction plan.
"473. Content of civil justice expense and delay reduction plans.
"474. Review of district court action.
"475. Periodic district court assessment.
"476. Enhancement of judicial information dissemination.
"477. Model civil justice expense and delay reduction plan.
"478. Advisory groups.
"479. Information on litigation management and cost and delay reduction.
"480. Training programs.
"481. Automated case information.
"482. Definitions.

"§ 471. Requirement for a district court civil justice expense and delay reduction plan

"There shall be implemented by each United States district court, in accordance with this title, a civil justice expense and delay reduction plan. The plan may be a plan developed by such district court or a model plan developed by the Judicial Conference of the United States. The purposes of each plan are to facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes.

"§ 472. Development and implementation of a civil justice expense and delay reduction plan

"(a) The civil justice expense and delay reduction plan implemented by a district court shall be developed or selected, as the case may be, after consideration of the recommendations of an advisory group appointed in accordance with section 478 of this title.

"(b) The advisory group of a United States district court shall submit to the court a report, which shall be made available to the public and which shall include —

"(1) an assessment of the matters referred to in subsection (c)(1);

"(2) the basis for its recommendation that the district court develop a plan or select a model plan;

"(3) recommended measures, rules and programs; and

"(4) an explanation of the manner in which the recommended plan complies with section 473 of this title.

"(c)(1) In developing its recommendations, the advisory group of a district court shall promptly complete a thorough assessment of the state of the court's civil and criminal dockets. In performing the assessment for a district court, the advisory group shall —

"(A) determine the condition of the civil and criminal dockets;

"(B) identify trends in case filings and in the demands being placed on the court's resources;

"(C) identify the principal causes of cost and delay in civil litigation, giving consideration to such potential causes as court procedures and the ways in which litigants and their attorneys approach and conduct litigation; and

"(D) examine the extent to which costs and delays could be reduced by a better assessment of the impact of new legislation on the courts.

"(2) In developing its recommendations, the advisory group of a district court shall take into account the particular needs and circumstances of the district court, litigants in such court, and the litigants' attorneys.

"(3) The advisory group of a district court shall ensure that its recommended actions include significant contributions to be made by the court, the litigants, and the litigants' attorneys toward reducing cost and delay and thereby facilitating access to the courts.

"(d) The chief judge of the district court shall transmit a copy of the plan implemented in accordance with subsection (a) and the report prepared in accordance with subsection (b) of this section to —

"(1) the Director of the Administrative Office of the United States Courts;

"(2) the judicial council of the circuit in which the district court is located; and

"(3) the chief judge of each of the other United States district courts located in such circuit.

"§ 473. Content of civil justice expense and delay reduction plans

"(a) In formulating the provisions of its civil justice expense and delay reduction plan, each United States district court, in consultation with an advisory group appointed under section 478 of this title, shall consider and may include the following principles and guidelines of litigation management and cost and delay reduction:

"(1) systematic, differential treatment of civil cases that tailors the level of individualized and case specific management to such criteria as case complexity, the amount of time reasonably needed to prepare the case for trial, and the judicial and other resources required and available for the preparation and disposition of the case;

"(2) early and ongoing control of the pretrial process through involvement of a judicial officer in —

"(A) assessing and planning the progress of a case;

"(B) setting early, firm trial dates, such that the trial is scheduled to occur within eighteen months after the filing of the complaint, unless a judicial officer certifies that —

"(i) the demands of the case and its complexity make such a trial date incompatible with serving the ends of justice; or 

"(ii) the trial cannot reasonably be held within such time because of the complexity of the case or the number or complexity of pending criminal cases;

"(C) controlling the extent of discovery and the time for completion of discovery, and ensuring compliance with appropriate requested discovery in a timely fashion; and

"(D) setting, at the earliest practicable time, deadlines for filing motions and a time framework for their disposition;

"(3) for all cases that the court or an individual judicial officer determines are complex and any other appropriate cases, careful and deliberate monitoring through a discovery-case management conference or a series of such conferences at which the presiding judicial officer —

"(A) explores the parties' receptivity to, and the propriety of, settlement or proceeding with the litigation;

"(B) identifies or formulates the principal issues in contention and, in appropriate cases, provides for the staged resolution or bifurcation of issues for trial consistent with Rule 42(b) of the Federal Rules of Civil Procedure;

"(C) prepares a discovery schedule and plan consistent with any presumptive time limits that a district court may set for the completion of discovery and with any procedures a district court may develop to —

"(i) identify and limit the volume of discovery available to avoid unnecessary or unduly burdensome or expensive discovery; and

"(ii) phase discovery into two or more stages; and

"(D) sets, at the earliest practicable time, deadlines for filing motions and a time framework for their disposition;

"(4) encouragement of cost-effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices;

"(5) conservation of judicial resources by prohibiting the consideration of discovery motions unless accompanied by a certification that the moving party has made a reasonable and good faith effort to reach agreement with opposing counsel on the matters set forth in the motion; and

"(6) authorization to refer appropriate cases to alternative dispute resolution programs that —

"(A) have been designated for use in a district court; or

"(B) the court may make available, including mediation, minitrial, and summary jury trial.

"(b) In formulating the provisions of its civil justice expense and delay reduction plan, each United States district court, in consultation with an advisory group appointed under section 478 of this title, shall consider and may include the following litigation management and cost and delay reduction techniques:

"(1) a requirement that counsel for each party to a case jointly present a discovery-case management plan for the case at the initial pretrial conference, or explain the reasons for their failure to do so;

"(2) a requirement that each party be represented at each pretrial conference by an attorney who has the authority to bind that party regarding all matters previously identified by the court for discussion at the conference and all reasonably related matters; 

"(3) a requirement that all requests for extensions of deadlines for completion of discovery or for postponement of the trial be signed by the attorney and the party making the request;

"(4) a neutral evaluation program for the presentation of the legal and factual basis of a case to a neutral court representative selected by the court at a nonbinding conference conducted early in the litigation;

"(5) a requirement that, upon notice by the court, representatives of the parties with authority to bind them in settlement discussions be present or available by telephone during any settlement conference; and

"(6) such other features as the district court considers appropriate after considering the recommendations of the advisory group referred to in section 472(a) of this title.

"(c) Nothing in a civil justice expense and delay reduction plan relating to the settlement authority provisions of this section shall alter or conflict with the authority of the Attorney General to conduct litigation on behalf of the United States, or any delegation of the Attorney General.

"§ 474. Review of district court action

"(a)(1) The chief judges of each district court in a circuit and the chief judge of the court of appeals for such circuit shall, as a committee —

"(A) review each plan and report submitted pursuant to section 472(d) of this title; and

"(B) make such suggestions for additional actions or modified actions of that district court as the committee considers appropriate for reducing cost and delay in civil litigation in the district court.

"(2) The chief judge of a court of appeals and the chief judge of a district court may designate another judge of such court to perform the chief judges responsibilities under paragraph (1) of this subsection. "

(b) The Judicial Conference of the United States —

"(1) shall review each plan and report submitted by a district court pursuant to section 472(d) of this title; and

"(2) may request the district court to take additional action if the Judicial Conference determines that such court has not adequately responded to the conditions relevant to the civil and criminal dockets of the court or to the recommendations of the district court's advisory group.

"§ 475. Periodic district court assessment

"After developing or selecting a civil justice expense and delay reduction plan, each United States district court shall assess annually the condition of the court's civil and criminal dockets with a view to determining appropriate additional actions that may be taken by the court to reduce cost and delay in civil litigation and to improve the litigation management practices of the court. In performing such assessment, the court shall consult with an advisory group appointed in accordance with section 478 of this title.

"§ 476. Enhancement of judicial information dissemination

"(a) The Director of the Administrative Office of the United States Courts shall prepare a semiannual report, available to the public, that discloses for each judicial officer —

"(1) the number of motions that have been pending for more than six months and the name of each case in which such motion has been pending;

"(2) the number of bench trials that have been submitted for more than six months and the name of each case in which such trials are under submission; and

"(3) the number and names of cases that have not been terminated within three years after filing.

"(b) To ensure uniformity of reporting, the standards for categorization or characterization of judicial actions to be prescribed in accordance with section 481 of this title shall apply to the semiannual report prepared under subsection (a).

"§ 477. Model civil justice expense and delay reduction plan

"(a)(1) Based on the plans developed and implemented by the United States district courts designated as Early Implementation District Courts pursuant to section 103(c) of the Civil Justice Reform Act of 1990, the Judicial Conference of the United States may develop one or more model civil justice expense and delay reduction plans. Any such model plan shall be accompanied by a report explaining the manner in which the plan complies with section 473 of this title.

"(2) The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts may make recommendations to the Judicial Conference regarding the development of any model civil justice expense and delay reduction plan.

"(b) The Director of the Administrative Office of the United States Courts shall transmit to the United States district courts and to the Committees on the Judiciary of the Senate and the House of Representatives copies of any model plan and accompanying report.

"§ 478. Advisory groups

"(a) Within ninety days after the date of the enactment of this chapter, the advisory group required in each United States district court in accordance with section 472 of this title shall be appointed by the chief judge of each district court, after consultation with the other judges of such court.

"(b) The advisory group of a district court shall be balanced and include attorneys and other persons who are representative of major categories of litigants in such court, as determined by the chief judge of such court.

"(c) Subject to subsection (d), in no event shall any member of the advisory group serve longer than four years.

"(d) Notwithstanding subsection (c), the United States Attorney for a judicial district, or his or her designee, shall be a permanent member of the advisory group for that district court.

"(e) The chief judge of a United States district court may designate a reporter for each advisory group, who may be compensated in accordance with guidelines established by the Judicial Conference of the United States.

"(f) The members of an advisory group of a United States district court and any person designated as a reporter for such group shall be considered as independent contractors of such court when in the performance of official duties of the advisory group and may not, solely by reason of service on or for the advisory group, be prohibited from practicing law before such court. 

"§ 479. Information on litigation management and cost and delay reduction

"(a) Within four years after the date of the enactment of this chapter, the Judicial Conference of the United States shall prepare a comprehensive report on all plans received pursuant to section 472(d) of this title. The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts may make recommendations regarding such report to the Judicial Conference during the preparation of the report. The Judicial Conference shall transmit copies of the report to the United States district courts and to the Committees on the Judiciary of the Senate and the House of Representatives.

"(b) The Judicial Conference of the United States shall, on a continuing basis —

"(1) study ways to improve litigation management and dispute resolution services in the district courts; and

"(2) make recommendations to the district courts on ways to improve such services.

"(c)(1) The Judicial Conference of the United States shall prepare, periodically revise, and transmit to the United States district courts a Manual for Litigation Management and Cost and Delay Reduction. The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts may make recommendations regarding the preparation of and any subsequent revisions to the Manual.

"(2) The Manual shall be developed after careful evaluation of the plans implemented under section 472 of this title, the demonstration program conducted under section 104 of the Civil Justice Reform Act of 1990, and the pilot program conducted under section 105 of the Civil Justice Reform Act of 1990.

"(3) The Manual shall contain a description and analysis of the litigation management, cost and delay reduction principles and techniques, and alternative dispute resolution programs considered most effective by the Judicial Conference, the Director of the Federal Judicial Center, and the Director of the Administrative Office of the United States Courts.

"§ 480. Training programs

"The Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts shall develop and conduct comprehensive education and training programs to ensure that all judicial officers, clerks of court, courtroom deputies, and other appropriate court personnel are thoroughly familiar with the most recent available information and analyses about litigation management and other techniques for reducing cost and expediting the resolution of civil litigation. The curriculum of such training programs shall be periodically revised to reflect such information and analyses.

"§ 481. Automated case information

"(a) The Director of the Administrative Office of the United States Courts shall ensure that each United States district court has the automated capability readily to retrieve information about the status of each case in such court.

"(b)(1) In carrying out subsection (a), the Director shall prescribe — 

"(A) the information to be recorded in district court automated systems; and

"(B) standards for uniform categorization or characterization of judicial actions for the purpose of recording information on judicial actions in the district court automated systems.

"(2) The uniform standards prescribed under paragraph (1)(B) of this subsection shall include a definition of what constitutes a dismissal of a case and standards for measuring the period for which a motion has been pending.

"(c) Each United States district court shall record information as prescribed pursuant to subsection (b) of this section,

"§ 482. Definitions

"As used in this chapter, the term 'judicial officer' means a United States district court judge or a United States magistrate.".

(b) IMPLEMENTATION. — (1) Except as provided in section 105 of this Act, each United States district court shall, within three years after the date of the enactment of this title, implement a civil justice expense and delay reduction plan under section 471 of title 28, United States Code, as added by subsection (a).

(2) The requirements set forth in sections 471 through 478 of title 28, United States Code, as added by subsection (a), shall remain in effect for seven years after the date of the enactment of this title.

(c) EARLY IMPLEMENTATION DISTRICT COURTS. —

(1) Any United States district court that, no earlier than June 30, 1991, and no later than December 31, 1991, develops and implements a civil justice expense and delay reduction plan under chapter 23 of title 28, United States Code, as added by subsection (a), shall be designated by the Judicial Conference of the United States as an Early Implementation District Court.

(2) The chief judge of a district so designated may apply to the Judicial Conference for additional resources, including technological and personnel support and information systems, necessary to implement its civil justice expense and delay reduction plan. The Judicial Conference may provide such resources out of funds appropriated pursuant to section 106(a).

(3) Within 18 months after the date of the enactment of this title, the Judicial Conference shall prepare a report on the plans developed and implemented by the Early Implementation District Courts.

(4) The Director of the Administrative Office of the United States Courts shall transmit to the United States district courts and to the Committees on the Judiciary of the Senate and House of Representatives —

(A) copies of the plans developed and implemented by the Early Implementation District Courts;

(B) the reports submitted by such district courts pursuant to section 472(d) of title 28, United States Code, as added by subsection (a); and

(C) the report prepared in accordance with paragraph (3) of this subsection.

(d) TECHNICAL AND CONFORMING AMENDMENT. — The table of chapters for part I of title 28, United States Code, is amended by adding at the end thereof the following:

"23. Civil justice expense and delay reduction plans ................................. 471". 

SEC. 104. DEMONSTRATION PROGRAM.

(a) IN GENERAL. — (1) During the 4-year period beginning on January 1, 1991, the Judicial Conference of the United States shall conduct a demonstration program in accordance with subsection (b).

(2) A district court participating in the demonstration program may also be an Early Implementation District Court under section 103(c).

(c) PROGRAM REQUIREMENT. — (1) The United States District Court for the Western District of Michigan and the United States District Court for the Northern District of Ohio shall experiment with systems of differentiated case management that provide specifically for the assignment of cases to appropriate processing tracks that operate under distinct and explicit rules, procedures, and timeframes for the completion of discovery and for trial.

(2) The United States District Court for the Northern District of California, the United States District Court for the Northern District of West Virginia, and the United States District Court for the Western District of Missouri shall experiment with various methods of reducing cost and delay in civil litigation, including alternative dispute resolution, that such district courts and the Judicial Conference of the United States shall select.

(c) STUDY OF RESULTS. — The Judicial Conference of the United States, in consultation with the Director of the Federal Judicial Center and the Director of the Administrative Office of the United States Courts, shall study the experience of the district courts under the demonstration program.

(d) REPORT. — Not later than December 31, 1995, the Judicial Conference of the United States shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report of the results of the demonstration program.

SEC. 105. PILOT PROGRAM.

(a) IN GENERAL. — (1) During the 4-year period beginning on January 1, 1991, the Judicial Conference of the United States shall conduct a pilot program in accordance with subsection (b).

(2) A district court participating in the pilot program shall be designated as an Early Implementation District Court under section 103(c).

(b) PROGRAM REQUIREMENTS. — (1) Ten district courts (in this section referred to as "Pilot Districts") designated by the Judicial Conference of the United States shall implement expense and delay reduction plans under chapter 23 of title 28, United States Code (as added by section 103(a)), not later than December 31, 1991. In addition to complying with all other applicable provisions of chapter 23 of title 28, United States Code (as added by section 103(a)), the expense and delay reduction plans implemented by the Pilot Districts shall include the 6 principles and guidelines of litigation management and cost and delay reduction identified in section 473(a) of title 28, United States Code.

(2) At least 5 of the Pilot Districts designated by the Judicial Conference shall be judicial districts encompassing metropolitan areas.

 (3) The expense and delay reduction plans implemented by the Pilot Districts shall remain in effect for a period of 3 years. At the end of that 3-year period, the Pilot Districts shall no longer be required to include, in their expense and delay reduction plans, the 6 principles and guidelines of litigation management and cost and delay reduction described in paragraph (1).

(c) PROGRAM STUDY REPORT. — (1) Not later than December 31, 1995, the Judicial Conference shall submit to the Committees on the Judiciary of the Senate and House of Representatives a report on the results of the pilot program under this section that includes an assessment of the extent to which costs and delays were reduced as a result of the program. The report shall compare those results to the impact on costs and delays in ten comparable judicial districts for which the application of section 473(a) of title 28, United States Code, had been discretionary. That comparison shall be based on a study conducted by an independent organization with expertise in the area of Federal court management.

(2)(A) The Judicial Conference shall include in its report a recommendation as to whether some or all district courts should be required to include, in their expense and delay reduction plans, the 6 principles and guidelines of litigation management and cost and delay reduction identified in section 473(a) of title 28, United States Code.

(B) If the Judicial Conference recommends in its report that some or all district courts be required to include such principles and guidelines in their expense and delay reduction plans, the Judicial Conference shall initiate proceedings for the prescription of rules implementing its recommendation, pursuant to chapter 131 of title 28, United States Code.

(C) If in its report the Judicial Conference does not recommend an expansion of the pilot program under subparagraph (A), the Judicial Conference shall identify alternative, more effective cost and delay reduction programs that should be implemented in light of the findings of the Judicial Conference in its report, and the Judicial Conference may initiate proceedings for the prescription of rules implementing its recommendation, pursuant to chapter 131 of title 28, United States Code.

SEC. 106. AUTHORIZATION.

(a) EARLY IMPLEMENTATION DISTRICT COURTS. — There is authorized to be appropriated not more than $15,000,000 for fiscal year 1991 to carry out the resource and planning needs necessary for the implementation of section 103(c).

(b) IMPLEMENTATION OF CHAPTER 23. — There is authorized to be appropriated not more than $5,000,000 for fiscal year 1991 to implement chapter 23 of title 28, United States Code.

(c) DEMONSTRATION PROGRAM. — There is authorized to be appropriated not more than $5,000,000 for fiscal year 1991 to carry out the provisions of section 104.

Available Online Only

This package of materials was transmitted to Congress on April 26, 2018, concerning amendments to the Federal Rules of Practice and Procedure to become effective on December 1, 2018.

Amendments to the Federal Rules of Practice and Procedure are as follows:

  • Amendments to Federal Rules of Appellate Procedure 8, 11, 25, 26, 28.1, 29, 31, 39, and 41, and Forms 4 and 7.
  • Amendments to Federal Rules of Bankruptcy Procedure 3002.1, 5005, 7004, 7062, 8002, 8006, 8007, 8010, 8011, 8013, 8015, 8016, 8017, 8021, 8022, and 9025, new Rule 8018.1, and new Part VIII Appendix.
  • Amendments to Federal Rules of Civil Procedure 5, 23, 62, and 65.1.
  • Amendments to Federal Rules of Criminal Procedure 12.4, 45, and 49.

Additional information about these amendments is available on the Center’s website at Amendments to the Federal Rules of Practice and Procedure (webpage).

Information about rules amendments and the rule-making process is available on uscourts.gov at United States Courts Rules & Policies.

Available Online Only

Domestic Violence | Grave Risk

In this case, the Fifth Circuit evaluated whether the district court’s finding that there was a lack of “objective evidence” to support abuse allegations impermissibly increased mother’s burden to prove a grave risk, and whether the existence of spousal abuse requires a finding of grave risk to a child.

Facts

In September of 2014, after a nine-year marriage, mother and father, who were both Mexican citizens residing in Mexico, mutually decided to divorce. In the spring of 2015, mother told father she was taking two of her three children to a party in another town three hours away; instead she took them to the United States, seeking political asylum.[1] Father filed a petition in district court for return of the children under the Hague Convention. Mother’s defense argued that there was a grave risk to the children because of domestic violence. In the district court, both mother and father accused each other of domestic violence, adultery, and financial irresponsibility. The district court found that

[Mother]’s allegations of abuse—that [Father] physically and psychologically abused her, sometimes in front of their children, and that [Father] allegedly physically assaulted their daughter on one occasion—are in conflict with [Father’s] testimony. [Father] testified that he could recall one instance in which he and [Mother] engaged in a physical fight, but [Father] denied any other instances of abuse. Because neither side is able to provide objective evidence, [Mother’s] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm.[2]

The district court granted the petition for return. Denying a subsequent motion for stay requested by mother, the district court noted that despite mother’s challenge to its “objective evidence” finding, the district court “did not disregard the testimony of the two children . . . rather, . . . [it] noted that there was no evidence of physical abuse of the Child, which is the more pertinent issue for likelihood of grave risk of harm to the child.”[3]

The Fifth Circuit declined to consider the district court’s stay ruling. The stay ruling did not amend the district court’s trial findings and as such was not part of that court’s findings of fact and conclusions of law.

Discussion

The Fifth Circuit affirmed the district court’s decision granting father’s petition for return.

The court began its analysis by restating the fundamental principles underlying an Article 13(b) defense: defenses under the Hague Convention are narrow,[4] findings of grave risk are rare,[5] and the party raising the defense must show that return of the child would expose the child to a grave risk of harm, not merely a serious risk.[6] Grave risk is one of two defenses that must be proved by “clear and convincing evidence.”[7] In this case, the Fifth Circuit noted that the district court’s reference to “objective evidence” did not demonstrate that the court’s ruling was “based on a misconception of the underlying legal standard.”[8]

Mother’s first contention was based on the district court’s comments on the lack of “objective evidence” to sustain mother’s abuse allegations. Mother argued that this characterization of the evidence impermissibly heightened the existing legal standard of clear and convincing evidence. While the circuit court agreed that a person asserting an Article 13(b) defense is not required to provide objective evidence in order to prove the defense, the court also found that the district court did not actually require “objective evidence” of abuse. The use of the phrase by the district court was simply part of its factual finding that the evidence mother provided was insufficient to meet her burden to show a grave risk to the child by clear and convincing evidence.

Mother raised an additional ground for appeal: the district court noted in its decision that mother did not provide any evidence that father abused the child in question. Mother argued that case law supported a finding of grave risk to the child in the case of spousal abuse, even without proof of violence directed toward the child itself. The Fifth Circult acknowledged the existence of case law supporting this position, but the court held that there is no bright-line rule that requires a court to find a grave risk whenever it finds evidence of spousal abuse. When considering the case law examples mother provided, the court reasoned that those cases

stand only for the proposition that sustained spousal abuse can, in some instances, create such a risk. Indeed, a bright-line rule that allegations of spousal abuse create grave risk to a child would circumvent the Hague Convention’s principle that “the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.”[9]


[1]. This case ultimately applied only to one of the two children because the other child “aged out” (that is, the child turned sixteen during the pendency of the Hague Convention proceedings). The asylum petition was pending at the time of the decision in this case.
[2]. Soto v. Contreras, 880 F.3d 706, 709 (5th Cir. 2018) (quoting Soto v. Contreras, 2016 U.S. Dist. LEXIS 192540, at *4–5 (N.D. Tex. Oct. 18, 2016) (emphasis added)).
[3]. Soto v. Contreras, 2016 U.S. Dist. LEXIS 192541, at *3 (N.D. Tex. Oct. 25, 2016).
[4]. Soto, 880 F.3d at 709­­–10 (citing Tavarez v. Jarrett, 252 F. Supp. 3d 629, 640 (S.D. Tex. 2017) (citing England v. England, 234 F.3d 268, 271 (5th Cir. 2000))).
[5]. Id. at 710 (citing Delgado v. Osuna, 2015 WL 5095231, at *13 (E.D. Tex. 28 Aug. 2015), aff’d, 837 F.3d 571 (5th Cir. 2016)).
[6]. Id. (citing Hague International Child Abduction Convention; Text and Legal Analysis, 51 FR 10494–01 (Mar. 1986)).
[7]. 22 U.S.C.S. § 9003(e)(2)(A).
[8]. Soto v. Contreras, 880 F.3d 706, 711 (5th Cir. 2018) (citing Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 339 n.16 (5th Cir. 1984)).
[9]. Id. at 713 (citations omitted).

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Taglieri v. Monasky, 876 F.3d 868 (6th Cir. 2017)

Habitual Residence | Infants | Custody Rights | Grave Risk and Domestic Violence

This case dealt with the question of what standard to apply when determining the habitual residence of an infant who has lived in only one location prior to wrongful removal.

Editor’s Note: Judge Boggs authored the majority opinion in this case. Judge Boggs also authored Friedrich v. Friedrich (Friedrich I)[1] in 1993, the first federal appellate case involving the 1980 Hague Convention, and he authored the subsequent iteration of that case, Friedrich II,[2] in 1996. Friedrich II is the most-cited case involving the 1980 Hague Convention.

Facts

In 2011, father, an Italian citizen studying at the University of Illinois, met and married mother, also a student at the university. In 2013, the couple decided to move to Italy for their careers. Father was licensed to practice medicine in Italy, and mother received two fellowships for further study in Italy. Father moved first in February 2013, and mother followed. Before her move, mother sent an email to father indicating, “[I]don’t think that [the fact that we are moving to Milan or Rome] means we are done with the U.S. [for good].”

Mother became pregnant in May 2014. Father became sexually and physically abusive. The parties’ relationship deteriorated—they discussed divorce, and mother applied for U.S. jobs but also made plans to have the child in Italy. After one of mother’s pregnancy check-ups in mid-February, she started having contractions. She took a taxi to the hospital while father remained at the apartment. Their versions of why father did not immediately join mother conflicted. Father later came to the hospital for the birth. The child was delivered by emergency caesarean section. After the birth, father returned to the apartment, and mother went to a residence in Basiglio, a suburb of Milan. The parties briefly reconciled but separated shortly thereafter due to arguments and alleged threats of physical harm by father.

On April 15, 2015, mother left with her six-week-old child for the United States. Various factors influenced mother’s move back to the United States: her inability to obtain recognition of her academic credentials in Italy, her lack of Italian language skills, and her complicated pregnancy. Father commenced an action under the Hague Convention for the return of the child on May 14, 2015. In March 2016, the district court held a four-day trial. The district court granted father’s application for return in October 2016. Stays requested by mother were denied, and the child was returned to Italy.

Discussion

Habitual Residence. The Sixth Circuit began with a summary of its previous holdings in Friedrich I,[3] Simcox v. Simcox,[4] Robert v. Tesson,[5] and Ahmed v. Ahmed[6] as they related to the question of determining habitual residence:

This brief survey reveals that we use three distinct standards to determine a child’s habitual residence under the Convention. In cases where the child has resided exclusively in a single country, that country is the child’s habitual residence. But when the child has alternated residences between two or more nations, our analysis is more complicated. In such cases, we begin by applying the acclimatization standard. See [Ahmed v. Ahmed, 867 F.3d 682] 690. If that test supports the conclusion that a particular country is the child’s habitual residence, then that is the end of the analysis. But if the case cannot be resolved through application of the acclimatization standard, such as those cases that involve “especially young children who lack the cognizance to acclimate to any residence,” we then consider the shared parental intent of the child’s parents. Ibid. (“The conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent.”)[7]

In this case, the child lived in only one place—Italy—before she was removed by mother to the United States. There was no shuttling back and forth between countries, and there was no opportunity for the child to become acclimatized, as might be the case with an older child. If a child has lived in only one place, then that place “may be considered its residence.”[8]

Continuing the argument set forth by the dissent, the court found that “Ahmed did not modify or displace the alternative standard and guidance that Friedrich I and Simcox provided for children with exclusively one country of residence. Robert and Ahmed dealt with one situation, while Friedrich I and (in part) Simcox dealt with another.”[9] The decision in Robert regarding acclimatization applied only when a child has alternated between residences in two or more nations. The decision in Ahmed adopting a standard of shared parental intent makes that intent relevant only when the acclimatization standard is applied, but it fails to provide guidance to the court, especially in cases involving small children. The court concluded that

[w]here a child has remained in one place for its entire life, that place is the expected location where it may be found and may be considered its residence. Thus, A.M.T.’s habitual residence was the country from which she was taken, Italy.[10]

The court recognized that difficulties could arise with individual cases, citing Delvoye v. Lee,[11] where the mother was convinced to remain in the father’s country for financial reasons. Such cases are rare and reflect the “flexible and fact-intensive nature”[12] of the question of habitual residence.

Exercise of Custody Rights. The court concluded that father exercised his custody rights under Italian law, both by statute and an order from an Italian juvenile court. Father proved that he had such rights and was exercising them at the time of the child’s removal. The court pointed to its oft-cited statement in Friedrich II that “if a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.”[13] There were no such facts in this case. Father established his rights of custody.

Grave Risk of Harm. The court referred to its analysis in Simcox that discussed the spectrum of conduct that falls under the definition of domestic violence, reiterating that the definition of grave risk as a result of domestic violence is to be interpreted narrowly, “lest it swallow the rule.”[14] The court in that case cautioned, however, that “there is a danger of making the threshold so insurmountable that district courts will be unable to exercise any discretion in all but the most egregious cases of abuse.”[15] In this case, the Sixth Circuit found the mother’s accounts of abuse to be credible, but noted that the district court found that evidence lacking clarity on the frequency and severity of the violence. There was also no evidence indicating that the violence had been directed toward the child. The court acknowledged that a child could be in grave risk of psychological harm or placed in an intolerable situation due to the abuse of the parent alone, but in this case the evidence failed to amount to a grave risk of harm or show that the child was in an intolerable situation.

Dissent. The dissent analyzed the progression of the Sixth Circuit’s holdings on habitual residence from Friedrich I (facts not presumptions, focus on child’s past experiences not parent’s, one habitual residence, look to geography and time), Robert, and Simcox, (acclimatization and degree of settled purpose). In Simcox, the court acknowledged that “the acclimatization standard may not be appropriate in cases involving infants or other very young children.”[16] In Ahmed,[17] the court addressed the issue of habitual residence for infants and children not old enough to develop a “sense of settled purpose.” The Ahmed court focused on the presence or absence of the parents’ shared intent in a situation where the children were too young to have acquired a “degree of settled purpose.” In such cases, courts must shift focus to the issue of shared parental intent. In Ahmed, the court found that father had not proved that there was a shared intent for the children to remain in England when mother removed them to the United States. The dissent reasoned that Ahmed’s facts and analysis mirrored the Taglieri case.

Because the child in this case was similarly unable to acquire a degree of settled purpose or become acclimatized, the court should look to the issue of parental intent. If there is no shared parental intent, the dissent concluded that no habitual residence is acquired, citing Delvoye v. Lee.[18] The dissent proposed that the rules regarding infants should follow existing precedent.

Our acclimatization standard is sufficient to determine the habitual residence of most children, and when it is not, we must then use the settled-parental-intent standard. Where the child is too young to have acclimatized to her community and surroundings, and where the parents do not have a settled mutual intent, I would conclude that the child cannot have a habitual residence.[19]

Since the Ahmed case had not been decided when the district court decided this case, the dissent recommended a remand to the district court to consider the issue of parental intent within the context of Ahmed.

 

[1]. 983 F.2d 1396 (6th Cir. 1993).
[2]. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1063 (6th Cir. 1996).
[3]. 983 F.2d at 1396.
[4]. 511 F.3d 594 (6th Cir. 2007).
[5]. 507 F.3d 981 (6th Cir. 2007).
[6]. 867 F.3d 682 (6th Cir. 2017).
[7]. Taglieri v. Monasky, 876 F.3d 868, 876 (6th Cir. 2017).
[8]. Id. at 877.
[9]. Id. at 876.
[10]. Id. at 877 (footnote omitted).
[11]. 329 F.3d 330 (3rd Cir. 2003).
[12]. Taglieri, 876 F.3d at 877 (citing Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007). At note 2 of the Taglieri opinion, the court left the door open to future interpretations: “Other cases with potential problems might include unexpected births in a foreign country, children born to itinerant parents, or physical coercion. We express no opinion on what the appropriate standard should be for such cases.”
[13]. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1063 (6th Cir. 1996).
[14]. Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007).
[15]. Id. at 608.
[16]. Id. at 602, n.2.
[17]. Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017).
[18]. 329 F.3d 330 (3rd Cir. 2003).
[19]. Taglieri v. Monasky, 876 F.3d 868, 884 (6th Cir. 2017).

 

Superseded by Taglieri v. Monasky (6th Cir. Oct. 17, 2018) (Case Analysis).

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Wrongful Retention | Single or Continuing Act | Date of Entry into Force

The Second Circuit explored whether the 1980 Hague Convention came into force between the United States and Thailand before the mother in this case wrongfully retained her children. It also dealt with whether wrongful retention is a single act or a continuing one.

Facts

Mother and father were U.S. citizens with three sons—a fifteen-year-old and twelve-year-old twins—and the family had lived in Bangkok, Thailand, since 2005. The parties divorced in 2015, and mother gained sole custody of the children.[1] In September 2015, mother traveled to New York for three weeks, with plans to return to Thailand on October 10, 2015. Three days before her scheduled return, mother sent father an email informing him that she had decided to remain in the United States permanently.

The district court held that the retention of the children was a single act, rather than a continuing act, and that the wrongful retention occurred before the Convention had entered into force between the United States and Thailand. The Second Circuit affirmed.

Discussion

Entry into Force. Because Thailand was not a member state at the time of the adoption of the 1980 Convention, it could only be bound by the Convention once it had gone through the process of accession. Thailand acceded to the Convention in 2002, but the United States did not formally accept that accession until 2016. Under the terms of Article 38, only after the existing member state has declared its acceptance of the acceding state will the Convention enter into force between those two states, on the “first day of the third calendar month after the deposit of the declaration of acceptance.”[2] The United States accepted Thailand’s accession on January 26, 2016, meaning the Convention went into force between the two countries on April 1, 2016.

The Second Circuit declined to adopt the reasoning of Viteri v. Pflucker[3] holding that the Convention applies if it is in force in each country—that is, if both countries involved have either ratified or acceded to the Convention on the date of the wrongful removal or retention.

Wrongful Retention. The circuit court further held that wrongful retention is a single, not continuing, act. This interpretation is reinforced by the provisions of Article 35 of the Convention, which states that the Convention “shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.”[4] Similarly, Article 12, the one-year provision, states that proceedings must be brought within one year “from the date of the wrongful removal or retention.”[5] If retention were deemed to be a continuing act, then the provisions of Article 12 would have no effect, and a case would be actionable so long as the retention continued and until the Convention entered into force between the two countries involved.

Additionally, the Pérez-Vera report states that

[t]he fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child’s stay in a place other than that of its habitual residence.[6]

Father filed his petition for the return of the children on September 9, 2016. The wrongful retention of the children commenced on the date that mother unequivocally informed father that she was not returning with the children: October 7, 2015. At the time of mother’s notification, the Convention had not yet entered into force between Thailand and the United States.


[1]. Months after mother’s departure from Thailand, the Thai court of appeals vacated the judgment that awarded mother sole custody and instead awarded joint custody of the children to both mother and father.
[2]. Hague Convention on the Civil Aspects of International Child Abduction art. 38, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
[3]. 550 F. Supp. 2d 829 (N.D. Ill. 2008).
[4]. Hague Convention on the Civil Aspects of International Child Abduction art. 35, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
[5]. Hague Convention on the Civil Aspects of International Child Abduction art. 12, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
[6]. Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 458 ¶ 108 (1982).

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Return Orders | Enforcement | Place of Return

This case involves consideration of motions filed by both parents to modify and vacate the order of return. At the time of the hearing on the motions, the children had been returned to their habitual residence, Mexico.

Facts

Both mother and father were Mexican citizens residing in Mexico City with their two daughters, ages three and five. In 2015, mother took the children to the United States for a vacation, but ultimately decided to remain in El Paso, Texas. Father petitioned for the return of the children to Mexico, and the district court granted his petition. After the issuance of the return order, mother filed a notice of compliance with the court order, indicating that the children had been returned to Mexico and were residing in Ciudad Juárez. Father sought posttrial enforcement of the return order, claiming that mother had placed the children with their maternal grandparents in Ciudad Juárez for some weeknights, but that the children spent weekdays and weekends in El Paso, Texas. Father requested orders to deliver the children to him in Mexico City and to prohibit the children’s travel outside of Mexico. Mother also filed a posttrial request to vacate the return order based upon newly discovered evidence. The Fifth Circuit affirmed the district court’s denial of both parents’ posttrial motions.

Discussion

It is significant that the parents’ posttrial motions were made after the children had already been returned to Mexico. Mexican courts acquired jurisdiction over all custody issues. The Fifth Circuit declined to adopt a rule that requires orders of return to correspond with the status quo that existed before removal. The court noted, “The return remedy, in particular, was designed principally to address situations that cannot be resolved unilaterally by the state of habitual residence.”[1] To the extent that the court seeks to determine the location of the child’s habitual residence within the state, or to order the child to attend certain schools or to be subject to visitation orders, the court takes on issues that begin to resemble those in child custody cases. Citing to its previous holding in Hernandez v. Garcia Pena,[2] the court reiterated that the remedy of return “only determines where any custody decision should be made.”

As the court observed, mother and father both agreed that because the children had been returned to Mexico, the Mexican courts had jurisdiction to decide all custody matters. The court further held that “the Convention and its return remedy do not control or regulate children whose custody matters are within the exclusive jurisdiction and control of the state of habitual residence.”[3] Therefore, the courts of Mexico are the proper venue for deciding issues relating to the residence or placement of the children.

Mother’s posttrial motions to vacate were based on her claims that events occurring after the trial supported a defense of grave risk. Her first claim was that her husband had convinced a Mexican court to issue a warrant for her arrest for “fraudulent administration,” a crime that carried no bail. Mother argued that if she were arrested on the warrant, she would be separated from the children for an indefinite period of time, causing grave risk to the children. The circuit court denied the motion on the grounds that the separation of a child from a parent is insufficient to trigger the grave risk exception and that principles of comity foreclose the court from second-guessing the decisions of Mexican courts in their own cases. Mother’s second claim of grave risk was based on a death threat against her that her attorneys received. The threat was contained in the subject line of an email that had no body text; it was vague and was sent by an unknown source.

The court acknowledged that while threats against a parent could create a grave risk to a child,[4] the vague and uncertain facts of this case did not, and the Fifth Circuit affirmed the district court’s decision not to vacate the return order based upon this post­trial evidence.


[1]. Madrigal v. Tellez, 848 F.3d 669, 674 (5th Cir. 2017) (citing Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 430 (1982)).
[2]. 820 F.3d 782, 786 (5th Cir. 2016).
[3]. Madrigal, 848 F.3d at 674.
[4]. Madrigal, 848 F.3d at 677 (citing Gomez v. Fuenmayor, 812 F.3d 1005, 1007–10 (11th Cir. 2016); Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014); Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005); Walsh v. Walsh, 221 F.3d 204, 219–20 (1st Cir. 2000); and Sabogal v. Velarde, 106 F. Supp. 3d 689, 705–06 (D. Md. 2015)).

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Defenses | Consent – Facts Supporting Consent

This case involves whether mother consented to the removal of the child from Mexico to the United States. The opinion focuses upon the sufficiency of the facts supporting the defense of consent and the district court’s credibility findings.

Facts

The child in question was born in Oaxaca, Mexico, in 2011.[1] He was primarily raised by his maternal grandmother. Although father provided financial support for the child, he had little to no physical contact with the child until age two. In December 2014, mother and father went to the passport office in Oaxaca, where the parents signed for the child’s passport, and mother indicated that she agreed to sign over custody of the child to father because she believed that father would be able to get the child “on the right track.” After that, the child went to live with father at his home in Acapulco. In February 2015, the child was detained by Border Patrol agents after having entered the United States illegally with other undocumented individuals. Father admitted that he had paid to have the child smuggled into the United States. The child was ultimately released to father.

After this, mother and father corresponded by text messages. Mother initially indicated that the child was better off with father in the United States and agreed to the child’s presence there, if she was permitted to see the child. The child’s maternal grandmother, however, was attempting to arrange the child’s return to Mexico. As late as a year after the child entered the United States, mother conceded to father that the best place for the child was the United States and that she was opposed to the maternal grandmother’s efforts to have the child returned to Mexico. At one point, mother indicated that she would support father’s continued custody of the child in the United States as long as father continued to provide mother with money. One message read “you forward 3,000 please and I will give the guardian and custody, . . . I will do everything for [Child] to be with you but I really need the money.” Mother changed her position in February 2016 and requested the return of the child. Mother filed her petition for return in May 2016.

The district court denied mother’s petition for return, finding that the child had been wrongfully removed by father but sustaining father’s Article 13[2] defense of consent to removal. The Fifth Circuit affirmed.

Discussion

The court distinguished between the defenses of consent (permission given before the child is removed) and acquiescence (more formalized conduct occurring after the removal). Finding that father’s defense was properly characterized as consent, the court focused upon the subjective intent of the party allegedly giving consent, in this case, the mother. The Fourth Circuit upheld the district court’s finding of consent based upon the district court’s factual determinations, including mother’s lack of credibility. The facts supporting father’s defense were as follows:

  • Mother willingly accompanying father to obtain the child’s passport
  • Mother agreeing to assign custody of the child over to father
  • Mother agreeing to grant custody of the child to father to enable child to have a better life
  • Text messages from mother supporting father’s continued custody of the child in Virginia
  • Mother’s repeated statements that the child was better off with father
  • Lack of mother’s objection to the child remaining in the United States for over six months after his removal from Mexico
  • Corroborating testimony of father’s fiancée and mother’s half-sister

[1]. Respondent was designated as the child’s legal father by stipulation, although respondent was not the child’s biological father.
[2]. Hague Convention on the Civil Aspects of International Child Abduction art. 13, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 (“[T]he judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. . . .”).

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Habitual Residence | Especially Young Children | Infants

The Sixth Circuit expanded the habitual residence standard to allow consideration of shared parental intent in cases involving especially young children who lack sufficient capacity to acclimate to any residence.

Facts

Father and mother married in 2009. Father lived in London, and mother lived in Michigan where she was completing her studies in optometry. Mother briefly moved to London in 2011 but returned to the United States five months later to take additional studies needed to practice optometry in the United Kingdom. Twenty-one months later, mother returned to the United Kingdom with the intention of remaining there permanently. Six months later, in February 2014, mother became pregnant and was prescribed bed rest. After an argument in May of 2014, mother returned to Knoxville, Tennessee, a previous home. Mother maintained that she did not intend to return to the United Kingdom, and father indicated that he expected her to return. Mother delivered twins in November 2014. Father had come to Knoxville and moved into an apartment with mother and the children. Father returned to London when his visa expired in January 2015. Father again visited the United States in April 2015. In May, the entire family traveled to the United Kingdom, where they lived in the home of father’s parents.

Mother said that her trip to the United Kingdom with the children in 2015 was for a summer visit to see if the marriage was going to work out. She testified that she left her valuables and optometry equipment in the United States. She did not sell her car or cancel her U.S. auto insurance, maintained medical insurance for herself and the children, renewed her license to practice optometry in Tennessee, and paid her professional privilege tax before she left for London. However, she also took the U.K. exam required for the practice of optometry, registered the children with the National Health Service, and arranged for a medical checkup for them in London.

In July 2015, mother and the children traveled to Bangladesh for a wedding. Mother then flew back to the United States with the children, returning to Knoxville. Father petitioned for the children’s return in March 2016. The district court denied father’s petition for return. The Sixth Circuit affirmed.

Discussion

The Sixth Circuit’s approach to determining a child’s habitual residence focuses upon the past experiences of the child, not the intentions of the parents.[1] This case did not modify this acclimatization standard. The court reasoned that application of the shared parental intent standard to this case did not deviate from its prior precedents, but rather addressed a gap in the habitual residence analysis. The Sixth Circuit had no prior opportunity to address what standard to apply when the habitual residence question applied to especially young children.

The circuit court found that the acclimatization standard was difficult, if not impossible, to apply to cases involving especially young children. Acclimatization requires consideration of facts concerning the child’s connections to the country, including such areas as academics, sports, social contacts, and other meaningful connections. As a result, the court found that “virtually all children who lack cognizance of their surroundings are unable to acclimate, making the standard generally unworkable.” The court held that looking to shared parental intent was consistent with all past Sixth Circuit rulings, which held that habitual residence involves consideration of both acclimatization and shared parental intent.[2]

The court also noted that application of the shared parental intent rule in such roles is not a bright-line rule, but rather an issue of fact to be determined by the lower courts.[3]


[1]. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993); Robert v. Tesson, 507 F.3d 981, 992 (6th Cir. 2007). A majority of other circuits have followed the general approach of the Ninth Circuit’s opinion in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). When using the Mozes approach to decide whether a habitual residence has been acquired, the first inquiry is whether the parents demonstrate a shared intention to abandon the former habitual residence, and the second question is whether there has been a change in geography for an “appreciable period of time” that is “sufficient for acclimatization.”
[2]. The court noted that “all but the Fourth and Eighth Circuits prioritize shared parental intent in cases concerning especially young children” (citing Mauvais v. Herisse, 772 F.3d 6, 11 (1st Cir. 2014); Guzzo v. Cristofano, 719 F.3d 100, 110 (2d Cir. 2013); Karkkainen v. Kovalchuk, 445 F.3d 280, 296 (3d Cir. 2006); Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir. 2012); Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013)); see Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004); Kanth v. Kanth, No. 99-4246, 2000 WL 1644099, at *1–2 (10th Cir. Nov. 2, 2000); Chafin v. Chafin, 742 F.3d 934, 938–39 (11th Cir. 2013); Ahmed v. Ahmed, 867 F.3d 682, 689–90 (6th Cir. 2017).
[3]. The district court decided this case using the acclimatization standard but also made detailed findings regarding the issue of shared parental intent, finding that a settled intent did not exist during the children’s lives and during much of mother’s pregnancy.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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