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Cunningham v. Cunningham, 237 F. Supp. 3d 1246 (M.D. Fla. 2017)
Habitual Residence of Infants | Wrongful Retention | Delay and Settlement of Child
Father, an American serviceman stationed in Japan, met mother, a Japanese citizen, in Okinawa. They married in May 2014. Neither spoke the other’s language. Mother became pregnant. In March 2015, father, mother and her teenage son from another relationship relocated to the United States. Father made arrangements for on-base housing in Fort Detrick, Maryland. The marital relationship deteriorated rapidly. Mother made claims that father was not providing her with sufficient food and was physically abusive. Three weeks after her arrival in the United States, and with the assistance of father and the Army command, mother and her teenage son returned to Japan.
The child was born in July 2015 in Okinawa. On September 18, 2015, mother, her teenage son, and the infant flew to the United States, joining father on the base. On October 9, 2015, the family traveled to Florida to attend a family wedding. Following a significant argument, mother insisted on returning to Japan. After a second altercation, mother was arrested for domestic violence.
Hearings were held in state court and the child was placed with paternal grandmother. Mother and her teenage son returned to Japan. Father obtained a state court judgment of dissolution of the marriage and was awarded sole custody of the child. On October 26, 2016, mother filed a petition for return under the 1980 Hague Convention in the Middle District of Florida.
The court addressed the following issues: (1) the role of parental intent in fixing the habitual residence of an infant, (2) the relevance of foreign law (of the country of a child’s habitual residence) to a determination of wrongful retention, and (3) whether a child under the age of two can become “settled” in a new environment.
The district court granted mother’s petition for return of the child to Japan. The court noted that the facts of the case were difficult to ascertain due to limited evidence and a finding that the testimony of both parents was “remarkably untruthful.” The court nevertheless undertook an in-depth analysis of the evidence that was presented.
Habitual Residence. The court ruled that the child’s habitual residence was Japan. The court noted that the Mozes v. Mozes analysis followed by the Eleventh Circuit was not relevant because Mozes addresses a change in habitual residence rather than an infant’s initial acquisition of a habitual residence. The court reviewed principles cited by other courts to determine the habitual residence of infants: (1) place of birth does not automatically become the child’s habitual residence; (2) a mother’s habitual residence does not automatically become the child’s habitual residence; (3) acclimatization of the child is not relevant because an infant lacks the ability to become acclimatized.
The court focused its analysis on whether the parties had a shared intent for where the child would live. The evidence showed that the parties were initially in agreement that the child would be raised in the United States, but that after the rapid deterioration of the marital relationship before the child’s birth, father agreed to, and assisted with, mother’s return to Japan.
Mother’s return to the United States with the newborn child in 2015 was an attempt at reconciliation. However, the court found that both parents agreed mother and child would return to Japan if reconciliation failed.
Wrongful Retention. Father argued that under Japanese law, when he removed the child from mother after the altercation of October 9, 2015, he did not breach her custody rights. Experts in Japanese law testified that domestic parental abduction in Japan is not illegal. The court rejected father’s argument, holding that
from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise.
The court found that even if father’s actions in retaining the child were not in violation of Japanese law, his violation of mother’s jointly held custody rights was wrongful within the meaning of the 1980 Hague Convention.
Delay and Settlement of the Child. Father also argued that mother’s delay in filing her application for return could be raised as a defense and that the child was now settled in the United States. The court noted that Eleventh Circuit rulings were inconsistent on whether a parent with physical custody of a child can claim wrongful retention and also noted that it was not necessary to reach a conclusion on this issue because the child had not become settled within the meaning of Article 12.
Reviewing the factors ordinarily considered relevant when determining whether a child has become “settled” in a new environment, the court found that the eighteen-month-old child was stable in her grandparents’ home, significantly bonded to her grandparents, not subject to deportation, was well-adjusted, happy, and healthy, and that the family was financially stable.
However, the court found that the child’s very young age precluded her from forming meaningful attachments to the community (such as church, school, or community activities). The court noted the dearth of legal authority to support a conclusion that a child under two years of age can become well-settled, citing in fact that in one case a judge found that “children of such tender years are too young ‘to allow meaningful connections to the new environment to evolve.’” Finding this observation persuasive, the court ruled that the evidence failed to demonstrate that the very young child had “substantial and meaningful connections to Florida.”
. See Barzilay v. Barzilay, 600 F.3d 912, 920 (“[D]etermination of habitual residence under the Hague Convention is a fact intensive inquiry particularly sensitive to the perspective and circumstances of the child.”).
. 239 F.3d 1067 (9th Cir. 2001).
. Cunningham v. Cunningham, 237 F. Supp. 3d 1246, 1265 (M.D. Fla. 2017) (citing McKie v. Jude, No. 10-103-DLB, 2011 WL 53058, at 10 (E.D. Ky. 2011) (citing Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004) and Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir. 2003)); Uzoh v. Uzoh, No. 11-cv-09124, 2012 WL 1565345, at 5 (N.D. Ill. 2012) (citing Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir. 2006))).
. Id. (citing Delvoye, 329 F.3d at 333; In re A.L.C., 607 Fed. App’x 658, 662 (9th Cir. 2015); Kijowska, 463 F.3d at 587; Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir. 1995)).
. Id. (citing Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013) (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006)); Holder, 392 F.3d at 1020–21; Simcox v. Simcox, 511 F.3d 594, 602 n. 2 (6th Cir. 2007); and Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004)).
. Id. at 1273 (quoting Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 447–48 ¶ 71 (1982) (emphasis added); also citing Ozaltin v. Ozaltin, 708 F.3d 355, 368–70 (2d Cir. 2013) (“[A] removal under the Hague Convention can still be ‘wrongful’ even if it is lawful.”)).
. Pielage v. McConnell, 516 F.3d 1282, 1289 (11th Cir. 2008), held that a state court order that prohibited the removal of a child from the state was not a wrongful retention, since the mother who was petitioning for return of the child to the Netherlands still had physical custody of the child; but see Sewald v. Resinger, No. 09-10563, 2009 U.S. App. LEXIS 29458 (11th Cir. Nov. 19, 2009), where father’s withholding of the child’s passport, which prevented mother from returning to Germany with the child, was sufficient for a finding of wrongful retention.
. Article 12 states in part that “[w]here a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”
. Cunningham, 237 F. Supp. 3d, at 1281 (“Generally, courts consider . . . ‘(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 school activities, such as team sports, youth groups, or school clubs; and (6) the respondent’s employment and financial stability.’” (quoting Fuentes-Rangel v. Woodman, 617 Fed. App’x 920, 922 (11th Cir. 2015) (quoting In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009))).
. Id. at 1282 (quoting Moreno v. Martin, No. 08-cv-22432-CIV, 2008 WL 4716958, at *21 (S.D. Fla. Oct. 23, 2008) (quoting In re Robinson, 983 F. Supp. 1339, 1345 (D. Colo. 1997) and Riley v. Gooch, Civ. No. 09-1019-PA, 2010 WL 373993, at *11 (D. Or. 2010))).
. Id. at 1282–83.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Berezowsky v. Ojeda (Berezowsky II), 652 F. App’x 249 (5th Cir. 2016) (unpublished opinion)
Re-Return Orders Following Reversal of Lower Court Order on Appeal
In keeping with a district court order for return of the child to Mexico from Texas, mother took the child to Mexico. The Fifth Circuit reversed, remanding the case and directing the district court to vacate its order of return and dismiss the case (Berezowsky I). On remand, the district court denied father’s request for a “re-return” (that is, that the child be returned back to Texas from Mexico). This decision was affirmed by the Fifth Circuit (Berezowsky II).
Berezowsky I involved a complex history of mother and father’s contemporaneous child custody litigation in both Mexico and Texas, each seeking a friendly forum for their claims. In November 2012, mother filed a Hague Convention petition in the Southern District of Texas and obtained an order returning the child to Mexico, where mother had obtained a judgment granting her custody. Pursuant to the district court order, mother returned to Mexico with the child. On appeal, the Fifth Circuit found that the child’s habitual residence was Texas, not Mexico, so it reversed and directed that the district court vacate the return order and dismiss the case. In light of the Fifth Circuit’s holding that Texas was the child’s habitual residence, father requested that the district court issue a re-return order, compelling the return of the child back to Texas. The district court refused the order. Father appealed to the Fifth Circuit, contending that the district court’s refusal to grant an order compelling the child’s return was an abuse of discretion, allowing mother to possess the child by virtue of a vacated return order.
In question were the following: first, whether the Fifth Circuit’s order on remand to the district court to vacate its order of return and to dismiss the case foreclosed the issuance of an order of re-return of the child to Texas, and second, whether the district court’s refusal to grant father’s request for a re-return order was an abuse of discretion.
The Fifth Circuit found that courts possessed inherent power to order the re-return of children, citing the Supreme Court’s decision in Chafin v. Chafin.
The court also ruled that its failure to direct the district court to order the child re-returned did not foreclose the district court from issuing such an order. Although issues decided implicitly by courts of appeals may be reexamined by trial courts, a court may not proceed on matters decided by “necessary implication.” Given that a re-return order was not foreclosed by the circuit court’s order on remand (to vacate the order of return and order the case dismissed), the district court was free to consider the issue of re-return and grant or deny the same. Finding no abuse of discretion in the lower court’s denial of father’s re-return motion, the judgment was affirmed.
. Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014).
. Re-return orders are also discussed in the case analysis of In re A.L.C., 607 Fed. App’x 658 (9th Cir. 2015), reviewed concurrently with this case.
. 133 S. Ct. 1017 (2013); see also In re A.L.C., 607 Fed. App’x at 663.
. Berezowsky v. Ojeda (Berezowsky II), 652 Fed. App’x 249, 252 (5th Cir. 2016).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Alcala v. Hernandez, 826 F.3d 161 (4th Cir. 2016)
Settlement | Immigration Status | Return Despite Existing Defense
This case deals with what factors may establish the Article 12 defense of delay plus settlement. Here the parties conceded that father’s petition for return of his two children was filed more than one year after the children were removed. The Fourth Circuit affirmed the district court’s finding that the children were settled. The court also examined immigration status and whether return should be granted despite proof of a valid defense.
Mother, father, and their two children were all Mexican nationals living in Cosolapa, Oaxaca. In June 2013, mother surreptitiously left Mexico with the children, then eight and two years of age, and illegally entered the United States two weeks later.
She and the children settled in South Carolina close to her family members, including her mother and two sisters. Her sisters had also entered the United States illegally eight to nine years before, and they now owned and operated two small businesses in Florence, South Carolina; they also participated in the Deferred Action for Childhood Arrivals (DACA) program. Neither mother nor the children spoke English when they arrived in the United States. Mother enrolled her eight-year-old son in elementary school upon arrival in Florence, and over the next fourteen months she changed his school twice to accommodate short-distance moves she made to improve their living conditions.
Sixteen months after the children’s removal from Mexico, father filed a petition for their return. By May 2015, at the time of trial, the parties’ older son spoke English in school, was getting mostly As and Bs on his report card, and was performing “exceptionally well” in school according to school officials. The mother and children had family ties nearby. The son had made friends at school, church, and within the family. Mother was gainfully employed and able to provide for the children’s needs. After a two-day bench trial, the district court found that although mother and the children were present illegally in the United States, the children had become well settled in their new environment, and the court denied father’s petition for return to Mexico. The Fourth Circuit affirmed.
Settlement Generally. The issue of settlement of a child under Article 12 presented a case of first impression for the Fourth Circuit. The court adopted a definition of settlement consistent with Lozano v. Montoya Alvarez and the Second and Fifth Circuits' standards. Citing these, the court reasoned that “for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.”
Although approving the district court’s consideration of the factors set forth by the Second Circuit, the Fourth Circuit found that the ultimate purpose of the settlement inquiry is to determine, from a “holistic” standpoint, whether a child has significant connections demonstrating a secure, stable, and permanent life; it is not an inquiry into the child’s “best interests,” which is relevant when determining custody. The circuit court found sufficient evidence to sustain the district court’s determination that the older child was well settled, rejecting father’s objections to mother’s financial security and son’s degree of settlement.
Immigration Status. The court also agreed with three other circuits in adopting a rule that immigration status should be considered along with the totality of circumstances and “is neither dispositive nor subject to categorical rules.” Here, the district court had found nothing to suggest that the child was likely to be deported in the near future and had found no indications that ineligibility for government benefits would upset his stability. Taken as a whole, the degree of the settlement of the child compensated for any impact caused by his immigration status.
The Fourth Circuit confirmed these findings, holding that
[n]either the Hague Convention nor ICARA makes a lack of immigration status a bar to finding that a child is settled. Indeed, it runs counter to the purpose of the exception to read such a categorical bar into the treaty. If a child is functionally settled, such that ordering his or her return would be harmfully disruptive, it would be odd to nevertheless order that disruption based on a formal categorization.
Return Request Despite Establishment of Defense. Father urged the circuit court to return the children regardless, citing Article 18, a provision that gives courts discretion to order a child’s return despite the demonstration of a valid defense to return. The Fourth Circuit acknowledged that it retained the power to order the children’s return despite the establishment of an Article 12 defense; however, the exercise of discretion to return a child in the face of an established defense is grounded in equitable principles, and by itself, a mere wrongful removal would not suffice to justify such a return, since wrongful removal is prerequisite to the establishment of the defense itself.
. 134 S. Ct. 1224 (2014).
. Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012); Hernandez v. Pena, 820 F.3d 782, 787–88 (5th Cir. 2016).
. Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016).
. Id. at 171 (“The district court here looked to . . . ‘(1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.’”) (quoting Lozano, 697 F.3d at 57).
. The Second, Fifth, and Ninth Circuits. See In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009); Lozano, 697 F.3d at 56; and Hernandez, 820 F.3d at 787–88.
. Alcala, 826 F.3d at 174 (citing Lozano, 697 F.3d at 56–57).
. Id. at 173.
. “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.” Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, Article 18.
. Alcala, 826 F.3d at 175.
. Id. at 175 (citing Yaman v. Yaman, 730 F.3d 1, 4, 21 (1st Cir. 2013).
. Id. at 175.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016)
Exercise of Custody Rights | Child’s Objection to Return
The exercise of custody rights exists where a parent maintains some sort of relationship with the child. The objection of the child to return may not be sustained by mere preference, as opposed to an actual objection, but the child’s preference to remain with a parent may be relevant to sustain an objection to return.
Father timely petitioned for the return of his eleven-year-old daughter to Chihuahua, Mexico. The child was removed from Mexico by her mother in October 2013 without father’s permission. At the time the child was conceived, both mother and father were married to other individuals. Father acknowledged the child as his and attended the birth. Thereafter he still lived with his wife, but stayed at mother’s house in Torreón—the domicile of mother and child—between one to five days a month. He also provided financial assistance, including paying tuition for the child to attend private school. In 2011 or 2012, mother and the child moved from Torreón to Chihuahua. Despite the travel time of a few hours between the cities, father visited every four to six weeks. Mother and the child moved to Texas in October 2013. Father attempted to contact the child in Texas but had limited contact with her.
Father described his relationship with his daughter as “beautiful.” Mother testified that she would never allow the child to be alone with her father and that father only spoke to the child to inquire about mother’s love life. Mother testified that father was drunk and almost always violent with her on his visits.
The district court questioned the child in camera twice during the proceeding. The child explained that although she was happy living in both Mexico and Texas, she was happier in Texas because she wanted to learn there.
The district court denied father’s petition for return. The court concluded that father did not exercise his custody rights: there was insufficient evidence that he physically cared for the child or provided financial assistance and sufficient evidence that the purpose of his visits were to harass mother rather than spend time with the child. The court also noted the lack of evidence of a custody determination or other judicial relief when mother moved five hours away from Torreón.
The district court found that the child was of sufficient age and maturity for the court to consider her testimony and found a “clearly expressed desire” to remain with her mother in the United States. This was confirmed by her in camera statement to the court that she would be happier remaining in the United States.
Exercise of Custody Rights. The Fifth Circuit reversed the district court’s holding that father had not exercised his custody rights. The court affirmed its previous expansive interpretation of “exercise” of custody rights based upon the Sixth Circuit’s holding in Friedrich II and its own holding in Sealed Appellant:
Under this standard, “when a parent has custody rights under the laws of that country, even occasional contact with the child constitutes ‘exercise’ of those rights. To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child.” “Once it determines that the parent exercised custody rights in any manner, the court should stop—completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of federal courts.”
The circuit court dismissed mother’s argument that father’s visits with the child were merely collateral to his main interest in maintaining a “mistress relationship” with her. The court found that father exercised his custody rights by providing financial support, and that father maintained “some sort of relationship” with the child.
Child’s Objection to Return. The Fifth Circuit vacated the district court’s decision to deny return on the basis of the child’s objection to return and remanded the case for further consideration.
The “age and maturity” exception to return requires two prongs: (1) that “the child has attained an age and degree of maturity at which it is appropriate to take account of the child’s views” and (2) the child objects to being returned. The circuit court sustained the district court’s finding that the child had attained a sufficient degree of age and maturity, finding no clear error. The Fifth Circuit found, however, that the child did not object to being returned to Mexico, and only expressed a preference for remaining in the United States. The circuit court emphasized that the “age and maturity” exception was to be applied narrowly and distinguished between the two concepts:
A preference is not an objection. This is not a matter of magic words or talismanic language. There is a substantive difference between preferring to live in one of two countries—when living in either country would be acceptable—and affirmatively objecting to returning to one country—when living in that country would be unacceptable. Only an objection is sufficient to trump the Convention’s strong presumption in favor of return.
The circuit court vacated the district court’s finding that the child’s preference served as grounds to deny return; it remanded the case to the district court to conduct a new interview of the child to reassess the question of whether the child actually objected to returning to Mexico.
Relevance of Child’s Preference for a Certain Parent. The Fifth Circuit’s opinion in this case stands as the only circuit court case providing an in-depth discussion of the relevance of the child’s preference for living with a certain parent.
Here, both mother and the child’s guardian ad litem argued that the child had shown a preference for living with her mother in the United States. This preference was based upon the child’s perception of father’s psychological harassment of her mother, his physical abuse of her mother, father’s use of foul language, his interrogation of the child for information regarding her mother, and her fear of her father. In response, father argued that adopting a rule that allowed a child to object to return on the basis of wanting to live with a particular parent would embroil the court in questions relating to child custody issues—which the Convention eschews.
The Fifth Circuit disagreed with father’s argument. It reasoned that the Pérez-Vera report noted that the “age and maturity” defense gave children “the possibility of interpreting their own interests.” The court interpreted the objection provision of the Convention as follows:
[T]he drafters of the Convention simply deemed it inappropriate to return a mature child “against its will”—whatever the reason for the child’s objection. In such cases, the child’s autonomy trumps the Convention’s interest in preventing wrongful removals.
The court reasoned that a rule prohibiting consideration of the child’s preference to remain with a particular parent would not be practical; a child’s desire to live with the abducting parent is relevant to the child’s immediate “interests.” If children can only express an opinion about their preferred country, they may be coached to suppress custody preferences and focus on facts relating to their habitual residence. This would give trial courts the “impossible task” of determining whether the child was concealing his or her actual feelings. The court disagreed that consideration of the child’s preference as to which parent she would like to live with would simply encourage the abducting parent to coach the child. If the child’s preference appears to be the product of a parent’s undue influence, it should be given little weight. The court held that whether the child
wants to live with the abducting parent is very relevant to her interpretation of her immediate “interests.” Indeed, it is likely the most important consideration. . . . [A]n objection by the child to being returned, if found to be a considered and mature decision, will be honored whether or not it rests in part on her objection to living with the abducting parent.
The Fifth Circuit acknowledged that contrary authority exists, citing Hirst v. Tiberghien, Haimdas v. Haimdas, Lieberman v. Tabachnik, and Hazbun Escaf v. Rodriquez, but comparing these with Bowen v. Bowen and Custodio v. Samillan.
. Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).
. Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004).
. Rodriguez v. Yanez, 817 F.3d 469, 472–73 (5th Cir. 2016) (footnotes omitted).
. 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.
. Rodriguez, 817 F.3d at 477 (footnote omitted).
. Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law para. 30, at 433 (1982).
. Rodriguez, 817 F.3d at 475–76.
. Id. at 476.
[10. 947 F. Supp. 2d 578, 597 (D.S.C. 2013).
. 720 F. Supp. 2d 183, 208 (E.D.N.Y. 2010), aff’d, 401 F. App’x 567 (2d Cir. 2010).
. 625 F. Supp. 2d 1109, 1126 (D. Colo. 2008) (quoting In re Nicholson, No. 97-1273-JTM, 1997 WL 446432 (D. Kan. July 7, 1997)).
. 200 F. Supp. 2d 603, 615 (E.D. Va. 2002).
. No. 2:13-cv-731, 2014 WL 2154905, at *16 (W.D. Pa. May 22, 2014) (objection included consideration that child was closer to father than mother).
. No. 4:15-CV-01162 JAR, 2015 WL 9477429, at *5 (E.D. Mo. Dec. 29, 2015) (in addition to other factors, children preferred not to return to their father).
This document is part o The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Judge James Garbolino, Judge Marcia Krieger (D. Colo.), and Judge Peter Messitte (D. Md.) discuss the five defenses to an action for return of a child. These five defenses are narrowly defined and require specific standards of proof. A court also may refuse a petition for return of a child if the child objects to return, and, based on the age and maturity of the child, the court determines it is appropriate to consider the child’s views. Practical issues about interviewing children for such a determination are also discussed.
This is one of several 1980 Hague Convention on International Child Abduction video tutorials.
This video is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Judge James Garbolino, Judge Catherine Serrette, and Judge Peter Messitte cover the basic elements of a Hague Convention case, including the specific requirements of the Convention, the most common defenses and their applicable standards of proof, available sources of law, and the Central Authority. The U.S. Central Authority is the U.S. State Department. Within the State Department, the Office of Children’s Issues is responsible for handling child abduction cases.
This is one of several 1980 Hague Convention on International Child Abduction video tutorials.
This video is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014)
Unaccompanied Alien Children | Standing to Appeal
This case involves three Mexican children who lived all of their lives in Mexico. In June 2012, the children’s aunt and uncle wrongfully removed the children from their home, in Ciudad Juarez, Chihuahua, across the border into El Paso, Texas. At the time of their removal, the children lived with their mother and her boyfriend. After repeated requests for the children’s return, the children’s aunt took them to the border in El Paso. As the children were walking on the Bridge of the Americas, they turned themselves in to officials of the Department of Homeland Security and requested to remain in the United States because of their fear that their mother’s boyfriend was a gang member involved in drug abuse, trafficking, and child abuse. The children were ultimately transferred to the Office of Refugee Resettlement (ORR), which in turn placed the children with Baptist Children’s Services, which in turn transferred the children to a foster home in San Antonio. Because of their status as “unaccompanied alien children” the children were appointed counsel. Their attorney applied for relief from removal including a request for asylum.
Mother filed a petition for return of the children pursuant to the 1980 Hague Convention, naming the children’s aunt and uncle and Baptist Children’s Services as respondents, but not naming ORR. At the trial, the children’s aunt and uncle did not participate, and Baptist Children’s Services took no position whether the children should be returned, but argued that ORR was the proper party-respondent. The children’s asylum attorney participated, and requested that the court allow the children to intervene or be represented by a guardian ad litem. In response to the district court’s inquiries to ORR, ORR took no position on the court’s jurisdiction under the circumstances, or whether the children would be subject to a grave risk if returned to Mexico. ORR requested the court to hold the case in abeyance pending the outcome of the children’s request for asylum.
The district court granted the petition for return, denying the children’s request for a guardian ad litem or intervention on their own behalf, but the court stayed the order of return pending appeal. Subsequently, the children’s request for asylum was granted pursuant to 8 U.S.C. § 1158.
On an interim appeal, the Fifth Circuit ruled that the U.S. government should be joined pursuant to FRCP Rule 19. In its final opinion, the circuit court vacated the district court’s return order and remanded the case for further proceedings.
Standing. The Fifth Circuit determined that the children had standing to appeal, based upon the test enunciated in SEC v. Forex Asset Mgmt. LLC, where the court asked (1) “whether the non-party actually participated in the proceedings below”; (2) whether “the equities weigh in favor of hearing the appeal”; and (3) whether “the non-party has a personal stake in the outcome.” The court noted that aside from the children’s immigration attorney, no person or organization responded meaningfully to mother’s petition in order to advance defenses that could defeat the petition for return, noting that the case itself placed the children’s well-being at stake.
Jurisdiction and Proper Party-Defendants. The children challenged the jurisdiction of the court to entertain a return application because no proper party-respondent had been named. They argued that ORR was the only legal entity with guardianship powers over the children. The court disagreed, finding that identification of and service upon the director of Baptist Children’s Services was sufficient to make the director a proper party-respondent. Moreover, the failure to name the government did not create a jurisdictional defect, because the director of Baptist Children’s Services was in a position to oversee the return of the children if ordered, and the court’s return order had the potential to redress the claimed injury.
Notwithstanding the foregoing, the Fifth Circuit concluded that joinder of the government was required in this case because (1) it had been the temporary legal guardian of the children, (2) the placement status of the children was uncertain (the court was informed that Catholic Charities may take over placement of the children), and (3) an order directed solely to Baptist Children’s Services was potentially unenforceable, all of which made the government’s joinder necessary.
Intervention of the Children on Their Own Behalf. The court found that the children were entitled to formal legal representation: their fundamental interests were at stake and no respondent made an effort to represent those interests. On remand, the district court was directed to appoint a guardian ad litem. The children were denied status as actual parties to the Hague Convention proceeding. The court reasoned that although the children’s asylum rights were relevant to the children’s defenses in the Hague Convention proceedings, the existence of those rights did not confer additional rights entitling the children to intervene as parties in those proceedings.
Effect of Grant of Asylum. Does the asylum order trump an order of return? The children argued that the grant of asylum should prevail and cannot be superseded by an order of return in the Hague case. The court found to the contrary.
The children were granted asylum pursuant to 8 U.S.C. §§ 1158, 1229a, and 1232. Asylum under those statutes is based upon a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” A grant on this basis is binding upon the Attorney General and the Secretary of Homeland Security, but there is no authority to suggest that such a grant prohibits the return of children by a court order.
The Fifth Circuit did, however, determine that the grant of asylum was relevant to the question whether any of the Convention defenses applied, given the overlap between the grounds for asylum and Article 13(b)’s “grave risk” and Article 20’s “human rights” exceptions.
The case was remanded to the district court to consider the evidence from the asylum proceedings before determining whether to enforce the previously issued order for return of the children.
Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)
Mozes remains the most-followed case for determining habitual residence and stands out as the most-cited circuit case dealing with the 1980 Convention.
The case involved a mother who moved from Israel to Beverly Hills with the parties’ four children for a period of fifteen months so that the children could be exposed to an “American experience.” Father agreed to the move, but the parents disagreed as to what would occur after the expiration of the fifteen-month period.
The opinion focuses on the general principle that one may not acquire a new habitual residence unless there is a mutual intent to abandon the old one:
While the decision to alter a child’s habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone. First, it requires an actual “change in geography.” Friedrich, 983 F.2d at 1402. Second, home isn’t built in a day. It requires the passage of “[a]n appreciable period of time,” C v S (minor: abduction: illegitimate child),  2 All E.R. 961, 965 (Eng.H.L.), one that is “sufficient for acclimatization.” Feder, 63 F.3d at 224.
On the question of acclimatization, the court observed,
Despite the superficial appeal of focusing primarily on the child’s contacts in the new country, however, we conclude that, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned.
The Mozes opinion found the Sixth Circuit’s test for determining habitual residence unduly broad (“focus on the child, not the parents”) and also concluded that the court improperly disregarded parental intent.
The Third, Sixth, and Eighth Circuits’ holdings regarding the issue of habitual residence all, to some extent, contradict the holding in Mozes. Those circuits focus on an analysis of the facts and circumstances surrounding the child’s existence in the particular place in question.
. Mozes v. Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001).
. Id. at 1079.
. Friedrich v. Friedrich (Friedrich I), 983 F.2d at 1401.
. See Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995); Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006); Friedrich I, 983 F.2d 1396 (6th Cir. 1993); and Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003).
Abbott v. Abbott, 560 U.S. 1 (2010)
Interpreting the Convention | Custody Rights | Ne Exeat Clauses
In Abbott v. Abbott the Supreme Court held that a ne exeat order confers a right of custody upon the left-behind parent, entitling that parent to maintain an action under the Convention. This decision resolved a circuit split over the implications of ne exeat orders.
Father and mother engaged in custody litigation in Chile. Pursuant to a Chilean decree, mother was awarded daily care and control of the child and father was granted visitation. Under Chilean law, once a request for a visitation order is granted, a ne exeat order requiring father’s consent for removal of the child from Chile enters into force. In violation of the ne exeat order, mother took the child to Texas and commenced divorce and child custody proceedings there. Father’s petition for return of the child was denied by the district court. On appeal, the Fifth Circuit affirmed the district court’s decision.
In reaching its decision, the Supreme Court examined several factors.
The Text. The Court first focused upon the language of the Convention in Article 5: “‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” The ne exeat provision in Chilean law conferred a joint right to determine the child’s country of residence. The Court found this to be “a right of custody under the Convention.”
Treaty Interpretation by Central Authority. The Court observed that the State Department has long interpreted a ne exeat clause to confer “rights of custody” within the meaning of Article 5. The interpretive opinion of the executive branch is entitled “great weight” and “[t]here is no reason to doubt that this well-established canon of deference is appropriate here.”
Reliance upon Sister State Interpretation. The Court accorded “considerable weight” to opinions of other signatory nations on this issue. The acceptance of ne exeat clauses establishing custody rights found broad acceptance in international case law, including decisions from the English High Court of Justice, the House of Lords, Israel, Austria, South Africa, and Germany.
Purposes of the Convention. The Hague Convention was intended to protect the custody rights of the left-behind parent and discourage the abducting parent from engaging in international forum shopping. The Court quoted the dissenting opinion in Croll, where then-Second Circuit Judge Sonia Sotomayor made this observation:
The Convention should not be interpreted to permit a parent to select which country will adjudicate these questions by bringing the child to a different country, in violation of a ne exeat right. Denying a return remedy for the violation of such rights would “legitimize the very action—removal of the child—that the home country, through its custody order [or other provision of law], sought to prevent” and would allow “parents to undermine the very purpose of the Convention.” Croll, 229 F. 3d, at 147 (Sotomayor, J., dissenting).
Need for Consistency of Interpretation. The Supreme Court also advised that the Convention should be interpreted with a view toward establishing consistency among signatory states. This is especially true now that ninety-three countries have adopted the Hague Convention.
The Court observed that the interpretation of the Convention on a
uniform text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition.
. For a more detailed analysis of the Abbott decision, see James D. Garbolino, The United States Supreme Court Settles the Ne Exeat Controversy in America: Abbott v. Abbott, 59 Int’l & Comp. L.Q., Oct. 2010, at 1158–67.
. 560 U.S. 1 (2010).
. A ne exeat order typically restrains a parent, or both parents, from removing a child from the court’s jurisdiction or from transporting a child across an international frontier. However, this prohibition is not absolute: if permission to remove the child is unreasonably withheld, or a court determines that good cause for continued restraint no longer exists, the ne exeat order may be vacated by a court of competent jurisdiction.
The Fourth and Ninth Circuits followed the Second Circuit decision in Croll v. Croll, 229 F.3d 133 (2d Cir. 2000); see Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003); Gonzales v. Gutierrez, 311 F.3d 942 (9th Cir. 2002). The Eleventh Circuit, in contrast, held that a ne exeat provision in a Norwegian custody agreement conferred a right that would satisfy the Convention’s definition of “custody rights.” Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004).
. Abbott, 560 U.S. at 7.
. Citing Sumitomo Shoji America, Inc., v. Avagliano, 457 U.S. 176, 184–85 n. 10 (1982).
. Id. at 12.
. Abbot, 560 U.S. at 16 (citing El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999) (quoting Air France v. Saks, 470 U.S. 392, 404 (1985))).
. The Court continued,
It is true that some courts have stated a contrary view, or at least a more restrictive one. The Canadian Supreme Court has said ne exeat orders are “usually intended” to protect access rights. Thomson v. Thomson,  3 S.C.R. 551, 589–590, 119 D.L.R. (4th) 253, 281; see D.S. v. V. W. [sic],  2 S.C.R. 108, 134 D.L.R. (4th) 481. But the Canadian cases are not precisely on point here. Thomson ordered a return remedy based on an interim ne exeat order, and only noted in dicta that it may not order such a remedy pursuant to a permanent ne exeat order. See  3 S.C. R. [sic], at 589–590, 119 D.L.R. (4th), at 281. D.S. involved a parent’s claim based on an implicit ne exeat right and, in any event, the court ordered a return remedy on a different basis. See  2 S.C. R. [sic], at 140–141, 142, 134 D.L.R. (4th), at 503–504, 505.
Abbott, 560 U.S. at 17.
. Abbott, 560 U.S. at 21.
. See Silberman, Linda J., Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049 (2005). The expansion of signatories to the Convention has resulted in a mixture of legal systems based upon common-law, civil-law, Islamic, Judaic and various other combinations of the foregoing.
. Ninety-three countries have ratified, acceded, or succeeded to the Convention. Of those, the treaty is “in force” between the United States and seventy-three other countries. The last country to have ratified the Convention was Japan, when their ratification become effective April 1, 2014.
. Abbot, 560 U.S. at 12.
E.R.S.C. v. Carlwig (In re A.L.C.), 607 Fed. Appx. 658 (9th Cir. 2015)
Mother and father established their residence in Sweden, along with their son, A.L.C. While living in Sweden, mother became pregnant with their second child, E.R.S.C. Mother wanted to give birth to the child in the United States, so father purchased round-trip tickets from Stockholm to Los Angeles. The travel arrangements provided for departure in January 2013, and return in September 2013. E.R.S.C. was born in May 2013 in the United States. Mother refused to return to Sweden. Father brought his petition for the return of both children to Sweden in February 2014. After an evidentiary hearing, the district court found that Sweden was the habitual residence of both children, and ordered their return to Sweden.
In a memorandum opinion, the Ninth Circuit affirmed the order of return for A.L.C., but reversed the finding that E.R.S.C. was a habitual resident of Sweden. The Ninth Circuit found that E.R.S.C. had no habitual residence, and thus fell outside the purview of the Hague Convention.
The Ninth Circuit’s affirmance of the district court’s finding that the habitual residence of A.L.C. was Sweden is not surprising under the facts of the case. The child had lived in Sweden for over a year with both parents. It was only when mother became pregnant with her second child, that there was any discussion of A.L.C. traveling to the United States with his mother. The evidence supported the conclusion that the trip to the United States was not a permanent one, and that there was no evidence that both parties intended to abandon Sweden as A.L.C.’s residence. After the birth of E.R.S.C., it became apparent that mother did not intend to reunite with her husband in Sweden. Father filed a timely petition for the return of both children. The court relied on Mozes v. Mozes, finding that there was a lack of shared intent to support the acquisition of a new habitual residence. Lacking a shared intent to abandon Sweden as the child’s habitual residence, the only consideration left was to determine whether an acclimatization occurred to the extent that a return to Sweden would amount to removing A.L.C. from the place that he called home. While there was some evidence of acclimatization in Los Angeles, it did not rise to the level that it overcame the last shared intentions of the parents.
In what appears to be a unique holding, the Ninth Circuit reversed the finding of the district court regarding the infant E.R.S.C. and found that the child had not acquired a habitual residence. The court made the following observations: the United States was not the child’s habitual residence simply because the United States was the country of the child’s birth; there was a conflict of parental intent as to the child’s habitual residence; and no evidence of acclimatization was presented. Consequently, the court concluded that no habitual residence for the infant E.R.S.C. had come into existence, citing the comments of Paul R. Beaumont and Peter E. McEleavy: “if an attachment to a State does not exist, it should hardly be invented.” The court also noted the dicta in Delvoye v. Lee, stating that when a “conflict [of parental intent] is contemporaneous with the birth of the child, no habitual residence may ever come into existence.”
Editor’s Note: The ultimate disposition in this case will result in the courts of Sweden having jurisdiction to resolve custody issues relating to A.L.C. and in all likelihood the courts of California having jurisdiction over the custody questions involving E.R.S.C. pursuant to the provisions of the U.C.C.J.E.A. The Ninth Circuit recognized the conundrum, but specifically rejected the district court’s rationale in finding E.R.S.C. was habitually resident in the United States:
We reject the other rationales cited by the district court in deciding E.R.S.C. was a habitual resident of Sweden. The district court’s explanations that it would be untenable to split up the siblings for custody determinations and that Mr. Carlwig is employed in Sweden while Ms. Carlwig “is unemployed here in the U.S. and rel[ies] on financial support from [the] Father as well as governmental assistance,” because they go to the merits of the custody claims and are not relevant to the Convention’s required analysis. See 22 U.S.C. § 9001(b)(4) (“The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.”).
. The decision is unpublished, with the court noting that “[t]his disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.” Ninth Circuit Rule 36.3 states in part:
(a) Not Precedent. Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.
(b) Citation of Unpublished Dispositions and Orders Issued on or After January 1, 2007. Unpublished dispositions and orders of this Court issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with FRAP 32.1.
Federal Rules of Appellate Procedure rule 32.1 states in part that:
(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and
(ii) issued on or after January 1, 2007.
. 239 F.3d 1067 (9th Cir. 2001).
. Id. at 1081.
. The Hague Convention on International Child Abduction 89, 112 (1999).
. 329 F.3d 330, 333 (3d Cir. 2003).
. E.R.S.C. v. Carlwig (in re A.L.C.), 607 Fed. Appx. 658, 662 (9th Cir. 2015).