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International Law & Litigation
Parent’s Refusal to Return | Child’s Objection to Return | Grave Risk & Ameliorative Measures
A father petitioned for the return of his child to Ecuador. Although grave risk was established, the court ordered that the child be returned because sufficient ameliorative measures were put in place.
By summary order, the Second Circuit affirmed the district court’s order for the return of the child.
A son was born to an unmarried couple. After the couple’s separation in 2011, the mother and child lived together in one city in Ecuador, and the father lived in another. There was no formal custody agreement, but the child spent time with the father on weekends and holidays. The father owned a shop selling firearms and accessories. In 2015, the mother secured an order from Ecuadorian courts compelling the father to pay child support. After she sought child support, the father initiated an action in Ecuadorian family court accusing the mother of physically abusing the child. The Ecuadorian court found her innocent of the allegation, but it issued an order for family therapy. The mother produced records showing her participation. Although records failed to show the father’s participation, it was unclear whether the order for therapy applied to him. Over his objection, the mother obtained orders from the Ecuadorian family court authorizing her to take the nine-year-old child to the United States for a one-month trip in April 2018. She failed to return the child to Ecuador on May 2, 2018, as required by the court order. Following this, the father petitioned for the return of his son to Ecuador.
The child was interviewed by the district court judge in the presence of counsel and a court reporter. His parents were not present. The child primarily opposed return to Ecuador because he believed that his father hated him. He disclosed that he lived with his mother and visited his father about once a week, except when he declined to. The child indicated that he declined to see his father on occasion because his father called him names, struck him, and locked him up in the house with the child’s older half-sister. The child testified that he was struck with a belt and a stick. Sometimes he was struck over the top of his clothing and at other times on his bare skin. The child also described an incident where the father handed him a loaded firearm, and he accidentally discharged the firearm into a computer.
The mother testified that she would not return to Ecuador if the child was returned. Her refusal was based on her fear for her personal safety due to the father’s abuse and his gun business. The trial court found, based on clear and convincing evidence, that the child suffered physical and emotional abuse by his father and his father’s relatives, and that the child faced a grave risk of physical and psychological harm if returned to the custody of his father in Ecuador. The court also found that the boy was mature enough and old enough for the court to consider his objections to return.
Grave Risk Pursuant to Article 13(b). The district court gave detailed consideration to the issues bearing on grave risk. It found several factors supporting the conclusion that return of the child to Ecuador would constitute a grave risk, including sporadic instances of emotional and physical abuse and placing a loaded weapon in the child’s hands resulting in an accidental discharge. Following Second Circuit precedent and the dictates of Article 13(b), the court determined that if the child was returned, he would be subject to grave risk of physical or psychological harm. However, the court found that the other arguments raised by the mother’s counsel did not support grave risk.
Child’s Own Objections to Return. Although the child’s age and maturity were sufficient to require consideration of his objections to return, the court found that these objections were insufficient to prevent return.
Domestic Violence Toward the Mother. The court found the father’s abusive and demeaning conduct toward the child’s mother was unacceptable but did not create a grave risk of harm to the child.
Child Well Settled. The court considered the argument that the child was so settled in his life in New York that repatriation to Ecuador would be disruptive and constitute grave risk. The court found that unlike the unique factual situation in Blondin, this case presented no exceptional facts establishing that repatriation would result in risk of harm.
Ameliorative Measures. The court proceeded to analyze the directives of the Blondin line of cases that require a court to look to a “full range of options” that might allow the child’s safe return. It considered whether the authorities in Ecuador could mitigate any risk that repatriation might trigger. The mother alleged that if the child was ordered back to Ecuador, no ameliorative measures could protect the child for the following reasons: (1) the fact that she would not return with the child, which foreclosed any chance that she might be awarded custody of the child in Ecuador; (2) her experience with past instances of the father’s threats of physical harm and death; and (3) the father’s likely refusal to abide by court orders, even if she prevailed in a custody case. The court rejected these objections, finding that the mother’s refusal to return to Ecuador with her child should not be rewarded, as her actions effectively blocked any possibility of ameliorative measures.
The district court found that there was not sufficient evidence to show that Ecuador’s courts were unable or unwilling to provide adequate protection for the child. Both the mother and the father had made use of the Ecuadorian court system, and there was no evidence that the mother had been denied assistance by the police or justice system regarding her claims of physical abuse. Accordingly, the court found no reason to employ undertakings to ensure the safety of the child.
Joint Status Update. In its order for return, the district court required the parties to meet and confer regarding the details of the child’s return to Ecuador, including “any ameliorative measures, enforceable by the courts in Ecuador, to protect [the child] from harm pending the Ecuadorian court’s custody determination.” The parties subsequently filed a joint status update setting forth the agreed-upon ameliorative measures.
The Second Circuit Affirms. The mother contended that because she would not be returning to Ecuador, the efficacy of ameliorative measures needed to be assessed in light of her absence. The Second Circuit agreed with her contention. Quoting the district court’s order, the Second Circuit found that the district court “too quickly discounted” the mother’s argument that she would not return to Ecuador with the child. The appellate panel referred to its previous holdings regarding ameliorative measures, noting that a trial court must assess the efficacy of protective measures in light of the abducting parent’s refusal to return with the child:
This Court has instructed that “[i]n cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b) [of the Hague Convention], it must examine the full range of options that might make possible the safe return of a child to the home country.” Such ameliorative conditions “balanc[e] our commitment to ensuring that children are not exposed to a grave risk of harm with our general obligation under the Hague Convention to allow courts in the country of habitual residence to address the merits of custody disputes.” Thus, where repatriation would return a child to the sole physical custody of their abuser, a district court does not properly weigh the safety of the child if it fails to examine the full range of ameliorative measures, including those that are enforceable when the respondent parent has chosen not to return.
But the failure of the district court to specifically examine the enforceability of the ameliorative measures in light of the mother’s refusal to return to Ecuador did not require a remand. Instead, the Second Circuit took notice of the joint status update (JSU) that the parties filed in response to the district court’s order. The JSU set forth the ameliorative measures that the parties had agreed to. It provided measures for
- weekly visits between the child and the mother’s family
- daily conversations by video or telephone between the mother and the child
- restriction on the child’s access to firearms
- a prohibition on firearms in child’s residence
In light of the measures contained in the JSU, the Second Circuit concluded that the ameliorative measures actually in place were sufficient to mitigate the risk of harm to the child. The district court’s decision and return order were affirmed.
. Summary orders do not have precedential effect. The order may be cited consistent with Federal Rule of Appellate Procedure 32.1 and local order 32.1.1.
. Blondin v. Dubois (Blondin II), 189 F.3d 240, 246 (2d Cir. 1999); Souratgar v. Lee, 720 F.3d 96, 102 (2d Cir. 2013); Davies v. Davies, 717 F. App’x 43, 48–49 (2d Cir. 2017). The district court referenced four decisions made in the Blondin litigation:
There are four Blondin decisions relevant to this Order: (1) Blondin v. Dubois, 19 F. Supp. 2d 123, 124–26 (S.D.N.Y. 1998) (“Blondin I”) (finding grave risk of harm exception applied); (2) Blondin v. Dubois, 189 F.3d 240, 242–44 (2d Cir. 1999) (“Blondin II”) (affirming finding of grave risk but remanding for district court to determine whether ameliorative measures could mitigate risk of harm); (3) Blondin v. Dubois, 78 F. Supp. 2d 283, 288–93 (S.D.N.Y. 2000) (“Blondin III”) (finding that no ameliorative measures would overcome grave risk of harm due to relapse of children’s traumatic stress disorder); and (4) Blondin v. Dubois, 238 F.3d 153, 157 (2d Cir. 2001) (“Blondin IV”) (affirming finding below and approving district court’s consideration of child’s well-settlement and expressed wishes to remain in the United States under Article 13(b)).
Rubio v. Castro, No. 19-CV-2524(KAM)(ST), 2019 U.S. Dist. LEXIS 178261, at *54 n. 14 (E.D.N.Y. Oct. 15, 2019).
. Rubio, 2019 U.S. Dist. LEXIS 178261, at *80 (E.D.N.Y. Oct. 15, 2019).
. Id. at *102–103.
. Id. (quoting Souratgar, 720 F.3d 96 at 103.
. Id. at *113.
. Rubio v. Castro, No. 19-3740, 2020 U.S. App. LEXIS 14905, at *7 (2d Cir. May 11, 2020) (“‘[W]here an ameliorative measure would include court-ordered custodial arrangements to protect the child, a respondent should not be rewarded for declining to ameliorate the risk by refusing to return with a child to the habitual residence, and thus risk losing custody.’”).
. Id. at *7–*8 (citations omitted).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Defenses | General Denial
In this case, a father presented a prima facie case for the return of his child, but the mother waited until her opening statement at trial to present her affirmative defenses.
The district court held that the mother’s general denial to the father’s petition for return waived her right to present affirmative defenses when she attempted to raise them for the first time in her opening statement. The father was prejudiced by her failure to raise the defenses earlier.
A mother and father, an unmarried couple, lived in Cancún, Mexico. Their only child, E.A.O., was born there in 2014. The parents’ relationship began to deteriorate when their daughter was a toddler, and the couple separated in January 2018. The father moved to a nearby apartment after the separation, and he continued to see his daughter frequently and be involved in her life, paying for piano lessons, private school tuition, and sometimes rent for the mother’s apartment. In July 2019, the mother took their child to Texas, where she took up residence with a boyfriend in Odessa. The child had been a resident of Mexico her entire life up to the time her mother took her to Texas.
In response to the father’s timely petition for return of the child, the mother filed a general denial and did not raise any affirmative defenses. At trial, however, she raised the following affirmative defenses for the first time as part of her opening statement: (1) the child was settled in her new environment; (2) the father had consented to the child’s removal from Mexico; and (3) a return would subject the child to grave risk due to the father’s violence toward the mother.
The trial court ruled that pursuant to Federal Rule of Civil Procedure 8(c)(1), the mother’s failure to assert her affirmative defenses prior to trial constituted a waiver, and this delay resulted in the father not having “pragmatically sufficient time” to respond. The court noted that
failure to timely plead an affirmative defense may result in waiver and the exclusion of the defense from the case. However, “a technical failure to comply with Rule 8(c) is not fatal.” A defendant does not waive a defense if it is raised with “pragmatically sufficient time” and does not prejudice the plaintiff in its ability to respond. A district court has discretion to determine whether the party against whom the defense was raised suffered prejudice or unfair surprise as a result of the delay in asserting the defense.
The court found that the mother failed to present any defenses to the prima facie case established by the father. Although this constituted a waiver, as a matter of caution, the district court allowed the mother to present evidence of her untimely affirmative defenses. After the evidence was heard, the court found that her defenses lacked merit and ordered the child returned.
. “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.”
. Leon v. Ruiz, No. MO:19-CV-00293-RCG, 2020 U.S. Dist. LEXIS 43758, at *17 (W.D. Tex. Mar. 13, 2020) (quoting Rogers v. McDorman, 521 F.3d 381, 386 (5th Cir. 2008).
. Id. (citations omitted).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Defenses | Settlement and Immigration Status | Grave Risk | Motions for New Trial
In this case, the First Circuit determined whether a district court committed clear error in denying a mother’s defenses of grave risk and settlement of the child, and whether the district court’s denial of her motion for a new trial was an abuse of discretion.
The First Circuit affirmed the district court order for the return of a child to Brazil, denying the defenses of grave risk and settlement of the child for lack of sufficient evidence, and denying the motion for a new trial based on the continuance of an immigration hearing for three years.
A couple, both Brazilian citizens, lived together from 2007 to 2016. In 2010, the mother gave birth to A.C.A., their child. She had another child, M.A., from a previous relationship. The couple separated in February 2016. That December, the mother removed both children to the United States without the father’s knowledge. When she and the children entered the United States, immigration authorities released them on their own recognizance and ordered an immigration hearing in Boston, Massachusetts.
In November 2018, the father filed a petition for the return of A.C.A. to Brazil. The mother’s response alleged the defenses of grave risk under Article 13(b) and settlement of the child under Article 12. At the trial in July 2019, the district court tentatively ruled that the father’s petition for return would be granted. A formal order was entered on October 29, 2019, ordering the child to be returned on January 2, 2020. Two days later, on October 30, 2019, the mother and her two children attended an immigration hearing. At that hearing, she formally filed an application for asylum for herself and the two children, alleging that if they all returned to Brazil, the father would kill her and sexually abuse her other child. Immigration proceedings were continued to February 16, 2023.
On November 6, 2019, the mother moved for a new trial in district court, alleging that the three years before her next immigration hearing would provide her and the children with interim legal immigration status, eliminate the risk of imminent deportation, and provide new evidence of her defense that A.C.A. was well settled. The district court denied her motion for new trial. The First Circuit issued a stay of the removal order and expedited the appeal.
The First Circuit found that the district court did not err in denying the mother’s defenses of grave risk or settlement of the child.
Grave Risk. The mother alleged that returning A.C.A. to Brazil would expose her to grave risk because the child witnessed conflict between her parents, and if returned, was at risk of physical abuse herself. The district court had found that although there was “some degree” of physical abuse by the father, the facts presented were insufficient to establish grave risk to the child. The First Circuit ruled that the abuse alleged was not as severe as that found in Walsh v. Walsh, noting that the incidents did not result in hospital visits, complaints to law enforcement, or arrest of the father. The court also observed that there was no evidence that the father ever sexually abused the child.
The mother also alleged that both her children were at risk of being sexually abused by the father, based on her first child revealing in therapy that she used to sit on the father’s lap and move her hips around to massage him. The therapist, however, would not testify that her suspicion of sexual abuse was made with a “reasonable degree of medical certainty.”
The First Circuit found that the district court did not abuse its discretion in finding that the mother did not establish a sufficient defense of grave risk of domestic violence or sexual abuse.
Settlement of the Child. Since the father’s petition was filed more than one year after the wrongful removal of the child, the mother attempted to prove that the child was settled within the meaning of Article 12. The district court had considered facts relevant to the child’s degree of settlement and found that A.C.A. had developed “meaningful relationships and lasting emotional bonds with a community in East Boston.” But the district court had also found that the child’s resilience and ability to form bonds would not “wrench her out of a well-settled position if returned.” As part of its analysis, the district court had considered the child’s unsettled immigration status. The First Circuit also noted that the evidence before the district court showed a pattern of absences from school and many tardies (40 days out of 167 in 2017–2018, and 41 during the first half of 2018–2019), facts against a finding of settlement.
Motion for New Trial. The mother asserted that the three-year delay of her immigration hearing stabilized the child’s immigration status by removing the possibility of immediate removal. The district court had disagreed, finding that the evidence of a continuation of the mother’s immigration hearing was cumulative in nature and not new evidence of settlement. The district court had also found that she could have filed an application for asylum before her first immigration hearing instead of waiting until after, but she did not. The First Circuit affirmed the denial of the mother’s motion for a new trial.
A motion for new trial on the basis of newly discovered evidence requires the movant to show that:
(1) The evidence has been discovered since the trial; (2) The evidence could not by due diligence have been discovered earlier by the movant; (3) The evidence is not merely cumulative or impeaching; and (4) The evidence is of such nature that it would probably change the result if a new trial is granted.
. Da Silva v. De Aredes, 953 F.3d 67, 72–73 (1st Cir. 2020) (citing Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020)).
. Id. at 73.
. 221 F.3d 204, 220 (1st Cir. 2000).
. Da Silva, 953 F.3d at 74–75.
. Id. at 74.
. Id. at 74–75.
. 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.. Da Silva, 953 F.3d at 75.
. Id. at 76 (citing Lozano v. Alvarez, 697 F.3d 41, 54 (2d Cir. 2012) (noting that courts generally should consider as a now-settled factor “whether the child attends school or day care consistently”)).
. Id. at 76 (quoting Duffy v. Clippinger, 857 F.2d 877, 879 (1st Cir. 1988)).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Factual Error | Burden of Proof
This case examined whether a court commits clear error when it relies on facts that were never presented and whether a parent petitioning for a child’s return has the burden of disproving the opposing parent’s factually unsupported defense.
The Eleventh Circuit ruled that the district court’s denial of a petition for return was based on factual and legal findings that relied on the father’s defense of consent. This case was reversed and remanded.
The mother in this case was a Chilean citizen, and the father was a citizen of the United States. They had a child, born to the mother in Chile in 2012. Their child, EICB, lived there with her mother her entire life. The father lived in the United States and made several annual visits to Chile to visit his daughter. The child first visited the United States in February 2018, for a two-month limited stay with her father before returning to Chile. The mother allowed the child to travel to the United States for a second limited stay beginning December 30, 2018. The father purchased a round-trip ticket for the child with a scheduled return to Chile on February 28, 2019, and the mother gave permission for the child to extend her trip until the end of March. In early February 2019, the father began to propose that EICB remain permanently with him in the United States. When he continued to pressure the mother to let the child remain with him, she “tentatively” agreed to allow the child to remain until July 2019, when he and the child would return to visit the mother. The plan he purported was for the child to live primarily with him, and the mother could visit the child once a year in Miami. However, the mother said that she had agreed to the father’s plan only because she wanted to make sure that her child would return to Chile in July 2019.
She soon began to express opposition to the father’s proposed custody arrangement and pressed him for clarification of the plan. When she showed hesitation, he threatened to withhold the child permanently and prevent the mother from ever seeing the child again. To execute his plan, he enlisted the help of his friend Doris Baquero who worked at the Florida Department of Juvenile Justice. Baquero prepared a consent agreement effectively giving the father custody of the child and allowing the mother visitation in Chile during the child’s summer break. The document required the mother’s notarized signature. On two occasions the mother made arrangements to meet with a notary at the U.S. embassy in Chile but then skipped those appointments. Instead, she signed the original document, took a photo of it, and texted the photo of the signed document to Baquero, but the mother retained the original document. She feared that if she did not provide the father with a signed consent agreement, he would not bring the child to Chile in July and would prevent the mother from seeing her child again, as he had threatened. Baquero notarized the photo of the signed consent agreement without the mother’s presence.
In March 2019, the mother wrote to Baquero, “Doris, good afternoon, I appreciate everything, but I changed my mind. I have everything ready for [EICB] to return. Her uniform and school supplies, she starts classes on March 4th at Primary school. It is very important that she starts when it’s appropriate so she won’t fall behind.”
The father retained the child in Miami after the travel authorization period and did not return the her to Chile. In June 2019, the mother filed a petition in the Southern District of Florida for the child’s return.
At trial, the father asserted a grave risk defense, arguing that the child’s mental and physical health would suffer if she were returned to Chile, and that she would enjoy a better quality of life in the United States. He failed to produce any evidence on the issue of consent. In a subsequent briefing, the father alleged that the mother’s own evidence established consent by virtue of the written agreement and that the mother’s message to Baquero was evidence that mother “changed” her mind.
The mother argued that her signature on the consent document was not proof of her subjective intent; instead, she was stalling for time in an effort to ensure the child’s return. The district court found that the father’s conduct did not amount to duress, that the mother consented to him having primary custody, and that she could not withdraw this consent. The district court denied mother’s petition for return.
Both parties agreed that the mother presented a prima facie case for return and that the only issue was the mother’s alleged consent. Quoting the Third Circuit in Baxter v. Baxter, the Eleventh Circuit observed,
The petitioning parent’s consent needn’t be formal, but “it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” The focus of the court’s inquiry should be on the petitioning parent’s “subjective intent,” and should take into account “[t]he nature and scope of the petitioner’s consent, and any conditions or limitations” on that consent.
The district court had concluded that the issue of consent was “dispositive” of the case and had focused almost exclusively on the consent letter that the mother signed. It had accepted the father’s denial that he threatened to retain the child. Reviewing the record, however, the Eleventh Circuit concluded that this latter finding was in error. In fact, the record established that while the father denied making threats in his pleadings, he did not deny the threats during his court testimony. The question of whether he made threats was material; the district court had acknowledged that if the mother’s allegations that she was threatened were true, this “would amount to duress.” The Eleventh Circuit held that the district court expressly imposed the burden of proof on the mother, requiring her to disprove the father’s claim of consent, and this amounted to clear error.
The Eleventh Circuit reversed the return order and remanded the case back to the district court for further proceedings consistent with its opinion.
This case addressed what standard should be used to determine the habitual residence of an infant who has lived in only one location prior to the its wrongful removal. Father petitioned for return of his six-week-old child to Italy, where child was born and had lived exclusively before mother wrongfully removed the child to the United States.
Update: Supreme Court Grants Certiorari
On June 10, 2019, the Supreme Court granted certiorari in this Sixth Circuit en banc decision. On November 4, 2019, the Supreme Court granted the motion of the solicitor general to participate in oral argument as amicus curiae.
Brief Case History
The father, an Italian citizen, and the mother, a U.S. citizen, met at the University of Illinois and married in 2011. The couple moved to Italy in 2013 to continue with their careers. In 2015, the couple’s daughter was born in Italy. As a result of the father’s persistent physical abuse, including allegations of rape, the mother left Italy with the two-month-old child and returned to the United States. An Italian court granted the father’s ex parte petition to terminate mother’s parental rights. His subsequent petition for return of the child was granted by the district court in Ohio. The Sixth Circuit affirmed the district court’s order. The district court’s order was subsequently heard and affirmed by the Sixth Circuit en banc.
The courts’ analyses rested on Ahmed v. Ahmed, finding that because infants are not able to be sufficiently acclimatized to acquire a habitual residence, courts must look to the “shared parental intent of the parties” to identify the infant’s residence. Citing the Hague Convention, the court explained that the question of habitual residence is one of “pure fact.” Hague cases often present “unfortunate” fact patterns, but the Sixth Circuit found that the district court made no clear errors of fact.
The mother’s petition to the Supreme Court for a writ of certiorari was granted June 10, 2019. The Supreme Court decided the case on February 25, 2020, in Monasky v. Taglieri.
Grave Risk | Court’s Discretion to Return | Undertakings | Habitual Residence
In this case, a child was ordered returned to its habitual residence in Italy, but the undertakings that conditioned the return were unenforceable. The Second Circuit remanded the case to the district court to consider conditions of return that would protect the child.
The Second Circuit affirmed the lower court’s finding on habitual residence but remanded the case for further consideration of undertakings, given the likelihood that the proffered undertakings could not be enforced.
The father, an Italian citizen, and the mother, a U.S. citizen, married in Milan, Italy, in 2014. They had a child together in 2015. Soon after their marriage, the father began abusing the mother physically, verbally, and emotionally. This abuse continued throughout the marriage. On one occasion, the father threatened to kill the mother. This behavior often took place in the presence of the child.
The child lived in Italy for his first two years. In July 2018, the mother traveled with the child to the United States to attend her brother’s wedding. She did not return to Italy with the child and moved into a domestic violence shelter in New York.
After a nine-day trial, the district court found that Italy was the child’s habitual residence, and ordered the child be returned to Italy subject to certain undertakings. The court found that returning the child to Italy would expose him to a grave risk of harm, and specifically concluded that a return could result in significant adverse effects upon his psychological health and development. The court further found that the father was unlikely to change his behavior, and “could not control his anger or take responsibility for his behavior.” Therefore, as a condition of the child’s return, the district court adopted undertakings intended to “sufficiently ameliorate the grave risk of harm.” Those undertakings included (1) payment for housing, support, and legal fees in the sum of $30,000; (2) an order that the father stay away from the mother; and (3) the requirement that the mother must first consent for the father to be able to visit the child.
Habitual Residence. The Second Circuit reiterated its previous test for determining habitual residence: look to the last shared intent to fix the child’s residence. The court noted that it reviews a district court’s factual findings for clear error and reviews those facts de novo. Based on the evidence cited by the district court, the Second Circuit affirmed the lower court’s finding that Italy was the child’s habitual residence.
Grave Risk | Undertakings. District courts have considerable discretion to order the return of a child even when the abducting parent has established a defense against return. The Second Circuit followed its precedent in Blondin Ithat district courts should “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” When undertakings are unenforceable, the return of a child in the face of a proven defense is generally disfavored. This is especially so in cases like this one. The court concluded that
in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other “sufficient guarantees of performance.”
Finding that the undertakings given by the father in this case were unsupported by guarantees of his performance, the Second Circuit vacated the district court’s order of return and remanded the case for consideration of remedies that would allow for the return of the child and protection from harm. The Second Circuit urged the district court to consider whether the Italian courts would enforce the restraining order. Addressing whether an order of return conditioned on a foreign court’s enforcement of such an order is appropriate, the Second Circuit reasoned,
[W]e do not think that international comity precludes district courts from ordering, where practicable, that one or both of the parties apply to courts in the country of habitual residence for any available relief that might ameliorate the grave risk of harm to the child. So long as the purpose of such an order is to ascertain the types of protections actually available, and the district court does not condition a child’s return on any particular action by the foreign court, there is little risk that this “practice would smack of coercion of the foreign court.
. Saada v. Golan, 930 F.3d 533, 539 (2nd Cir. 2019) (citing Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005)).
. Id. at 538 n. 13 (citing Guzzo v. Cristofano, 719 F.3d 100, 109 (2d Cir. 2013)). The court also noted that on June 10, 2019, the Supreme Court granted certiorari to review the question as to the appropriate standard of review for habitual residence determinations. See Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018) (en banc), cert. granted, 140 S. Ct. 719 (2020).
. Id. at 539 (citing Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).
. Blondin v. Dubois (Blondin I), 189 F.3d 240 (2d Cir. 1999).
. Id. at 248.
. Saada, 930 F.3d at 540 (citing Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007)).
. Id. (citations omitted).
. Id. at 541–542.
In this case, a Japanese couple entered into a divorce agreement that granted the mother parental authority over their children. Japanese law defined the terms of that agreement as giving the mother the right to determine children’s residence.
The Tenth Circuit affirmed the district court’s decision that the parties’ divorce agreement made under Japanese law failed to confer rights of custody to the father that would entitle him to file a petition for return of the children to Japan.
A South Korean mother and a Japanese father were married in Japan in 2003. In 2006, their twin girls were born there, and the family lived together until the parents’ divorce in 2013. Japanese law gives married couples the option to implement their own divorce by entering into a binding agreement made between the parties without any involvement from the Japanese judiciary. In this case, the parents opted to enter into such an agreement, which contained arrangements for the custody and support of the children. The agreement provided the following:
- the mother obtained “parental authority over” the children
- the father was to “give due consideration to the welfare of [the twins] when exercising custody”
- the father was to “hand over [the twins] to [the mother] on the last day of March 2017,” but the father continued “to maintain the right of custody of [the twins]” after that date
- the father was to begin paying child support in April 2017, and was to continue until the twins reached twenty years of age
- either party could “visit [the twins] once a year”
Pursuant to the divorce agreement, the children began living with their father in Japan in 2013. At the end of March 2017, the father failed to hand over the daily physical control of the children to their mother and failed to provide child support payments. In October 2017, the children traveled to South Korea to celebrate a traditional festival with their maternal grandparents. After they arrived, the mother took the children to the United States without the father’s permission. The father filed a petition for return of the children in April 2018. The district court denied the father’s petition, finding that he failed to prove that the mother had breached his custody rights. The district court found that the mother had full parental authority and decision-making power under the parties’ divorce agreement and that the father had the right to exercise some physical custody at undetermined future dates. The court also found that both twelve-year-old girls objected to being returned to Japan.
Legal Effect of the Parties’ Divorce Agreement. The children had established habitual residence in Japan at the time of their removal to the United States. Both the mother and father agreed that their divorce agreement governed their custody arrangement and that the father’s custody rights were subject to Japanese law. Japanese law provides that “parental authority” includes various rights, including the right to determine a child’s residence. Since the mother was the only parent granted “parental authority” over the children, she alone had the right to select the place where the children would live. The father argued that the divorce agreement provided that he would continue to have a “right of custody” of the children even after they were transferred to the mother in March 2017. His argument was based on language from the Supreme Court’s Abbott v. Abbott decision, in which that father had custody rights despite the other parent’s right to sole custody. The Tenth Circuit distinguished this case from Abbott, finding that the father’s visitation rights in Abbott were accompanied by a ne exeat clause prohibiting the removal of the children without that father’s consent. Here, however, the father had no such right to object to the removal of the children from Japan.
Under Japanese law, the mother’s “parental authority” also included other rights, such as the right to determine the children’s care, education, and discipline, and to manage their financial affairs and take legal actions on their behalf. The father did not provide any evidence that Japanese law defined his residual custody rights as including any of the parental rights the mother had. Although the father had some residual custody rights, the Tenth Circuit found that those rights were not the parental rights required to support a petition for return under the Hague Convention.
Determination by the Japanese Central Authority. The father also argued that the act of the Japanese Central Authority, which forwarded his request for assistance to the U.S. Central Authority, implied that he possessed enforceable custody rights under Japanese law. He argued that Japanese law requires its Central Authority to dismiss applications made under the Hague Convention if the applicant does not have rights of custody. The failure to do so was therefore tantamount to a determination under Japanese law that he possessed enforceable rights of custody. But the Tenth Circuit found that Japanese law only required the Japanese Central Authority to dismiss an application for assistance if “[i]t is obvious that the applicant does not have the rights of custody.” The court dismissed the father’s argument, finding that even the preliminary opinion of an administrative body did not amount to a finding, under Japanese law, that he possessed rights of custody.
. The 1980 Hague Convention provides that custody rights may be established by “an agreement having legal effect” under the law of the child’s habitual residence. Hague Convention on the Civil Aspects of International Child Abduction art. 3, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
. See Takeshi Ogawa v. Kyong Kang, No. 2:18CV335DAK, 2018 WL 2376338, at *1 (D. Utah May 24, 2018).
. Because the Tenth Circuit affirmed the district court’s determination that the father did not have enforceable custody rights under the 1980 Hague Convention, it did not address the issue of the children’s objections to being returned to Japan. Takeshi Ogawa v. Kyong Kang, 946 F.3d 1176, 1177 n. 1 (10th Cir. 2020).
. 560 U.S. 1, 9 (2010).
. Takeshi Ogawa, 946 F.3d at 1181 (quoting Abbott, 560 U.S. at 11).
. Id. at 1183.
Habitual Residence | Parental Intent | Acclimatization | Time-Limited Relocations
In this case, three children were temporarily removed to Australia for the purpose of providing medical care to one of the children. The father argued that this triggered a change in their habitual residence.
The Tenth Circuit affirmed the district court’s ruling on habitual residence, finding that the contemplated length of a temporary relocation is just one of several factors to consider when determining whether the children have acquired a new habitual residence, and the length of time a child remains in a new location is one of many factors to consider when determining whether a child has become acclimatized.
The mother and father were the married parents of three children. They established their home in North Carolina in 2006 and lived there until 2016. In 2016, the parents learned that their middle child needed specialized medical treatments. The father and children were dual citizens of Australia, and both the mother and father agreed to move to Australia to take advantage of Australia’s universal health care system. The parents contemplated that they would live in Australia until the completion of their son’s medical treatment—a period of two to two-and-a-half years. In preparation for the move, the family rented out their home in North Carolina and moved into the mother’s parents’ home in Utah. While in Utah, the family visited various places in the western United States, potential future homes after their time in Australia.
In September 2016, the family moved to Australia. They shipped much of their personal property to Australia but maintained ownership of their home in North Carolina. Other personal items were left in Utah, including sentimental items. The father maintained his company in the United States; most of its operations were in North America. The mother applied for and was granted a twelve-month visa to remain in Australia. The children were enrolled in Australian schools, and the family purchased a new home there. The father continued to travel overseas for work. The mother later applied for a permanent visa.
The marriage began to deteriorate, but despite these difficulties, the mother convened a “family meeting” and everyone agreed that the parents should remain together so that their son could continue to receive the needed medical care. But the parents’ relationship ended when the father withdrew funds from the parties’ joint bank accounts and deauthorized the mother from using their credit cards. When the mother rejected his attempt to reconcile, he withdrew his sponsorship of her application for a permanent visa. Three days later, the mother took the children and flew to Utah. At the time of the children’s removal to the United States, the family had lived in Australia for just over eleven months.
The father filed a petition for the return of the children to Australia, but the district court found that the children’s habitual residence was in the United States, and it denied his petition.
To determine the question of habitual residence, the district court had considered both shared parental intent and the degree of acclimatization by the children.
Parental Intent. The district court had found that the parents never shared an intent to settle in Australia; they moved there solely for their child’s expensive orthodontic treatments. The family maintained ownership of their North Carolina residence, kept their U.S. bank accounts intact, and left their sentimental items in Utah. The father continued to operate his business primarily in North America. The family relocated to Australia for a very specific purpose and for a limited time.
The Tenth Circuit found that the evidence supported the district court’s findings that the family had not become settled in Australia and that their intent to remain in Australia for an indeterminate stay did not amount to establishing a new habitual residence. The Tenth Circuit also refused the father’s invitation to adopt the Third Circuit’s holding in Whiting v. Krassner that the duration of an intended stay in a second country may itself determine the question of habitual residence. Instead, the Tenth Circuit noted that the contemplated length of the stay is just one factor to consider when determining whether a new habitual residence has been established.
Acclimatization. In this case, the children were seven, ten, and twelve years old at the time they returned to the United States. The district court found that the children had not acclimatized to Australia to a degree that would trigger a change in their habitual residence. The children also knew that they were living in Australia temporarily and “never considered Australia home.” Contrary to the father’s assertion that a stay of nearly one year in Australia was sufficient to allow for acclimatization, the Tenth Circuit found that the period of time spent in a new country does not control the acclimatization determination, but is just one of many factors to be considered.
. Watts v. Watts, 935 F.3d 1138, 1145–47 (10th Cir. 2019) (relying in part on a 10th Circuit unpublished case, Kanth v. Kanth, 232 F.3d 901 (10th Cir. 2000)).
. 391 F.3d 540, 548–50 (3d Cir. 2004) (habitual residence established despite plan to relocate for only a two-year period).
. Watts v. Watts, 935 F.3d 1138, 1143 (10th Cir. 2019).
This case explored the question of whether a parental agreement reached while the children were in utero could establish habitual residence in a place where the children had never been.
The district court held that the last shared parental intent for habitual residence, which was reached while the children were in utero, is insufficient to establish habitual residence after their birth.
An American father and mother lived in Brazil when the mother became pregnant with twins. When the mother was nineteen to twenty weeks into her pregnancy, she left Brazil, ended her relationship with the father (to whom she was married), and relocated to Oklahoma, where she then gave birth to the children. At no time were the children ever physically present in Brazil. The mother had no intention of returning to Brazil.
After the birth of the children, the father filed a petition in the U.S. District Court for the Western District of Oklahoma for an order compelling the children to be “returned” to Brazil, arguing that they were wrongfully retained in the United States. The father based his petition on the argument that Brazil was the children’s habitual residence because the last shared intent of both parents (while the children were in utero) was that they would live and raise their children in Brazil.
The mother asserted that the children could not be habitual residents of a place in which they had never been physically present, and that even if an agreement regarding residency in Brazil was reached while the children were in utero, such an agreement could not establish the habitual residence of the subsequently born children.
The district court denied the father’s request that the children be “returned” to Brazil.
The father argued that an infant must have a habitual residence from the moment of birth, and physical presence is not required. He requested an evidentiary hearing to establish the existence of the parties’ alleged agreement that the children would reside in Brazil after their birth.
The district court acknowledged that some courts have held that a habitual residence can be established even though a child has never been physically present in that location. Nevertheless, the court noted the absence of any authority to support the contention that shared parental intent was sufficient to establish a habitual residence for a child not yet born at the time of the agreement.
[T]he problem with attempting to apply the ‘shared parental intent’ construct to the facts of this case is that here—even granting [the father’s] factual allegations every benefit of the doubt—there was never shared parental intent with respect to the children because the children did not yet exist at the time of the alleged agreement; they were 19 to 20 weeks in utero. . . . Thus, even taking [the father’s] claim of an in utero agreement at face value, such an agreement differs from the agreement relied on in the cases he cites. Those cases involved agreements with regard to actual, existing children, not agreements regarding children that may or may not be born in the future.
The father also argued that the last shared intent was irrevocable unless it was later modified by a subsequent agreement between the parties, and that the mother could not unilaterally withdraw from the original agreement. The court rejected the father’s position, noting,
Taken to its logical end, this position would mean, for example, that an American man and a woman living in France could date and agree that they would raise their future children in France. That man and woman could break up and go their separate ways, with the woman returning to the United States. But if at any time in the future—even a decade later—that man visits the United States and rekindles the romance and that woman becomes pregnant by him, she would be bound to her long-ago agreement to raise any children in France. That can’t be right.
. E.g., Delvoye v. Lee, 224 F. Supp. 2d 843, 851 (D.N.J. 2002), aff’d, 329 F.3d 330 (3d Cir. 2003) (“[I]f a couple lives in the United States and gives birth to a child during a summer visit to a vacation home in the Swiss Alps, the habitual residence of the child is not Switzerland,” but seeDelvoye, 329 F.3d at 333 (conflicts in parental intent at the time of the child’s birth may result in the child having no habitual residence)); E.R.S.C. v. Carlwig (In re A.L.C.), 607 F. App’x 658, 662 (9th Cir. 2015) (“‘if an attachment to a State does not exist, it should hardly be invented’” (quoting Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 89, 112 (1999)).
. Pope v. Lunday, No. CIV-19-01122-PRW, 2019 WL 711615, at *5 (W.D. Okla. Dec. 23, 2019).
Grave Risk | Quality of Medical Care in Habitual Residence | Interruption of the Course of Counseling | Credibility
In this case, the Second Circuit rejected a parent’s claim that the lower standard of medical treatment available in the children’s habitual residence and the complications that would arise from interrupting the children’s psychological therapy supported a grave risk defense.
By summary order, the Second Circuit affirmed the district court’s order to return the children to their habitual residence and its finding that the mother failed to establish a grave risk defense.
A mother and father in Norway shared custody of their two children after their legal separation. Three years later, the parties agreed that the mother would take their two children, eight and six years old, from their home in Norway to the United States for one year. They agreed that the mother would return to Norway from New York City with the children on August 8, 2017, but the mother and children failed to return on the appointed date. The mother then cut off all communication with the children’s father. The father filed a petition for return of the children eleven months later.
The older child had previously undergone surgery in Norway to correct a bowel disorder. The younger child struggled academically from early on. Both children required psychological counseling. The mother sought to establish that the medical care available in Norway was inadequate for the needs of the older child. She also asserted that if the children were required to return to Norway, their treatment regimen in New York would be disrupted, potentially causing relapse and regression and making their psychological treatment more difficult.
Quality of Medical Care in Habitual Residence. The mother only appealed the district court’s denial of her grave risk defense. The district court had found that her argument that the medical care available for the eldest child in Norway was less than optimal did not satisfy the criteria necessary to establish grave risk. Relying on the standard set forth in Blondin II, the court noted that a grave risk defense does not apply to “those situations where repatriation might [merely] cause inconvenience or hardship.”
Interruption of the Course of Counseling. The Second Circuit also affirmed the district court’s rejection of the mother’s argument that interrupting the children’s course of psychological counseling would be detrimental to their needs. The Second Circuit agreed with the district court’s observation that the return of the children to Norway would be less traumatic than the children’s initial removal to the United States.
Credibility. In a footnote, the Second Circuit also commented on the district court’s rejection of parts of the mother’s testimony, based on her own admission that she had committed perjury by providing false testimony.
“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”
. Eidem v. Eidem, 382 F. Supp. 3d 285, 294 (S.D.N.Y. 2019).
. Eidem v. Eidem, No. 19-1417, 2019 U.S. App. LEXIS 36488, at *6 (2d Cir. Dec. 10, 2019) (quoting Blondin v. Dubois (Blondin II), 238 F.3d 153, 162 (2d Cir. 2001)).
. Eidem v. Eidem, No. 19-1417, 2019 U.S. App. LEXIS 36488, at *4 n.1 (2d Cir. Dec. 10, 2019) (quoting Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)).