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International Law & Litigation
Monzon v. De La Roca, 2018 U.S. App. LEXIS 34763 (3d Cir. Dec. 7, 2018)
Commencement of Proceedings Defined | Article 12 Defense | Settlement
In this case, father petitioned for return of his child to Guatemala sixteen months afterthe child’s removal by mother. In father’s procedural objections he sought to establish that the availability of an Article 12 delay defense is triggered by the later of either (1) the filing a civil petition in the court having jurisdiction, or (2) the filing of an administrative petition. Father also sought to establish that under ICARA, a delay defense fails unless an Article 13b or Article 20 defense is also proven, and he argued that the evidence of the child’s settlement was insufficient.
Parents, citizens of Guatemala, separated shortly after the birth of their only child in 2010. They divorced in 2014. Mother began a relationship with Deleon, a man who lived in New Jersey. In 2014, mother married Deleon and, without father’s consent, brought their child to the United States to live. Mother disclosed to father that she was in New Jersey with the child, but she did not disclose their address. Father commenced an administrative application for the child’s return to Guatemala in August of 2014. When he discovered that an actual petition to a court in the United States was necessary, he filed his petition for return in the District Court of New Jersey in January of 2016—sixteen months after the child’s departure from Guatemala. The district court denied father’s petition for return, finding that the child was settled in New Jersey. Neither mother, her new husband, nor the child had legal immigration status in the United States, but mother and her new husband both had pending petitions for asylum.
The Third Circuit affirmed.
Commencement of Proceedings. The Third Circuit found that father had been diligent in attempting to secure the return of his child and acknowledged that the father did not speak English, could not afford counsel, and did not know the child’s address. However, the court declined to find that these factors equitably served to extend the requirement that an actual petition be filed in court to commence return proceedings. The plain language of 22 U.S.C. § 9003(f)(3) (ICARA) requires the actual commencement of a civil proceeding for the one-year delay defense to apply under Article 12. The court noted that it does nevertheless have authority to order a child’s return even in the face of a successful delay defense.
Delay Defense Does Not Require Proof of Additional Defenses. Father argued that the language of ICARA required an Article 12 defense to be accompanied by proof of an Article 13b or Article 20 defense. This argument was based on the language in ICARA stating that the person opposing return had the burden of proving
(A) by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies; and
(B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.”
Father argued that Congress intended to require proof of the existence of multiple defenses by the placement of the word “and” instead of “or” between paragraphs (A) and (B). The court disagreed, pointing to the text of the 1980 Hague Convention, its underlying principles, and precedent. Additionally, the court noted that the defenses under the 1980 Convention were meant to apply individually and that it would strain reason to require that a party raising one defense must also establish an independent and potentially unrelated defense.
Settlement of the Child. Father challenged the district court’s finding that the child was settled in his new environment, but the Third Circuit reviewed the district court’s thorough analysis and summarily disposed of father’s argument.
[T]he District Court undertook an exceedingly thorough, careful, and thoughtful analysis of the evidence and the various factors that pertain to how well a child is settled in a community and home. We are satisfied that this record supports the District Court’s finding that H.C. is well settled in his new environment.
The district court had acknowledged that neither mother, the child, nor mother’s husband were legal residents in the United States and that all had applied for asylum. But the district court had ruled that immigration status was not dispositive of the settlement issue and found that the child in this case was settled, which the Third Circuit affirmed.
. 22 U.S.C. § 9003(e)(2) (emphasis added).
. Monzon v. De La Roca, 2018 U.S. App. LEXIS 34763, at *18–23 (3d Cir. Dec. 7, 2018) (citing Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014)).
. Castellanos Monzón v. De La Roca, Civil Action No. 16-0058 (FLW)(LHG), 2016 U.S. Dist. LEXIS 45825, at *38–40 (D.N.J. Apr. 5, 2016) (“[T]he factors . . . include: (1) the age of the child; (2) the stability of the child’s new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) the stability of the parent’s employment or other means of support; (6) whether the child has friends and relatives in the area; (7) to what extent the child has maintained ties to the country of habitual residence; (8) the level of parental involvement in the child’s life; (9) active measures to conceal the child’s whereabouts (and the possibility of criminal prosecution related thereto); and, (10) the immigration status of the child and parent.”).
. Monzon, 2018 U.S. App. LEXIS 34763, at *23 (citations omitted).
. Monzón, Civil Action No. 16-0058 (FLW)(LHG), 2016 U.S. Dist. LEXIS 45825, at *46–48.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Fernandez v. Bailey, 909 F.3d 353 (11th Cir. 2018)
Article 18 Discretion to Return Child | Settlement | Repeated Abductions
Article 18 of the1980 Hague Convention provides that “[t]he 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.” This case examines the parameters of the court’s discretion to order a child returned to his or her habitual residence despite an abducting parent’s successful establishment of an Article 12 defense.
In 2009, mother abducted her twin sons from Panama to Missouri. Granting father’s petition for return, the District Court for the Eastern District of Missouri ordered the children’s return to Panama. In response to that order, mother returned to Panama with the children. Thereafter father visited the children regularly on weekends. In 2013, he retained the children for two months in violation of the parties’ custody agreement. Upon mother’s application, a Panamanian judge ordered the children returned to their mother. Father did not see or speak with the children for the next eleven months—each parent blaming the other for the hiatus in father’s visits.
The parents continued to litigate custody issues in the Panamanian court. The court issued an order restraining mother from removing the children from Panama. Despite that order, in February 2014, mother took the children to Florida without notifying father. Father made efforts to locate the children but was unsuccessful until January 2015 when he learned that the children were in the United States.
In April 2016, Father petitioned for return of the children in the District Court for the Middle District of Florida—two-and-a-half years after their abduction. Mother raised three defenses: (1) grave risk of harm; (2) objections of the children; and (3) that the children were settled in their new environment.
The Florida district court denied father’s petition for return, finding that the children were settled in their new environment within the meaning of Article 12. Although the district court recognized that it retained discretion to return the children despite the fact that they were settled, it declined to do so on the basis that the children’s interests in being settled outweighed the benefits of returning them to Panama.
The Eleventh Circuit reversed.
Settlement of the Child. The Eleventh Circuit first discussed the concept of a child’s settlement in his or her new environment, noting that the concept of settlement must consider not only the child’s situation in the new place, but the child’s attachments to the habitual residence. The court found that a child is settled when the evidence has shown that “the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment.” The court went on to clarify that “[a]lthough all returns will necessarily involve some level of disruption to the child or children involved, we caution that disruption should not be considered per sedetrimental. Rather, the “settled” inquiry requires courts to carefully consider the totality of the circumstances.”
Discretion to Return the Child. The Eleventh Circuit cited authority from cases in the First, Second, and Fourth Circuits that give courts the discretion to order a “settled” child returned. The court cautioned against the exercise of broad discretion to return a settled child where such an exercise would render Article 12’s defense a “dead letter” or plunge the court into issues related to determining custody. Nevertheless, the circuit court found that Article 18 of the 1980 Convention grants courts the discretion to order a child returned despite the fact that an Article 12 defense to return has been established.
Repeated Abductions and Factors Weighing in Favor of Exercise of Article 18 Discretion. The court found the instant case unique because this was the second time within five years that the mother had abducted the children from Panama to the United States. The Eleventh Circuit found that the district court had given insufficient weight to “the audacity . . . of a second removal.” Also, since the Panamanian court was still presiding over the child custody case, this case raised the question of comity between nations and judicial authorities. Lastly, holding child custody proceedings in Florida would disadvantage father because he would be unable to attend those proceedings—a forum-shopping victory for mother that would be contrary to the underlying principles of the 1980 Convention.
. Fernandez v. Bailey, No. 1:10CV00084 SNLJ, 2010 U.S. Dist. LEXIS 90368 (E.D. Mo. Sep. 1, 2010).
. “Furthermore, the Court believes that the children’s interest in settlement in this case outweighs the other interests that would be served by returning the children to Panama. The Court is deeply disturbed by Respondent’s actions. This is the second time Respondent has removed the children from Panama without Petitioner’s consent. Because Petitioner had been unable to secure a visa to attend the 2010 Hague Convention hearing because of his prior conviction, Respondent likely knew that Petitioner could not travel to the United States to search for the children or participate in person if future custody proceedings were initiated here. As Petitioner correctly pointed out, preventing this type of forum-shopping by parents was a major motivation for the enactment of the Hague Convention.” Fernandez ex rel. C.R.F.B. v. Bailey, No. 8:16-cv-2444-T-33TGW, 2016 U.S. Dist. LEXIS 128732 (M.D. Fla. Sep. 21, 2016).
. Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018).
. Yaman v. Yaman, 730 F.3d 1, 18 (1st Cir. 2013); Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001); Alcala v. Hernandez, 826 F.3d 161, 175 (4th Cir. 2016).
. Fernandez, 909 F.3d at 361 (quoting Gomez v. Fuenmayor, 812 F.3d 1005, 1011 (11th Cir. 2016)).
. Id. at 364.
. Father is not permitted to enter the United States due to a prior juvenile conviction for felony burglary.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
This guide provides an overview of the Foreign Sovereign Immunities Act of 1976. It is intended as a practical introduction for those who have little knowledge of or experience with the statute. The guide focuses on the basic legal issues U.S. courts face when handling cases that arise under the statute.
Taglieri v. Monasky, No. 16-4128, 2018 U.S. App. LEXIS 29178 (6th Cir. Oct. 17, 2018)
Habitual Residence | Infants
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.
In 2011, father, an Italian citizen studying at the University of Illinois, met and married mother, also a student at that university. In 2013, the couple decided to move to Italy for their careers. Father was licensed to practice medicine in Italy, and mother received two fellowships for further study in Italy. Father moved to Italy first, in February 2013; mother later followed. Before her move, mother sent an email to father indicating that she did not believe “[the fact that we are moving to Milan or Rome] means we are done with the US [for good].”
Mother became pregnant in May 2014. Father became sexually and physically abusive. The parties’ relationship deteriorated, and they discussed divorce. Mother applied for U.S. jobs but also made plans to have the child in Italy. After one of mother’s pregnancy check-ups in mid-February, she began having contractions. Father remained at the parties’ apartment while she took a taxi to the hospital. Their versions of why father did not immediately join mother conflicted. Father arrived at the hospital later for the birth. The child was delivered by emergency caesarean section. After the birth, father returned to the parties’ apartment, and mother went to a residence in Basiglio, a suburb of Milan. The parties briefly reconciled but separated shortly thereafter due to arguments and father’s alleged threats of physical harm to mother.
On April 15, 2015, mother left for the United States with the parties’ six-week-old child. Various factors influenced mother’s eventual move back to the United States—her inability to obtain recognition of her academic credentials Italy, her lack of Italian language skills, and her complicated pregnancy. Less than a month later, father commenced an action under the Hague Convention for the return of the child. In March 2016, the district court held a four-day trial. In October 2016, the district court found that Italy was the child’s habitual residence and granted father’s application for the child’s return. Stays requested by mother were denied, and the child was returned to Italy. Mother appealed, but the judgment was affirmed by a divided panel in Taglieri v. Monaski. A petition for an en banc hearing was granted, resulting in the opinion discussed in this commentary.
Habitual Residence. The Sixth Circuit reiterated its holding in Ahmed v. Ahmed that the circuit considers two factors when determining habitual residence: (1) whether the child has become acclimatized, and (2) whether a shared parental intent existed. The second factor is considered a backup test when the child in question is too young or disabled to become acclimatized. The court noted that every circuit to consider the issue of habitual residence looks to both standards. Acclimatization typically involves factors such as academic activities, social connections, sports activities, excursions, and the formation of meaningful connections with people and places. Here, the court noted that the age of the child foreclosed consideration of acclimatization as a method to determine habitual residence. Thus, the district court had properly looked to shared parental intent as the appropriate test in this case.
The district court had resolved the issue of habitual residence in the face of the conflicting evidence and arguments of the parties. In affirming the district court’s finding that Italy was the child’s habitual residence, the Sixth Circuit panel gave great weight to the factual determinations the district court made after the four-day trial. The panel applied a “clear error” standard of review: “[W]e leave this work to the district court unless the fact findings ‘strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.’” Recognizing that there was evidence in the record that could have supported the conclusion that the child’s habitual residence was in the United States instead of Italy, the Sixth Circuit deferred to the district judge and concluded that he
had the authority to rule in either direction. He could have found that Italy was A.M.T.’s habitual residence or he could have found that the United States was her habitual residence. After fairly considering all of the evidence, he found that Italy was A.M.T.’s habitual residence. . . . Call our standard of review what you will—clear-error review, abuse-of-discretion review, five-week-old-fish review—we have no warrant to second-guess Judge Oliver’s well-considered finding.
The district court had found that the parties shared intent was to raise the child in Italy, and the Sixth Circuit found that the district court had used the proper test for determining habitual residence. In the absence of clear error, the district court’s decision should be affirmed.
The en banc court also rejected mother’s argument that the district court had erred because there was never a showing that there was a “meeting of the minds” between father and mother regarding the child’s habitual residence. The circuit court noted that such an agreement is not required for a finding that the parties had a shared intent.
An absence of a subjective agreement between the parents does not by itself end the inquiry. Otherwise, it would place undue weight on one side of the scale. Ask the products of any broken marriage, and they are apt to tell you that their parents did not see eye to eye on much of anything by the end. If adopted, [mother’s] approach would create a presumption of no habitual residence for infants, leaving the population most vulnerable to abduction the least protected.
Concurring Opinion of Judge Boggs. Judge Boggs agreed with the result in the majority opinion, but he pointed out that strict adherence to Ahmed’s binary choice between the acclimatization test or the shared parental intent test opens up the possibility that the child might be found to have no habitual residence. Judge Boggs suggested that absent unusual circumstances, if a child has lived exclusively in one country, that country should be the child’s habitual residence. The failure to recognize such a rule could result in a court making a finding that neither acclimatization nor shared intent exists. This conclusion would produce a determination that an infant has no habitual residence—relegating parents to self-help as a remedy for abductions. This result, Judge Boggs concluded, ignores the purposes of the 1980 Hague Convention.
Three Separate Dissenting Opinions: Judge Moore, Judge Gibbons, and Judge Stranch. The dissenting opinions all noted that the district court’s decision was rendered before the Sixth Circuit’s opinion in Ahmed. As a result, that court had not analyzed the case within the parameters later set forth in Ahmed. The dissenters also found that the district court determined shared parental intent on the basis of where the parents had actually established a residence, rather than where they intended to live. Judge Moore wrote that courts must look to the external indicia of the parties’ shared intent. Judge Moore also pointed out that although a habitual residence determination is essentially a question of fact, whether the district court used the proper standard for determining habitual residence is a matter to be reviewed de novo by an appellate court. Judges Gibbons and Stranch observed that Ahmed defined the shared intent test to reflect the parents’ intention for the child’s residence. However, the district court focused on the parents’ established marital residence in Italy and mother’s failure to leave that residence after the birth of the child. The dissenters agreed that the case should be remanded for the district court to reanalyze the case in light of Ahmed.
. 876 F.3d 868 (6th Cir. 2017).
. 867 F.3d 682 (6th Cir. 2017).
. Taglieri v. Monasky, No. 16-4128, 2018 U.S. App. LEXIS 29178, at *5 (6th Cir. Oct. 17, 2018) (“Every circuit to consider the question looks to both standards. Ahmed,867 F.3d at 689; see Mauvais v. Herisse, 772 F.3d 6, 11 (1st Cir. 2014); Guzzo v. Cristofano, 719 F.3d 100, 110 (2d Cir. 2013); Karkkainen v. Kovalchuk, 445 F.3d 280, 296 (3d Cir. 2006); Maxwell v. Maxwell, 588 F.3d 245, 253 (4th Cir. 2009); Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir. 2012); Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013); Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir. 2010); Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004); Kanth v. Kanth, No. 99-4246, 2000 WL 1644099, at *1–2 (10th Cir. Nov. 2, 2000); Chafin v. Chafin, 742 F.3d 934, 938–39 (11th Cir. 2013).”).
. Id.at *8.
. Id.at *9.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Moreno v. Zank, 895 F.3d 917 (6th Cir. 2018)
This case addressed whether abduction acts as a bar to the establishment of a child’s habitual residence in the country to which the child was taken. The Sixth Circuit found that resort to self-help and failure to pursue an action for return of a child under the Hague Convention may result in a change in the child’s habitual residence.
A child was abducted by her mother from the U.S. to Ecuador in 2009. The child remained in Ecuador for seven years and formed attachments indicating that she had become acclimatized to Ecuador as her habitual residence. In 2016, father refused to return the child to Ecuador after summer visitation. Mother petitioned for the return of the child to Ecuador.
In violation of a Michigan custody order, mother initially abducted the parties’ daughter to Ecuador in 2009. Although father commenced the administrative process for return of the child, he failed to follow through with filing a case in Ecuador for the child’s return under the 1980 Convention. In 2016, mother permitted the child to travel to the United States to visit her father for the summer. Father failed to return the child as previously agreed by the parties. In 2017, mother petitioned for the return of the child to Ecuador. The district court acknowledged that the child lived in Ecuador from age three to ten and that she “had been acclimatized to Ecuador and was settled there.” Nevertheless, the district court denied mother’s petition for return based on the illegality of abducting the child to Ecuador in 2009. The court concluded that the child’s habitual residence was in the United States.
Abduction does not act as a bar to the establishment of a child’s habitual residence. The Sixth Circuit reversed the district court’s decision and remanded the case for additional proceedings. The Sixth Circuit adhered to its former precedents defining habitual residence for children above the “age of cognizance” as “the nation where, at the time of [her] removal, the child has been present long enough to allow ‘acclimatization,’ and where this presence has a ‘degree of settled purpose from the child’s perspective.’”Here, all the facts pointed toward the conclusion that over the course of seven years, the child had acclimatized to Ecuador as her habitual residence. The court reasoned that reabduction involves the same threats to a child’s wellbeing because it interferes with the child’s “accustomed residence.” The court found that living in Ecuador for seven years, along with social, family, and school attachments established that the child lived in that nation with a “settled purpose.”
Self-help and the failure to pursue return of the child under the 1980 Convention. The Sixth Circuit reasoned that failure to initiate or follow through with the established procedures under the 1980 Convention for seeking the return of an abducted child may result in adverse consequences to the case of the parent left behind. First, a parent that resorts to self-help reabduction forecloses consideration and adherence to the safeguards that exist under the Hague Convention relating to the child’s welfare, the possible objections of a mature child, and the time limits that are built into the application process. Secondly, reabduction poses the same threats to the child’s wellbeing as an initial abduction, when the child has become acclimatized to the country to which they were originally abducted.
The court found support in Ovalle v. Perezfor reaching the conclusion that reabduction was not a favored form of relief where a party failed to take advantage of the 1980 Convention to resolve issues surrounding the determination of a child’s habitual residence. In Ovalle, father took the parties’ child from Guatemala to the United States by subterfuge. The court found that the parents had never formed a settled intent as to where the infant would be raised. The Ovallecourt took account of the factors indicating the child’s settled status in Guatemala: the child lived with mother and family; the child had regular visits to a pediatrician; there were plans for baptism and church attendance; and father was permitted to be with the child in Guatemala. The court found that father’s resort to self-help was a factor that weighed against a finding that the child’s habitual residence was in the United States.
Both Morenoand the Ovallecase relied on the reasoning of the Seventh Circuit in Kijowska v. Haineson the potential impact of self-help reabductions. In Kijowaska,a two-month-old child was taken by her mother to Poland, mother’s country of residence. Four months later, mother and child returned to the United States in an apparent attempt to reconcile with the child’s father. Meanwhile, father had obtained a custody decree from an Illinois court, and when mother and the child arrived, father convinced U.S. immigration authorities that mother was planning to overstay her visa. The immigration authorities took the child from mother and gave the child to father pursuant to the Illinois order. Mother was refused entrance into the United States, compelling her to return to Poland without the child. Granting mother’s application for return of the child under the Hague Convention, the Kijowskacourt found that the child’s habitual residence was Poland. The court reasoned that even if mother’s removal of the child to Poland was wrongful, father’s self-help conduct bypassed the provisions of the Hague Convention and contributed to the child’s establishment of a habitual residence in Poland.
[Father]’s remedy would have been to file a petition under the Hague Convention and its implementing federal statute. He did not do that. He merely sought a custody order from an Illinois state court and then used that order to help obtain the self-help remedy of taking the child from the airport. To give a legal advantage to an abductor who has a perfectly good legal remedy in lieu of abduction yet failed to pursue it would be contrary to the Hague Convention’s goal of discouraging abductions by denying to the abductor any legal advantage from the abduction. By failing to pursue his legal remedy, [father] enabled [the child] to obtain a habitual residence in the country to which her mother took her, even if the initial taking was wrongful.
. Moreno v. Zank, 895 F.3d 917, 923 (6th Cir. 2018) (citing Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007) (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995))).
. Ovalle v. Perez, 681 Fed. App’x 777 (11th Cir. 2017).
. 463 F.3d 583 (7th Cir. 2006).
. Kijowska v. Haines, 463 F.3d 583, 588–589 (7th Cir. 2006)(citations omitted).
Soto v. Contreras, 880 F.3d 706 (5th Cir. 2018)
Domestic Violence | Grave Risk
In this case, the Fifth Circuit evaluated whether the district court’s finding that there was a lack of “objective evidence” to support abuse allegations impermissibly increased mother’s burden to prove a grave risk, and whether the existence of spousal abuse requires a finding of grave risk to a child.
In September of 2014, after a nine-year marriage, mother and father, who were both Mexican citizens residing in Mexico, mutually decided to divorce. In the spring of 2015, mother told father she was taking two of her three children to a party in another town three hours away; instead she took them to the United States, seeking political asylum. Father filed a petition in district court for return of the children under the Hague Convention. Mother’s defense argued that there was a grave risk to the children because of domestic violence. In the district court, both mother and father accused each other of domestic violence, adultery, and financial irresponsibility. The district court found that
[Mother]’s allegations of abuse—that [Father] physically and psychologically abused her, sometimes in front of their children, and that [Father] allegedly physically assaulted their daughter on one occasion—are in conflict with [Father’s] testimony. [Father] testified that he could recall one instance in which he and [Mother] engaged in a physical fight, but [Father] denied any other instances of abuse. Because neither side is able to provide objective evidence, [Mother’s] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm.
The district court granted the petition for return. Denying a subsequent motion for stay requested by mother, the district court noted that despite mother’s challenge to its “objective evidence” finding, the district court “did not disregard the testimony of the two children . . . rather, . . . [it] noted that there was no evidence of physical abuse of the Child, which is the more pertinent issue for likelihood of grave risk of harm to the child.”
The Fifth Circuit declined to consider the district court’s stay ruling. The stay ruling did not amend the district court’s trial findings and as such was not part of that court’s findings of fact and conclusions of law.
The Fifth Circuit affirmed the district court’s decision granting father’s petition for return.
The court began its analysis by restating the fundamental principles underlying an Article 13(b) defense: defenses under the Hague Convention are narrow, findings of grave risk are rare, and the party raising the defense must show that return of the child would expose the child to a grave risk of harm, not merely a serious risk. Grave risk is one of two defenses that must be proved by “clear and convincing evidence.” In this case, the Fifth Circuit noted that the district court’s reference to “objective evidence” did not demonstrate that the court’s ruling was “based on a misconception of the underlying legal standard.”
Mother’s first contention was based on the district court’s comments on the lack of “objective evidence” to sustain mother’s abuse allegations. Mother argued that this characterization of the evidence impermissibly heightened the existing legal standard of clear and convincing evidence. While the circuit court agreed that a person asserting an Article 13(b) defense is not required to provide objective evidence in order to prove the defense, the court also found that the district court did not actually require “objective evidence” of abuse. The use of the phrase by the district court was simply part of its factual finding that the evidence mother provided was insufficient to meet her burden to show a grave risk to the child by clear and convincing evidence.
Mother raised an additional ground for appeal: the district court noted in its decision that mother did not provide any evidence that father abused the child in question. Mother argued that case law supported a finding of grave risk to the child in the case of spousal abuse, even without proof of violence directed toward the child itself. The Fifth Circult acknowledged the existence of case law supporting this position, but the court held that there is no bright-line rule that requires a court to find a grave risk whenever it finds evidence of spousal abuse. When considering the case law examples mother provided, the court reasoned that those cases
stand only for the proposition that sustained spousal abuse can, in some instances, create such a risk. Indeed, a bright-line rule that allegations of spousal abuse create grave risk to a child would circumvent the Hague Convention’s principle that “the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.”
. This case ultimately applied only to one of the two children because the other child “aged out” (that is, the child turned sixteen during the pendency of the Hague Convention proceedings). The asylum petition was pending at the time of the decision in this case.
. Soto v. Contreras, 880 F.3d 706, 709 (5th Cir. 2018) (quoting Soto v. Contreras, 2016 U.S. Dist. LEXIS 192540, at *4–5 (N.D. Tex. Oct. 18, 2016) (emphasis added)).
. Soto v. Contreras, 2016 U.S. Dist. LEXIS 192541, at *3 (N.D. Tex. Oct. 25, 2016).
. Soto, 880 F.3d at 709–10 (citing Tavarez v. Jarrett, 252 F. Supp. 3d 629, 640 (S.D. Tex. 2017) (citing England v. England, 234 F.3d 268, 271 (5th Cir. 2000))).
. Id. at 710 (citing Delgado v. Osuna, 2015 WL 5095231, at *13 (E.D. Tex. 28 Aug. 2015), aff’d, 837 F.3d 571 (5th Cir. 2016)).
. Id. (citing Hague International Child Abduction Convention; Text and Legal Analysis, 51 FR 10494–01 (Mar. 1986)).
. 22 U.S.C.S. § 9003(e)(2)(A).
. Soto v. Contreras, 880 F.3d 706, 711 (5th Cir. 2018) (citing Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 339 n.16 (5th Cir. 1984)).
. Id. at 713 (citations omitted).
Taglieri v. Monasky, 876 F.3d 868 (6th Cir. 2017)
Habitual Residence | Infants | Custody Rights | Grave Risk and Domestic Violence
This case dealt with the question of what standard to apply when determining the habitual residence of an infant who has lived in only one location prior to wrongful removal.
Editor’s Note: Judge Boggs authored the majority opinion in this case. Judge Boggs also authored Friedrich v. Friedrich (Friedrich I) in 1993, the first federal appellate case involving the 1980 Hague Convention, and he authored the subsequent iteration of that case, Friedrich II, in 1996. Friedrich II is the most-cited case involving the 1980 Hague Convention.
In 2011, father, an Italian citizen studying at the University of Illinois, met and married mother, also a student at the university. In 2013, the couple decided to move to Italy for their careers. Father was licensed to practice medicine in Italy, and mother received two fellowships for further study in Italy. Father moved first in February 2013, and mother followed. Before her move, mother sent an email to father indicating, “[I]don’t think that [the fact that we are moving to Milan or Rome] means we are done with the U.S. [for good].”
Mother became pregnant in May 2014. Father became sexually and physically abusive. The parties’ relationship deteriorated—they discussed divorce, and mother applied for U.S. jobs but also made plans to have the child in Italy. After one of mother’s pregnancy check-ups in mid-February, she started having contractions. She took a taxi to the hospital while father remained at the apartment. Their versions of why father did not immediately join mother conflicted. Father later came to the hospital for the birth. The child was delivered by emergency caesarean section. After the birth, father returned to the apartment, and mother went to a residence in Basiglio, a suburb of Milan. The parties briefly reconciled but separated shortly thereafter due to arguments and alleged threats of physical harm by father.
On April 15, 2015, mother left with her six-week-old child for the United States. Various factors influenced mother’s move back to the United States: her inability to obtain recognition of her academic credentials in Italy, her lack of Italian language skills, and her complicated pregnancy. Father commenced an action under the Hague Convention for the return of the child on May 14, 2015. In March 2016, the district court held a four-day trial. The district court granted father’s application for return in October 2016. Stays requested by mother were denied, and the child was returned to Italy.
Habitual Residence. The Sixth Circuit began with a summary of its previous holdings in Friedrich I, Simcox v. Simcox, Robert v. Tesson, and Ahmed v. Ahmed as they related to the question of determining habitual residence:
This brief survey reveals that we use three distinct standards to determine a child’s habitual residence under the Convention. In cases where the child has resided exclusively in a single country, that country is the child’s habitual residence. But when the child has alternated residences between two or more nations, our analysis is more complicated. In such cases, we begin by applying the acclimatization standard. See [Ahmed v. Ahmed, 867 F.3d 682] 690. If that test supports the conclusion that a particular country is the child’s habitual residence, then that is the end of the analysis. But if the case cannot be resolved through application of the acclimatization standard, such as those cases that involve “especially young children who lack the cognizance to acclimate to any residence,” we then consider the shared parental intent of the child’s parents. Ibid. (“The conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent.”)
In this case, the child lived in only one place—Italy—before she was removed by mother to the United States. There was no shuttling back and forth between countries, and there was no opportunity for the child to become acclimatized, as might be the case with an older child. If a child has lived in only one place, then that place “may be considered its residence.”
Continuing the argument set forth by the dissent, the court found that “Ahmed did not modify or displace the alternative standard and guidance that Friedrich I and Simcox provided for children with exclusively one country of residence. Robert and Ahmed dealt with one situation, while Friedrich I and (in part) Simcox dealt with another.” The decision in Robert regarding acclimatization applied only when a child has alternated between residences in two or more nations. The decision in Ahmed adopting a standard of shared parental intent makes that intent relevant only when the acclimatization standard is applied, but it fails to provide guidance to the court, especially in cases involving small children. The court concluded that
[w]here a child has remained in one place for its entire life, that place is the expected location where it may be found and may be considered its residence. Thus, A.M.T.’s habitual residence was the country from which she was taken, Italy.
The court recognized that difficulties could arise with individual cases, citing Delvoye v. Lee, where the mother was convinced to remain in the father’s country for financial reasons. Such cases are rare and reflect the “flexible and fact-intensive nature” of the question of habitual residence.
Exercise of Custody Rights. The court concluded that father exercised his custody rights under Italian law, both by statute and an order from an Italian juvenile court. Father proved that he had such rights and was exercising them at the time of the child’s removal. The court pointed to its oft-cited statement in Friedrich II that “if a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.” There were no such facts in this case. Father established his rights of custody.
Grave Risk of Harm. The court referred to its analysis in Simcox that discussed the spectrum of conduct that falls under the definition of domestic violence, reiterating that the definition of grave risk as a result of domestic violence is to be interpreted narrowly, “lest it swallow the rule.” The court in that case cautioned, however, that “there is a danger of making the threshold so insurmountable that district courts will be unable to exercise any discretion in all but the most egregious cases of abuse.” In this case, the Sixth Circuit found the mother’s accounts of abuse to be credible, but noted that the district court found that evidence lacking clarity on the frequency and severity of the violence. There was also no evidence indicating that the violence had been directed toward the child. The court acknowledged that a child could be in grave risk of psychological harm or placed in an intolerable situation due to the abuse of the parent alone, but in this case the evidence failed to amount to a grave risk of harm or show that the child was in an intolerable situation.
Dissent. The dissent analyzed the progression of the Sixth Circuit’s holdings on habitual residence from Friedrich I (facts not presumptions, focus on child’s past experiences not parent’s, one habitual residence, look to geography and time), Robert, and Simcox, (acclimatization and degree of settled purpose). In Simcox, the court acknowledged that “the acclimatization standard may not be appropriate in cases involving infants or other very young children.” In Ahmed, the court addressed the issue of habitual residence for infants and children not old enough to develop a “sense of settled purpose.” The Ahmed court focused on the presence or absence of the parents’ shared intent in a situation where the children were too young to have acquired a “degree of settled purpose.” In such cases, courts must shift focus to the issue of shared parental intent. In Ahmed, the court found that father had not proved that there was a shared intent for the children to remain in England when mother removed them to the United States. The dissent reasoned that Ahmed’s facts and analysis mirrored the Taglieri case.
Because the child in this case was similarly unable to acquire a degree of settled purpose or become acclimatized, the court should look to the issue of parental intent. If there is no shared parental intent, the dissent concluded that no habitual residence is acquired, citing Delvoye v. Lee. The dissent proposed that the rules regarding infants should follow existing precedent.
Our acclimatization standard is sufficient to determine the habitual residence of most children, and when it is not, we must then use the settled-parental-intent standard. Where the child is too young to have acclimatized to her community and surroundings, and where the parents do not have a settled mutual intent, I would conclude that the child cannot have a habitual residence.
Since the Ahmed case had not been decided when the district court decided this case, the dissent recommended a remand to the district court to consider the issue of parental intent within the context of Ahmed.
. 983 F.2d 1396 (6th Cir. 1993).
. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1063 (6th Cir. 1996).
. 983 F.2d at 1396.
. 511 F.3d 594 (6th Cir. 2007).
. 507 F.3d 981 (6th Cir. 2007).
. 867 F.3d 682 (6th Cir. 2017).
. Taglieri v. Monasky, 876 F.3d 868, 876 (6th Cir. 2017).
. Id. at 877.
. Id. at 876.
. Id. at 877 (footnote omitted).
. 329 F.3d 330 (3rd Cir. 2003).
. Taglieri, 876 F.3d at 877 (citing Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007). At note 2 of the Taglieri opinion, the court left the door open to future interpretations: “Other cases with potential problems might include unexpected births in a foreign country, children born to itinerant parents, or physical coercion. We express no opinion on what the appropriate standard should be for such cases.”
. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1063 (6th Cir. 1996).
. Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007).
. Id. at 608.
. Id. at 602, n.2.
. Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017).
. 329 F.3d 330 (3rd Cir. 2003).
. Taglieri v. Monasky, 876 F.3d 868, 884 (6th Cir. 2017).
Superseded by Taglieri v. Monasky (6th Cir. Oct. 17, 2018) (Case Analysis).
Marks v. Hochhauser, 876 F.3d 416 (2d Cir. 2017)
Wrongful Retention | Single or Continuing Act | Date of Entry into Force
The Second Circuit explored whether the 1980 Hague Convention came into force between the United States and Thailand before the mother in this case wrongfully retained her children. It also dealt with whether wrongful retention is a single act or a continuing one.
Mother and father were U.S. citizens with three sons—a fifteen-year-old and twelve-year-old twins—and the family had lived in Bangkok, Thailand, since 2005. The parties divorced in 2015, and mother gained sole custody of the children. In September 2015, mother traveled to New York for three weeks, with plans to return to Thailand on October 10, 2015. Three days before her scheduled return, mother sent father an email informing him that she had decided to remain in the United States permanently.
The district court held that the retention of the children was a single act, rather than a continuing act, and that the wrongful retention occurred before the Convention had entered into force between the United States and Thailand. The Second Circuit affirmed.
Entry into Force. Because Thailand was not a member state at the time of the adoption of the 1980 Convention, it could only be bound by the Convention once it had gone through the process of accession. Thailand acceded to the Convention in 2002, but the United States did not formally accept that accession until 2016. Under the terms of Article 38, only after the existing member state has declared its acceptance of the acceding state will the Convention enter into force between those two states, on the “first day of the third calendar month after the deposit of the declaration of acceptance.” The United States accepted Thailand’s accession on January 26, 2016, meaning the Convention went into force between the two countries on April 1, 2016.
The Second Circuit declined to adopt the reasoning of Viteri v. Pflucker holding that the Convention applies if it is in force in each country—that is, if both countries involved have either ratified or acceded to the Convention on the date of the wrongful removal or retention.
Wrongful Retention. The circuit court further held that wrongful retention is a single, not continuing, act. This interpretation is reinforced by the provisions of Article 35 of the Convention, which states that the Convention “shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Similarly, Article 12, the one-year provision, states that proceedings must be brought within one year “from the date of the wrongful removal or retention.” If retention were deemed to be a continuing act, then the provisions of Article 12 would have no effect, and a case would be actionable so long as the retention continued and until the Convention entered into force between the two countries involved.
Additionally, the Pérez-Vera report states that
[t]he fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child’s stay in a place other than that of its habitual residence.
Father filed his petition for the return of the children on September 9, 2016. The wrongful retention of the children commenced on the date that mother unequivocally informed father that she was not returning with the children: October 7, 2015. At the time of mother’s notification, the Convention had not yet entered into force between Thailand and the United States.
. Months after mother’s departure from Thailand, the Thai court of appeals vacated the judgment that awarded mother sole custody and instead awarded joint custody of the children to both mother and father.
. Hague Convention on the Civil Aspects of International Child Abduction art. 38, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
. 550 F. Supp. 2d 829 (N.D. Ill. 2008).
. Hague Convention on the Civil Aspects of International Child Abduction art. 35, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
. 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.
. Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 458 ¶ 108 (1982).
Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017)
Return Orders | Enforcement | Place of Return
This case involves consideration of motions filed by both parents to modify and vacate the order of return. At the time of the hearing on the motions, the children had been returned to their habitual residence, Mexico.
Both mother and father were Mexican citizens residing in Mexico City with their two daughters, ages three and five. In 2015, mother took the children to the United States for a vacation, but ultimately decided to remain in El Paso, Texas. Father petitioned for the return of the children to Mexico, and the district court granted his petition. After the issuance of the return order, mother filed a notice of compliance with the court order, indicating that the children had been returned to Mexico and were residing in Ciudad Juárez. Father sought posttrial enforcement of the return order, claiming that mother had placed the children with their maternal grandparents in Ciudad Juárez for some weeknights, but that the children spent weekdays and weekends in El Paso, Texas. Father requested orders to deliver the children to him in Mexico City and to prohibit the children’s travel outside of Mexico. Mother also filed a posttrial request to vacate the return order based upon newly discovered evidence. The Fifth Circuit affirmed the district court’s denial of both parents’ posttrial motions.
It is significant that the parents’ posttrial motions were made after the children had already been returned to Mexico. Mexican courts acquired jurisdiction over all custody issues. The Fifth Circuit declined to adopt a rule that requires orders of return to correspond with the status quo that existed before removal. The court noted, “The return remedy, in particular, was designed principally to address situations that cannot be resolved unilaterally by the state of habitual residence.” To the extent that the court seeks to determine the location of the child’s habitual residence within the state, or to order the child to attend certain schools or to be subject to visitation orders, the court takes on issues that begin to resemble those in child custody cases. Citing to its previous holding in Hernandez v. Garcia Pena, the court reiterated that the remedy of return “only determines where any custody decision should be made.”
As the court observed, mother and father both agreed that because the children had been returned to Mexico, the Mexican courts had jurisdiction to decide all custody matters. The court further held that “the Convention and its return remedy do not control or regulate children whose custody matters are within the exclusive jurisdiction and control of the state of habitual residence.” Therefore, the courts of Mexico are the proper venue for deciding issues relating to the residence or placement of the children.
Mother’s posttrial motions to vacate were based on her claims that events occurring after the trial supported a defense of grave risk. Her first claim was that her husband had convinced a Mexican court to issue a warrant for her arrest for “fraudulent administration,” a crime that carried no bail. Mother argued that if she were arrested on the warrant, she would be separated from the children for an indefinite period of time, causing grave risk to the children. The circuit court denied the motion on the grounds that the separation of a child from a parent is insufficient to trigger the grave risk exception and that principles of comity foreclose the court from second-guessing the decisions of Mexican courts in their own cases. Mother’s second claim of grave risk was based on a death threat against her that her attorneys received. The threat was contained in the subject line of an email that had no body text; it was vague and was sent by an unknown source.
The court acknowledged that while threats against a parent could create a grave risk to a child, the vague and uncertain facts of this case did not, and the Fifth Circuit affirmed the district court’s decision not to vacate the return order based upon this posttrial evidence.
. Madrigal v. Tellez, 848 F.3d 669, 674 (5th Cir. 2017) (citing Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 430 (1982)).
. 820 F.3d 782, 786 (5th Cir. 2016).
. Madrigal, 848 F.3d at 674.
. Madrigal, 848 F.3d at 677 (citing Gomez v. Fuenmayor, 812 F.3d 1005, 1007–10 (11th Cir. 2016); Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014); Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005); Walsh v. Walsh, 221 F.3d 204, 219–20 (1st Cir. 2000); and Sabogal v. Velarde, 106 F. Supp. 3d 689, 705–06 (D. Md. 2015)).
Padilla v. Troxell, 850 F.3d 168 (4th Cir. 2017)
Defenses | Consent – Facts Supporting Consent
This case involves whether mother consented to the removal of the child from Mexico to the United States. The opinion focuses upon the sufficiency of the facts supporting the defense of consent and the district court’s credibility findings.
The child in question was born in Oaxaca, Mexico, in 2011. He was primarily raised by his maternal grandmother. Although father provided financial support for the child, he had little to no physical contact with the child until age two. In December 2014, mother and father went to the passport office in Oaxaca, where the parents signed for the child’s passport, and mother indicated that she agreed to sign over custody of the child to father because she believed that father would be able to get the child “on the right track.” After that, the child went to live with father at his home in Acapulco. In February 2015, the child was detained by Border Patrol agents after having entered the United States illegally with other undocumented individuals. Father admitted that he had paid to have the child smuggled into the United States. The child was ultimately released to father.
After this, mother and father corresponded by text messages. Mother initially indicated that the child was better off with father in the United States and agreed to the child’s presence there, if she was permitted to see the child. The child’s maternal grandmother, however, was attempting to arrange the child’s return to Mexico. As late as a year after the child entered the United States, mother conceded to father that the best place for the child was the United States and that she was opposed to the maternal grandmother’s efforts to have the child returned to Mexico. At one point, mother indicated that she would support father’s continued custody of the child in the United States as long as father continued to provide mother with money. One message read “you forward 3,000 please and I will give the guardian and custody, . . . I will do everything for [Child] to be with you but I really need the money.” Mother changed her position in February 2016 and requested the return of the child. Mother filed her petition for return in May 2016.
The district court denied mother’s petition for return, finding that the child had been wrongfully removed by father but sustaining father’s Article 13 defense of consent to removal. The Fifth Circuit affirmed.
The court distinguished between the defenses of consent (permission given before the child is removed) and acquiescence (more formalized conduct occurring after the removal). Finding that father’s defense was properly characterized as consent, the court focused upon the subjective intent of the party allegedly giving consent, in this case, the mother. The Fourth Circuit upheld the district court’s finding of consent based upon the district court’s factual determinations, including mother’s lack of credibility. The facts supporting father’s defense were as follows:
- Mother willingly accompanying father to obtain the child’s passport
- Mother agreeing to assign custody of the child over to father
- Mother agreeing to grant custody of the child to father to enable child to have a better life
- Text messages from mother supporting father’s continued custody of the child in Virginia
- Mother’s repeated statements that the child was better off with father
- Lack of mother’s objection to the child remaining in the United States for over six months after his removal from Mexico
- Corroborating testimony of father’s fiancée and mother’s half-sister
. Respondent was designated as the child’s legal father by stipulation, although respondent was not the child’s biological father.
. Hague Convention on the Civil Aspects of International Child Abduction art. 13, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 (“[T]he judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. . . .”).