MK Family Law

On March 15, 2021, in the case of de Jesus Joya Rubio v. Alvarez , the U.S. District Court for the SD of Florida denied a father's petition to have his 12-year-old son returned to Mexico.  The father proved his prima facie case, so the court shifted its review to the 3 exceptions the respondent mother argued.  As part of the mother's arguments, she retained the services of a psychologist to evaluate the minor child.  Ultimately the mother demonstrated that the minor child was mature, objected to returning to Mexico, and was not unduly influenced, and that the father filed his return petition more than one year past the wrongful retention and the child was now settled.   Mature Child's Objection The psychologist's evaluation of the child was key, and he focused on several very prominent issues when opining that the child had mature objections and was not unduly influenced.  Most specifically, the child was diagnosed with ADHD in Florida, and his mother had ...

In Summer 2020, in Bejarno v. Jimenez , the U.S. District Court for the District of NJ denied a Father's request to have his son returned to Honduras on the basis that the Father had filed his Hague abduction return petition in the courts more than one year after the wrongful removal, and the child was now settled.  The trial judge analyzed ten factors, and concluded that the totality of the circumstances led the court to believe the child was now settled.   Only two of the ten factors weighed against finding the child was settled, and it is on one of those two factors that Mr. Bejarno appeals. On appeal to the Third Circuit , Mr. Bejarno argued that the trial judge erred in declining to hear additional testimony concerning the child and his mother's immigration status, and that the trial judge should have treated that one of the ten factors as dispositive, thereby concluding that the child was not settled because the child was not in status in the U.S.  The District...

On November 19, 2020, the US District Court for the M.D. of Georgia issued its opinion, denying Mr. Romero's request to return his two children to Chile .  In December 2017, Mr. Romero brought the parties' 2 children to Florida to see his mother, with the intention of remaining until March 2018.  Ms. Bahamonde alleged, however, that in January 2018, Mr. Romero advised her that he and the children would not be returning.  In February 2018, she moved to Florida, first living with Mr. Romero's mother, and then moving out on her own.  Eventually, both children began residing with Ms. Bahamonde.  The parties had an acrimonious relationship both in Chile and in Florida.  Ms. Bahamonde had filed several requests for protective orders, and a hearing was scheduled for September 20, 2018, then re-scheduled to December 13, 2018.  She ultimately dismissed the case, however, learning that Mr. Romero had returned, with both children's passports, to Chile on Septembe...

On January 8, 2021, the U.S. District Court for the Western District of Virginia denied a return petition brought under the Hague Abduction Convention in the case of Alfonso VH v. Christina AZ  on the basis that the minor child is now settled in the United States. The court found that the Petitioner Father established a prima facie case of wrongful retention after the child's Respondent Mother refused to return their child to Honduras as scheduled on April 23, 2019 (at the end of a planned 2-week trip).  The Respondent argued three exceptions to the child's return: (1) the child was now "well" settled, (2) the child's "wishes," and (3) a grave risk.  The minor child was appointed a Guardian Ad Litem , who filed a report with the court, which included statements made by the child, and which both parents agreed the court could accept in lieu of the child's testimony.  The Petitioner did not file his return petition with the court in Virginia until app...

The recent 1980 Hague Abduction case of De Carvalho v. Carvalho Pereira focused on two key issues: the children's habitual residence and whether the children were now settled in the United States.  The District Court of Appeal of Florida affirmed the trial court's order to return both children to Brazil.   The family, in this case, moved to Florida in January 2016 for the Father's short-term medical fellowship in a U.S. hospital, and for the Mother to give birth to the parties' second child on U.S. soil.  A few months later, and after the 2nd child's birth, the Father's fellowship fell through, so he returned to Brazil to prepare the family home for everyone's return.  He sent return plane tickets to his family, but the Mother decided (on or about April 5, 2016) she was remaining in the United States, with the children, and wished to divorce.   The trial court concluded that neither parent intended to permanently relocate the family to the United Stat...

The case of Biagioli Da Silva et. al. v. Vieira is, in most respects, a run-of-the-mill Hague Abduction return proceeding.  The parents and children were all Brazilian nationals.  The parents separated, divorced, and shared custody in Brazil.  The Father, Biagioli Da Silva, ran into some difficulties with the law and was incarcerated.  His mother (the paternal grandmother) nonetheless still saw the children and participated in their lives on his behalf, by written agreement, incorporated into a court order in Brazil.  In early 2019, the children's Mother, Vieira, asked the Father for permission to visit family in Orlando, Florida.  He vehemently refused, fearing she would not return.  She, however, convinced the Brazilian court that it was a temporary visit, verified by return plane tickets, and entry to the U.S. on a tourist visa, so the court granted her request over the Father's objection.  The Mother traveled to Florida, but retained the chil...

Just before I started this blog, the U.S. Court of Appeals for the First Circuit issued an opinion in the case of Da Silva v. De Aredes (953 F.3d 67 (March 13, 2020) ).   There were a few issues that the Respondent Mother (de Aredes) argued on appeal, but ultimately the court affirmed the U.S. District Court's order to return the minor child, ACA, to Brazil.  It agreed that any potential abuse alleged by de Aredes did not rise to the level of being a grave risk, and despite the Petitioner Father (da Silva)'s court filing beyond one year after the wrongful removal, the child was not settled in East Boston.   Perhaps the most interesting part of the First Circuit's opinion, however, was that it remanded the case (despite affirming) for the U.S. District Court to re-word its return order.  This is particularly interesting given my last blog post where a U.S. District Court in Arizona crafted a Hague Abduction return order that placed the child in the temporary...

On August 26, 2020, in the case of Zaoral v. Meza , the U.S. District Court for the Southern District of Texas ordered the return of a 15-year-old child to Venezuela. The parties' youngest child, age 15 at the time of the trial, was the subject of a Venezuelan custody order that gave both parents joint parental responsibility, and ordered that the Mother, who was the primary residential custodian, could not change the child's residence without notifying the Father so he could exercise his rights and duties.   The Mother sought court permission to take the daughter on a several-week trip to visit family in Houston from July 6, 2018 through August 14, 2018.  The court permitted the trip and required the Mother to appear in court the week after her scheduled return.  The travel authorization from the court also included specific language that informed the Mother that her failure to return the child would be a criminal offense.  Nonetheless, the Mother failed to ret...

On August 19, 2020, the Ninth Circuit Court of Appeals affirmed the trial court's refusal to return a minor child to Mexico in the case of Castro v. Hernandez Renteria on the basis that the underlying petition for return was filed more than one year after the child's wrongful removal/retention, and the child is now settled.  This case shows some creative arguing by both sides.  The key issue was the date on which Bertha, the minor child's maternal grandmother, removed or retained the child outside of its habitual residence of Mexico.  There are a few potential dates, and each level of the court chose a different one.   At the time of the child's departure from Mexico with Bertha, the child was in its father's primary custody, but since the child' father was incarcerated, the child's paternal half-sister had de facto custody.  The child's mother was missing.  On August 25, 2017, the minor child boarded a flight from Mexico and arrived in Las Vegas, NV ...

The case of Bejarno v. Jimenez denied the Petitioner Father’s request to return his child to Honduras using the Hague Abduction Convention.   The court’s analysis hinged on the "now settled" exception.  The court concluded that the Respondent Mother removed the parties’ child to the United States on April 24, 2018.  The Father submitted an application with the Honduran Central Authority on June 29, 2018, requesting the child’s return.  He then secured pro bono legal counsel, and filed his return petition in the appropriate federal court in NJ on August 30, 2019, sixteen months after the child was wrongfully removed.   The court looked to the factors highlighted in Monzon v. De La Roca to determine if the child is now settled since the Father commenced the proceedings more than one year after the removal.  These factors include:  the age of the child the stability of the child’s new residence whether the child attends school or daycare consistently wh...

On April 23, 2020, the U.S. District Court for the Western District of Michigan (Southern Division) issued an opinion on remand from the 6th Circuit in the case of Moreno v. Zank (No. 1:17-cv-732) to pinpoint the moment in time when the minor child was wrongfully retained by her father in Michigan.  While the family has an acrimonious history, the court chose to focus on several dates within the month of August 2016 to try to pinpoint the date on which the minor child, BLZ, was retained in Michigan at the end of a summer vacation to see her father.  The father was slated to put BLZ on a plane to Florida on August 9, 2016 at which time her maternal grandfather would take over custody (and presumably, after a trip to Walt Disney World, take her back to Ecuador).  Due to a Delta Airlines nationwide outage, that flight did not happen, and shortly thereafter, BLZ told her father that she objected to returning to Ecuador.  The minor child’s travel authorization perm...