MK Family Law

The U.S. District Court for the District of New Jersey, in Stone v. Stone , (2020 WL 491194) reaffirmed that a prevailing respondent in a Hague Abduction return proceeding is not entitled to an award of fees.  Specifically, ICARA section 9001, et. seq ., requires the respondent to pay necessary expenses if the petitioner prevails.  There is no provision under which a respondent may recover fees and costs from a petitioner.  This is bolstered by caselaw in other circuits.  Furthermore, the American Rule typically requires each party to bear the burden of his or her own legal expenses. 

On June 29, 2020, the U.S. District Court for the Southern District of New York issued an order for Ms. Orna Kirsh to pay fees and costs to Mr. Dror Nissim after Mr. Nissim prevailed in a Hague Abduction Convention return proceeding .  The US implementing legislation for the Hague Abduction Convention (ICARA) includes a fee-shifting provision that orders the respondent (Kirsh) to pay necessary expenses incurred on behalf of the petitioner (Nissim) during the course of the Hague Abduction Convention proceedings unless it would be clearly inappropriate.   The court reviewed 6 factors in determining whether a fee award would be “clearly inappropriate," and concluded it would not be. The court considered the following factors: whether there was a reasonable basis for removing the children to the USA whether either party engaged in forum shopping the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs the respondent’s inabili...

Over the past few months, there have been several cases that have addressed the issue of legal fees and costs to be paid by a Taking Parent as part of a successful return order under the Hague Abduction Convention.   The International Child Abduction Remedies Act  includes a fee-shifting provision that provides that the court ordering the return of a child shall order the Respondent to pay necessary expenses incurred on behalf of the Petitioner unless the Respondent establishes that such an order would be clearly inappropriate. The U.S. District Court for the Eastern District of Louisiana, in Joya v. Gonzalez , used the “lodestar” calculation as its starting point to award fees to a Left Behind Parent, by determining the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate in the local market.   The court, in this case, focused very heavily on the Petitioner Parent's documentation when it granted Mr. Joya the fees and costs he reque...

The U.S. District Court for the Eastern District of Louisiana issued an order on April 17, 2020 ( Civil Action No. 20-236 Section M (5) ) in the case of Joya v. Gonzalez fixing the fees due to Mr. Orellana Joya, the petitioner father who secured a return order of his child to Honduras.   In the return order, the court awarded Mr. Joya fees, pursuant to the International Child Abduction Remedies Act (22 USC 9001, et. seq.).  In its subsequent order, the court set forth the amount of the fees to be paid and its analysis in calculating the fee award. When calculating the fees due to a prevailing parent in a 1980 Convention return proceeding, the court uses the "lodestar" calculation, determining the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.  The amount of fees can then be adjusted upward or downward.  The party requesting the fee award bears the burden of establishing the reasonableness of the fees and costs and mu...