MK Family Law

On March 15, 2021, in the case of Pozniak v. Shwartsman , the U.S. District Court for the EDNY ordered a minor child to be returned to Israel under the Hague Abduction Convention.   Ms. Pozniak (a Ukrainian national) and Mr. Shwartsman are unmarried parents to one 9-year-old child, SP.   During the first few years of SP's life, the family moved between Ukraine and Israel, until about 2014, at which time the family settled in Israel, sometimes under the same roof, and, at other times, not.   Mr. Shwartsman traveled with SP a few times to New York City.  The parents had no formal custody agreement, but worked together to ensure access between SP and both parents.  In July 2019, Mr. Shwartsman traveled to NYC with SP.  At trial, the parents disagreed as to the length of the trip, with Mr. Shwartsman arguing it was meant to be indefinite.  Ms. Pozniak argued that she agreed that SP return no later than September 1st for school, but that date...

On April 5, 2021, the U.S. Supreme Court invited the Acting Solicitor General to file a brief in the case of Golan v. Saada, to express the views of the United States.  This blog has featured a variety of updates on this case over the past year.  The issue presented to the Supreme Court was:  "The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is: Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding."   Ms. Golan's Petition for a Writ of Cert can be found here .  Mr. Saada's Affirmation in Opposition can be found here .  Ms...

On March 30, 2021, the European Court of Human Rights, in Case of Thompson v. Russia , weighed in on a Hague Abduction case filed in Russia, seeking the return of a minor child to Spain.  At the trial level court in Russia, the court rejected the return petition on the basis that returning the minor child would place the child in an intolerable situation in the vein of Article 13(b), because the child, age 3 years and 3 months, was "deeply attached to his or her mother, both physiologically and psychologically."  The trial court also relied on Principle 6 of the UN 1959 Declaration of the Rights of the Child, arguing that, except in exceptional circumstances, a child of tender years should not be separated from his or her mother.  The mother had no intention of returning to Spain.  The appellate court agreed and further relied on Article 38 of the Russian Federation Constitution arguing that the child had become well integrated into her social and family environment ...

On March 1, 2021, Mr. Saada filed his response to Ms. Golan's petition to the U.S. Supreme Court, where she asked the court to answer " Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child not withstanding the grave risk finding ."  Mr. Saada takes the view that "ameliorative measures" are simply one tool available to a court, in that a court always has the discretion to return a minor child, even if Respondent demonstrates an exception by the requisite burden of proof from ICARA.  Mr. Saada argues that Ms. Golan is simply seeking to restrict the court's discretion, thereby undermining the goals of the treaty.  Specifically, in addressing why cert should not be granted, Mr. Saada says, "To be clear, none of the Circuits have established a blanket rule that it is inappropriate to consider ameliorati...

On February 9, 2021, in the case of Lukic v. Elezovic , the U.S. District Court for the ED of NY ordered the minor child returned to Montenegro after both parties filed motions for summary judgment.  The court reviewed memorandums and affidavits, and issued its order granting the father's motion, and denying the mother's. The court concluded that Montenegro was the child's habitual residence.  The parents had a written custody order from a Montenegrin court that, on its face, appeared to give the father only access rights, but the Montenegrin Code provided for the father to retain rights to decide the child's residence jointly with the mother unless abrogated by court order, so the court concluded the father had a ne exeat right in the vein of Abbott v. Abbott .  The mother argued that the father signed a travel consent form for an "unlimited" amount of time, but looking at the father's subjective intent, the consent form was merely to authorize an unrest...

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...

The UK Supreme Court heard oral argument this week in the case of G v. G, on the complex issue of a child's asylum claim and a parent's request to return that child using the Hague Abduction Convention to the country that the child is trying to escape.  You can find the case details here .  The questions presented to the Supreme Court were:  1) Does a child named as a dependent on a parent's asylum application have any protection from refoulement?  2) Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement? 3) Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum? The Court of Appeals for England and Wales concluded that the High Court was not barred from determining the Father's application for the return of his child under the Hague Abduction Convention, nor was the court barred from making an order to return the child. ...

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...

In the case of  Pawananun v. Pettit , the U.S. District Court returned the parties' two daughters to their habitual residence of Thailand.  The parties stipulated that the father, Mr. Pettit, had wrongfully removed the parties' children from Thailand.  Mr. Pettit focused on arguing that it would present a grave risk of harm to the children to return them to Thailand because of certain claims of abuse of his daughters that he believed were inflicted by a family friend that may have been having an affair with his ex-Wife. The family friend, Mr. Hardy, was a doctor who had moved to Thailand from the United States.  Mr. Hardy had been investigated in the U.S. after allegedly sexually assaulting patients and staff.  He surrendered his U.S. medical license.  Upon learning of this, Mr. Pettit began surreptitiously investigating Mr. Hardy and his involvement with his daughters by taking the children to a series of doctors without advising their mother of the s...

In the recent case of In re MVU , the Appellate Court of Illinois affirmed an order refusing return of a minor child to its habitual residence of Mexico because that would present a grave risk of harm to the child based on the father's domestic violence of the mother.   The court in opining on the grave risk acknowledged that most jurisprudence on the Hague Abduction Convention arises from federal courts.  This particular case was brought in a state court where there was a parentage case pending over the same child (which was stayed when this Hague Abduction return petition was filed).  At trial, the taking-parent mother, presented evidence about several situations she argued formed the basis of a grave risk of harm to returning the child.  The situations included: an altercation where she says the father choked her while she was holding the child; another where the father threatened her that if she took the child, he would kill her; and another where the father...

The Second Circuit addressed a 2nd appeal in the Saada v. Golan case on October 28, 2020, and affirmed Judge Donnelly's May 5, 2020 order to return the minor child to Italy.  As a reminder, this family has been litigating the father's Hague Abduction Convention return petition up and down the second circuit for a few years.  The original trial yielded a finding that the child would be subject to a grave risk of psychological harm if returned to Italy, but the court fashioned certain "undertakings" to nonetheless make the child's return possible.  The mother, Ms. Golan, appealed.  The Second Circuit acknowledged that any undertakings had to be enforceable, and it remanded the matter to Judge Donnelly for further review of what ameliorative measures can and should be put in place that would enable a safe return.  After 9 months, Judge Donnelly again ordered the child returned , and altered the ameliorative measures.  In those 9 months, additional things had ...

The U.S. District Court for the District of New Jersey ordered 2 children returned to El Salvador on October 30, 2020 in the case of Re: JCC v. LC (Civil Action No. 19-21889).  There are a few interesting statements by the court worth mentioning in a blog post.  First, the Court, at no point, cites to Monasky when elaborating on its conclusion that El Salvador was the children's habitual residence.  The Court specifically said it applied the Third Circuit's definition of habitual residence, without elaborating on the standard.  It did provide reference to some facts, including the children's typical residence, the existing El Salvador custody order, the return airline ticket, and the parents' intentions, so in many regards, this has the indicia of a totality-of-the-circumstances analysis, nonetheless. Second, the court rejected the Respondent Mother's contention that the Father was abusive and it would be a grave risk to return the children.  In weighing the e...

The case of Schwartz v. Hinnendael gives an interesting assessment of both the Monasky habitual residence standard and the grave risk of harm analysis.  I suggest reading the actual case to get the best view of how the court weighed all the facts and reached its conclusion.  I think the conclusion shows how fact-intensive these cases are, and how judge-specific certain results may be. The parties are both Americans, met in California, and were married in the United States.  The parties separated, and Ms. Hinnendael initiated a divorce proceeding in the United States.  Ms. Hinnendael then moved to Mexico for work.   Mr. Schwartz followed, and the two reconciled.  Ms. Hinnendael ended work with her company (where she sold time shares), but Mr. Schwartz started working for the same company.  The couple then had two children (one in 2018 and the other earlier this year (2020)), both in Mexico.   Ms. Hinnendael removed the children from Me...

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...

On May 11, 2020,  the Second Circuit Court of Appeals affirmed the return of a minor child to Ecuador in the case of Valles Rubio v. Veintimilla Castro , 813 Fed.Appx. 619 (2020).  The key issue on appeal revolved around the grave risk of harm to the minor child if returned to Ecuador, and more specifically the ameliorative measures available to ensure a safe repatriation of the minor child.  “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”  In this case, the court concluded there was a grave risk of harm, but further concluded that the Ecuadorian courts were capable and willing to protect the child.  The Mother appealed, arguing that the court did not sufficiently develop the record to support its conclusion that there are enforceable ameliorative measures in Ecuad...

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 September 16, 2020, the U.S. District Court for the District of Arizona returned the parties' children to their habitual residence of Germany.  In the case of Radu v. Shon , the Respondent Mother (Shon) conceded that her removal of the children from Germany in June 2019 was wrongful.  She argued 2 exceptions to their return: consent/acquiescence and grave risk of harm.  The court focused predominantly on the grave risk of harm arguments. Shon argued that the Petitioner Father (Radu) was emotionally and psychologically abusive towards her and the children in Germany, causing them to fear Radu.  Shon alleged that Radu had an explosive temper, he yelled, degraded her, and used derogatory language. Further, she argued that Radu banged his hands on the table, threw objects, and once slapped her.  The Court noted that none of this caused the children to require medical attention and no one sought a protective order or filed a police report because of this behavior....

In the case of Trott v. Trott, the Eastern District of New York granted a father's petition to have his two daughters returned to Bermuda. The parties are parents to two daughters.  Their eldest child is not the father's biological daughter, but was raised as his daughter.  The youngest is his biological daughter.  The children had lived in Bermuda since they were young, but, moved to New York with their mother, without objection by their father (despite a Bermudian ne exeat order being in place) in 2013.  During a visit to Bermuda in 2018, the children alerted their father to what amounted to abuse and neglect by their mother. The father refused to return the girls to New York, and their mother pursued a Hague Abduction return petition in the Berumdian courts.  The trial court examined whether it would be a grave risk of harm to return the children, ultimately concluded it would not, and asked the parties to identify protective measures available in New York ...

In the case of Colon v. Mejia Montufar , the U.S. District Court denied the Father’s request to return his minor child to Guatemala.  The parties had stipulated that the Father met his burden of presenting a prima facie case of wrongful removal, but the Mother presented two exceptions to returning the child: that returning the child would expose the child to a grave risk of harm, and that the child was mature and objected to being returned.  The Court concluded that the Mother did not meet her burden to prove a grave risk, but did meet her burden that the child is of sufficient age and maturity and that the court should consider his objection to being returned to Guatemala.  The Mother first argued that the minor child would be recruited into a gang in Guatemala, or harmed if he refused to join a gang, creating a grave risk of harm if returned.  She hired Dr. Miguel Firpi to testify on both exceptions she argued.  Dr. Firpi opined that the minor child “may ex...

In the case of Pawananun v. Pettit, the U.S. District Court addressed the Plaintiff’s Motion to Strike the Defendant’s asserted defense of a grave risk of harm if the children were returned to Thailand. The parties were married and had two daughters.  The family lived in Thailand.  When the parents separated and divorced, they agreed to joint custody, sharing time with their daughters on a week-on, week-off schedule.  Thereafter, the Plaintiff Mother, began a relationship with a man named Roger Ian Hardy.   The Defendant Father alleges that Mr. Hardy touched his daughters inappropriately. His oldest daughter allegedly reported this behavior to her Father, and subsequently reported to a psychologist that Mr. Hardy inappropriately touched her younger sister.   Defendant Father petitioned a Thai Court to revoke Plaintiff Mother’s custodial rights/parental powers because the Mother supported Mr. Hardy, despite the alleged behavior.  The Thai Court refused to...