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 ...

On January 7, 2021, in the case of Dubikovskyy v. Goun , the U.S. District Court for the WD of Missouri, denied Mr. Dubikovskyy's request to return his daughter to Switzerland.   Mr. Dubikovskyy (who is Ukrainian) and Ms. Goun (who is Russian) are permanent residents of Switzerland, where they resided with their daughter (age 12) in Lausanne, while Mr. Dubikovskyy commuted to Geneva for work.  MD, their daughter, had been born in California, and was a U.S. citizen, but had not lived in the United States since age 3.  In 2020, Ms. Goun accepted a teaching position in Missouri, and arranged to move with her new significant other (as the parties were still married), their child, and MD.  She told Mr. Dubikovskyy, who was sharing joint custody over MD under a Swiss court order, the day before she left in July 2020.  Litigation ensued, where Mr. Dubikovskyy obtained a subsequent Swiss custody order granting him custody, and a criminal arrest warrant for Ms. Goun...

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...

In Avendano v. Balza , the First Circuit affirmed the U.S. District Court's refusal to return G, a minor child, to Venezuela on the basis that G was mature, and objected to the return.  The Petitioner Mother appeals the court's finding on two points. Point one : Petitioner argues the court wrongly concluded the child was mature The trial judge did not commit clear error when concluding that the child was mature.  The trial judge had examined a variety of witnesses who had observed the minor child's demeanor, heard testimony from the child's Guardian Ad Litem , and had even interviewed the minor child personally in the GAL's office before concluding that the child's desires were "very clear, consistent, and rational" and that he not only stated a preference for the United States, but clearly objected to being returned to Venezuela.  The Court rejected the Petitioner's argument that the Court should have examined the child's maturity at the time ...

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 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...

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...