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In Neves v Neves, 637 F. Supp 2d 322 (W.D. North Carolina, 2009) on
April 16, 2009, the Petitioner Susanne Neves, a German citizen, filed a
Petition against her estranged husband, Respondent Erico Ferreira Neves
and Respondents Barthi Patel and Mahesh Patel seeking the return of the
Neves's two minor children to Germany. The Petitioner alleged that on or
about February 15, 2009, Respondent Neves wrongfully removed the
parties' two children from their habitual residence in Germany and since
that time wrongfully retained them in the United States. The Petitioner
further alleged that the Respondent Patels assisted Respondent Neves in
wrongfully removing the children to this District and in wrongfully
retaining the minor children in the United States by allowing them to
reside in the Patels' home, located in Matthews, North Carolina. Along
with the Expedited Petition, the Petitioner filed an Expedited Ex Parte
Motion for Pick-Up Order and Expedited Service and Surrender of Passport
and Travel Documents. The Court granted this motion and directed the
United States Marshals to take custody of the minor children and to
seize Respondent Neves's and the minor children's passports and travel
documents. The Court entered an Amended Order on April 17, 2009,
directing the United States Marshals Service to deliver custody of the
minor children to the Mecklenburg County Department of Social Services
pending further Order of the Court and ordering the Petitioner to
surrender her passport and travel documents as well. . On April 17,
2009, the United States Marshals delivered the minor children to the
custody of Youth & Family Services, and took possession of the parties'
passports and travel documents, which were subsequently deposited with
the Court for safekeeping pending a final hearing in this case. On April
24, 2009, the Court ordered that custody of the minor children be
transferred to the Petitioner pending the final hearing. The Patels did
not make an appearance in this action.
The Petitioner was a resident and citizen of Germany. The Respondent
Erico Neves was African-American and of partial Jewish descent. He was
born in Brazil but was a naturalized United States citizen. He resided
in Germany since 1995. The parties were married on November 19, 1997.
The parties' first child, J.F.N., was born in 1999 and was nine years
old. Their second child, F.F.N., was born in 2002 and was six years old.
The parties traveled to Washington, D.C. for the birth of both children.
After each birth, the family immediately returned to their home in
Brandenburg, Germany. In November 2008, the parties separated, and the
Petitioner moved with the children to nearby Brielow, Germany to live
with the Petitioner's parents. The children continued to attend a
private elementary school in Brandenburg, and report cards introduced at
the hearing indicate that the children were performing well
academically. Although the parties did not have a written agreement
regarding visitation, the parties verbally agreed that Respondent Neves
would see the children during some weekends and holidays. J.F.N. had
regular visitation with her father at least twice monthly from November
2008 through January 2009. F.F.N. did not want to
visit his father on these occasions, but the Petitioner brought F.F.N.
with her to
drop off and pick up J.F.N. from these visits so that Respondent Neves
could at
least see and talk to F.F.N. In February 2009, both children visited
with their
father for the first time since the parties' separation. The Petitioner
dropped
off the children on Monday, February 2 and picked them up again on
Thursday,
February 5. The following day, the Petitioner left F.F.N. to visit with
his father
over the weekend, and the Respondent took F.F.N. to school the following
Monday,
February 9. On Friday, February 13, at Respondent Neves's request, the
Petitioner brought the children to visit Respondent Neves at his home in
Brandenburg. The parties agreed that the Petitioner would pick up the
children from Respondent Neves's home at 1:00 p.m. on Sunday, February
15. When Petitioner arrived at Respondent
Neves's home to retrieve the children on February 15, there was no one
there. Eventually she located Respondent Neves and the children at the
Patels' home in Matthews, North Carolina. The Petitioner then filed the
Expedited Petition for Return of Children to Petitioner and Expedited
Petition for Immediate Issuance of Show Cause Order to Respondent
Subsequent to the filing of this Petition, the Petitioner obtained a
decision from the Local Court-Family Court of Brandenburg a.d.H. . The
Decision,
which is issued by a German court with authority under German law to
make determinations applying the Hague Convention, states, in pertinent
part (as
translated), as follows: The removal of the children by the Respondent
from their habitual residence in Brielow to the U.S.A. is wrongful
according to Article 3 of the Hague Convention, because he breached the
joint rights of custody attributed to the
Petitioner and the Respondent thereby. The parents exercise the rights
of
parental custody jointly pursuant to sec. 1626 BGB [German Civil Code].
The
Respondent removed the children to the U.S.A. without the knowledge and
against
the will of the Petitioner. He was not entitled to change the children's
habitual residence in the absence of the Petitioner's consent. In
particular, he was not entitled to remove the children abroad to a place
not known to the Petitioner, thus preventing the Petitioner from
exercising the rights of parental custody. The Petitioner actually
exercised the rights of custody. Prior to their removal to the U.S.A.
the children habitually resided with the Petitioner.
Respondent Neves testified that he brought the children to North
Carolina because
he was concerned about their safety and welfare in Germany. He testified
that
J.F.N. in particular was "desperate" to leave Germany and had threatened
to run
away from home. Respondent Neves testified that after he brought the
children to
North Carolina, he asked them every day whether the children wanted to
go back to
Germany, and that they both cried and said they did not want to return.
Respondent Neves testified that J.F.N. was fearful of being assaulted in
school and was scared to go out at night due to racial violence and the
prevalence of neo-Nazis in and around Brandenburg. He recounted that he
would have to turn the television volume up so his daughter could not
hear drunken neo-Nazis singing in the street. Respondent Neves further
testified that there had been neo-Nazi rallies in Brandenburg, including
one numbering more than 700 people that occurred near the place where
J.F.N. took gymnastics. He also recounted one particular incident in
September 2007 when the Petitioner was driving home with the children
and the police advised her to take a different route to avoid driving
the children through a neo-Nazi demonstration. Respondent Neves
testified that he never goes out past dark with the children because of
the presence of neo-Nazis in the city. He further testified that one New
Year's Eve, he was attacked on the street in Berlin by neo-Nazis because
of his race.
Respondent Neves further testified that two years ago, when J.F.N. was
in public
school, she was slapped in the face, bitten, and called a "dirty
brownie." He
testified that due to this treatment, the parties enrolled the children
in a
private Christian school, which the children continued to attend until
their
removal from Germany in February, 2009. Respondent Neves also testified
regarding the strained relations between the children and the
Petitioner's parents. Respondent Neves testified that the Petitioner's
family had not accepted the children because of their race. He testified
that the Petitioner's family never talked to the children and excluded
them from family events since 2002. Respondent Neves testified that when
he and the children pass the Petitioner's brother-in-law in the stairway
of their apartment building, the Petitioner's brother-in-law makes
monkey noises at them. He also recounted one incident in 2003 when the
Petitioner's sister used a racial epithet and burned his finger with a
cigarette during an argument. The Petitioner denied that her family has
any animosity toward Respondent Neves or the children because of their
race.
The parties stipulated that the children resided continuously in Germany
prior to
their removal to the United States in February 2009.
The Court pointed out that under German
law, parents who are married at the time of a child's birth have joint
custody of the child until the operation of law (such as the death of a
parent) or a court order terminates joint custody. The Local
Court-Family Court of Brandenburg a.d.H. found in its April 15, 2009
Decision that the parties currently share joint custody of the minor
children and thus, the Petitioner had "rights of custody" within the
meaning of the Hague Convention. The German Court further found that the
Respondent's removal of the children from Germany without the
Petitioner's knowledge or consent was in breach of the Petitioner's
custody rights under German law. The German Court's findings in this
regard were entitled to considerable deference. (Citing Miller v.
Miller, 240 F.3d 392, 400-01 (4th Cir.2001). The court found Petitioner
established by a preponderance of the evidence that she had rights of
custody with regard to the children and that the children were removed
in breach of her custody rights under German law. It further found that
in removing the children from Germany, Respondent Neves received
substantial assistance from Respondents Barthi and Mahesh Patel.
The parties stipulated that the Petitioner was exercising her rights of
custody at
the time of children's removal.
Respondent Neves opposed the return of the
children on the ground that a return to Germany would expose them to a
grave risk of physical or psychological harm or otherwise would place
them in an intolerable situation. Respondent Neves asserted that the
children were subjected to physical attacks and other mistreatment by
their classmates because of their race. The Court noted that the
evidence on this point was exceedingly weak. The testimony was that
J.F.N. was slapped in the face by a fellow student when she was in the
first grade. There was no evidence, only speculation by
Respondent Neves, that this incident was racially motivated, or, for
that matter,
represented anything more than a personality dispute between two first
graders
that got out of hand. Even if this incident could be characterized as an
act of
racial animosity, the evidence showed that this incident, along with the
other acts
of alleged mistreatment suffered by the children at school, occurred
over two
years prior to their removal from Germany when they were enrolled in
public
school. The children had since been enrolled in a private school, where
they
are performing well academically, and there is no evidence that they
have been
subjected to any kind of mistreatment by their classmates in their new
environment. The Court found that these incidents of alleged racial
animosity did not constitute evidence that the children face a grave
risk of
physical or psychological harm upon return to Germany or that return of
the
children would place them in an intolerable situation.
Respondent Neves further asserted that the children were subject to a
grave
risk of psychological harm due to the prevalence of pornographic images
in the
German media. The only evidence presented, however, was that such
photographs appeared only occasionally in local newspapers, and while
Respondent Neves testified that these newspapers were readily available
to the children in the Petitioner's home, there was no evidence that
such offensive photographs were actually viewed by the children.
Respondent Neves also complained of an incident at a pool party where
some of the Petitioner's relatives swam naked in front of the children
and encouraged the children to do so. The Court did not find the
evidence presented to constitute clear and convincing evidence of a
grave risk of psychological harm to the children. Respondent Neves
attempted to prove this incident by relying upon prior statements of the
Petitioner. The Petitioner denied that this incident even took place. In
light of this conflicting evidence, the Court does not find Respondent
Neves's evidence on this point to be either clear or convincing.
Furthermore, in recounting the incident, Respondent Neves testified that
his daughter refused to swim with the adults, and the Petitioner
promptly left the party with the children. There was no clear and
convincing evidence that continued exposure to the Petitioner's family
posed a grave risk of physical or psychological harm or otherwise places
the children in an intolerable situation. While the children's
grandparents may be zealous in their pursuit of the children's physical
fitness and somewhat strict in their discipline, there was no evidence
that they pose any serious risk of harm to the children. Moreover, while
the actions of the Petitioner's sister and brother-in-law may be
unfortunate and ill-considered, they did not rise to the level of
creating a grave risk of
physical or psychological harm. To the extent that the attitudes and
actions of
the Petitioner's family may be harmful to the children, the German
courts are
clearly capable of adequately protecting the children from such harm.
Finally, while the existence of neo-Nazi groups was disturbing, and the
acts of racial prejudice and animosity described by Respondent Neves
were certainly warranting of condemnation, there was no clear and
convincing evidence before the Court to show that the racial situation
in Germany is intolerable or that there is a grave risk of physical or
psychological harm to the children in returning to this environment.
This was particularly true in light of the evidence presented showing
that the local authorities acted to shield the children from any such
incidents.
The court determined the amount of reasonable attorney's fees to award
under ICARA, applying the lodestar method. The Court allowed the
Petitioner to recover the $191.25 costs of translations, but found that
Petitioner failed to show that the other legal expenses that she
incurred in Germany were necessary expenses related to this case, nor
had she shown that such expenses were reasonable. Petitioner claimed a
total of $18,350.11 in various other expenses that she incurred in
securing the return of the children, including $3,633.18 in airfare;
$110.00 in cab fare; $3,666.13 in lodging expenses; $10,324.65 in
investigative services fees; $600.00 in filing fees and court costs; and
$16.15 in postage. The Court found these expenses to be reasonable and
necessary to the Petitioner's efforts to have the children returned to
Germany under the Hague Convention.
The Court noted that under ICARA, the Court is required to award the
Petitioner's necessary fees and costs incurred unless such award "would
be clearly inappropriate." The Respondent bears the burden of
establishing that an award of fees and costs would be clearly
inappropriate under the circumstances. Whallon v. Lynn, 356 F.3d 138,
140 (1st Cir.2004). Respondent Neves argued that he proceeded in good
faith and that he had no money, no assets, no home, and no job as of yet
in the United States and thus had no means by which to pay any award to
the Petitioner. Respondent Neves argued that the only asset that he
owned was a two-story building in Brandenburg, Germany, where the
Petitioner and the children currently lived. The Court found that this
property was a substantial asset from which Respondent Neves can satisfy
his obligation to the Petitioner, despite his current unemployment.
The Court found that the Petitioner had incurred "expenses ... related
to the return of the children in the amount of $39,999.36 and that an
award of these expenses to the Petitioner would not be "clearly
inappropriate." Of the total amount of fees and costs awarded to the
Petitioner, Respondent Neves was held liable to the Petitioner for
eighty-five percent (85%) of that award, or $33,999.46, and the
Respondents Barthi and Mahesh Patel were held jointly and severally
liable to the Petitioner for fifteen percent (15%) of that award, or
$5,999.90.
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