In Blanc v Morgan, 721 F.Supp.2d 749 (WD Tenn 2010) on April 27, 2010, Petitioner Jean-Christophe Blanc ("Father") sought an order compelling the return of his daughter, "M." ,age four, from M.'s mother, Respondent Jennifer Morgan ("Mother"). Mother filed a verified answer on May 17, 2010. Father, age 44, was a citizen and resident of France. Mother, age 33, was a citizen and resident of the United States and resided in Tennessee. Mother and Father first met in 1998 or 1999 when Mother applied for a position with a Memphis restaurant at which Father was then employed as an executive chef. In early February 2001, Mother and Father together moved to France. They never married. Mother worked with Father in a restaurant at which they were the only two employees. Each year, Mother applied for and received a carte de sejour, roughly the French equivalent of a U.S. green card, which allowed her to stay in France. M. was born January 2, 2006 in Montpellier, France. Once M. was born, Mother completed paperwork with the U.S. Consul in Paris and obtained official recognition of M.'s birth abroad and U.S. citizenship. Accordingly, M. Was a citizen of both France and the United States. After M.'s birth, Mother, with Father's consent, took M. on trips to the United States on five separate occasions, staying for at least a month each time before returning to France. In the summer of 2008, an incident occurred in which Father returned to the couple's home inebriated by an evening of drinking, began vomiting, and passed out. Mother attended to Father, but the next morning Father became angry with Mother because he felt that Mother had been insufficiently concerned about the nature of his condition and had thereby placed his life in jeopardy. Mother testified that after this incident she decided she needed to terminate her relationship with Father. Around this same point in time, Mother learned from a French dermatologist that she had carcinoma. In September 2008, Father drove Mother and M. to the airport for their departure on yet another trip to the United States. Father testified that when Mother and M. left for the United States in September 2008, he fully expected that the two would return to France after a month or so, as had been the case with their previous trips. Mother had purchased round-trip tickets, left a large amount of clothing and other personal items at their home in France, did not close her French bank account, and kept bills jointly in her and Father's names. Mother also asked Father to pick up her renewed carte de sejour, as it was issued shortly after she departed for the United States. In the United States, Mother and M. moved in with Mother's mother--Ms. Sharon Morgan--with whom the two have lived since. Mother remained in regular and frequent contact with Father since returning to the United States and allowed contact between M. and Father through Skype and telephone calls to the extent feasible for a young child. Once in the United States, Mother began a course of treatment for her cancer, including a major surgical operation in December 2008--all of which Mother communicated to Father. Father visited Mother and M. in Memphis in February 2009. During the trip, Father slept in Mother's room in the home of Mother's mother, while Mother slept on a couch in another room of the house. Mother rebuffed Father's attempts to show Mother physical affection and refused to commit to return to France at a precise time in the future. Father concluded that Mother no longer intended to return to live with him in France and that legal action to protect his parental rights was necessary. Father then initiated legal proceedings in April 2009 by summoning Mother to appear at a hearing before the family affairs judge of the County Court of Montpellier (France). Mother, however, did not receive proper process or timely notice of the court's scheduled hearing. The Montpellier County Court issued its decision on September 3, 2009 in which it ordered the immediate return of the child [M.] to her usual place of residence at [Father's] residence, in France. Father subsequently filed a "Request for the Return with the designated French Central Authority. Father's application was stamped filed with the French Central Authority on February 16, 2010. The French government then forwarded the application to the United States Central Authority--the U.S. State Department's Office of Children's Issues. Father filed his verified petition on April 27, 2010. The District Court found that M. was born in France while Mother and Father were permanently and indefinitely living together in that country. Notwithstanding the fact that Mother brought M. on several extended trips to the United States after her birth, the majority of M.'s life prior to September 2008 was spent in France. Mother had--at least at one point in this controversy--asserted that M. possessed the status of an habitual resident of both France and the United States. The Court noted that the Sixth Circuit has rejected the notion that a child may possess more than one habitual residence at any one time. (Citing Friedrich v. Friedrich ("Friedrich I"), 983 F.2d 1396, 1401 (6th Cir.1993) ("A person can have only one habitual residence."). Thus, the Court concluded that M. was an habitual resident of France from birth until her removal to the United States in September 2008. The Court further concluded that Mother's September 2008 removal of M. to the United States did not alter M.'s status as an habitual resident of France. Courts generally look to "the parents' last shared intent" when confronted with the question of whether an habitual residence has changed. Where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence. When Mother departed France with M., Father undoubtedly anticipated that the two would return within a month or so, as had been the case with their previous visits to the United States. Given Mother's past pattern of extended trips, her purchase of roundtrip plane tickets, her decision to leave personal items at their home, her maintenance of a French bank account and bills in her name, and her request of Father to pick up her renewed carte de sejour for her, Father's belief that Mother and M. would return was reasonable. Moreover, the evidence strongly suggested that at the time of her departure, Mother in fact intended to return to France with M. and only later changed her intentions. Father acquiesced in Mother's decision to remain in the United States so that she could receive and recover from treatment for cancer as well as spend time with her family during her recovery, but the record was clear that Father expected Mother and M. to soon return. The Mother did not contest that one parent's refusal to return a child to its family home violates the non-consenting parent's rights of custody under French law. See C. Civ. arts. 372-87. Mother instead argued first that Father consented to M.'s living indefinitely in the United States and that--even assuming Father did not consent--Mother's wrongful removal or retention occurred in either September 2008 or March 2009. The Court found that Mother's wrongful retention occurred in March 2009, as this is the point at which Mother made explicit her intention to live with M. in the United States and thereby separate M. from Father. The court found that while Mother and M. were in France, Father clearly exercised his rights. Mother and M. lived with Father, and Father was involved in M.'s life. After Mother and M. came to the United States, Father remained in contact with M., though his ability to do so effectively was obviously hampered by the fact that their communication could only be conducted through a phone call or Skype and M. is a young child. Father visited M. in the United States and spent extensive time with her during those trips. Thus, the Court found that Father exercised his custodial rights prior to M.'s removal from France and Father would have continued to exercise those rights but for Mother's removal of M. from France. Accordingly, Father satisfied the final requirement for a petition for return under the Hague Convention. For her primary defense, Mother relies upon the exception created by Article 12 of the Hague Convention, which establishes a one- year limitations period circumscribing the power of a petitioned court. If the petitioner initiated proceedings within a year of the child being wrongfully removed or retained, the court must order the child's return in the absence of some other exception or defense. If a year or more elapsed between the wrongful removal or retention and petitioner's initiation of proceedings, the court need not order the child's return if the respondent establishes by a preponderance of the evidence that the child is "now settled in its new environment." Father did not file his first such petition until April 27, 2010--more than one year after March 2009. Accordingly, the Court found that the filing of the instant petition was not subject to the mandatory return provision of Article 12. Rather, the Court must determine whether M. had become settled in her new environment. After carefully evaluating and weighing all of the evidence in this case, the Court concluded that Mother had not carried her burden of establishing by a preponderance of the evidence that M. had become settled in her new environment. The evidence of M.'s ties to the Memphis area was not especially specific and was not as substantial as the evidence in other cases wherein courts have found that children of a similar age were settled. See, e.g., Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1152 (E.D.Wash.2007) (finding three-year-old child to be well settled where evidence showed that child was (1) performing above grade level; (2) the child was "well-liked ... [with] ... a strong core of friends;" (3) the Respondent "routinely" took the child to "community cultural events;" and (4) the child had many relatives in the Western United States with whom the child would spend holidays.). The Court's determination that Mother cannot avail herself of the exception for a child settled in a new environment was guided by several additional considerations. First, Father's petition was filed with the Court only a few weeks after the passage of the one-year time period that began to run when Father became aware of Mother's refusal to return M. to France. Second, during the one-year period beginning in March 2009, Father pursued legal remedies in French courts and obtained an order commanding M.'s return. In contrast, Mother refused to participate in the French proceedings after she received notice of them and, even at the Court's July 1st hearing, Mother appeared entirely unconcerned that a French court had entered a judgment adverse to her interests. Under the Hague Convention, it is of paramount concern that courts prevent a party in a custody dispute from deriving a benefit through wrongdoing. A federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention. (Citing Friedrich II, 78 F.3d at 1067 (citing Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir.1995) ; see, e.g., Antunez-Fernandes, 259 F.Supp.2d at 814-15 (concluding that return of children to France was appropriate because of respondent's misconduct even though petition was filed more than one year after the wrongful removal or retention and even though children had become settled in their new environment). Therefore, the Court concluded that Mother was not entitled to relief under Article 12. The Court noted that Under ICARA, "[a]ny court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. 11607(b)(3). In determining the amount of reasonable attorney fees to be recovered under 11607(b)(3), a court should not simply rely upon an affidavit from counsel stating that the rates charged comport with prevailing market rates. The court should instead utilize its own knowledge of the usual and customary rates in the market for the type of case when it has not been supplied with specific evidence of the prevailing rates in the relevant market. It noted that Courts typically apply the lodestar method to calculate fees in cases arising under ICARA and the Hague Convention. According to the evidence submitted at the Court's July 1st hearing, Father's attorneys billed as follows: one hour for Ms. Landers at the rate of $300 per hour; 31.50 hours for Ms. Landers at the rate of $375 per hour; 35.35 hours for Ms. Brackin at the rate of $250 per hour; and .25 hour of paralegal time at the rate of $125 per hour. The Court found that the hourly rates charged by Ms. Landers and Ms. Brackin--as well as the rate charged for work by their paralegal–were excessive and unreasonable given the usual and customary rates in the Memphis legal market and the nature of this case. It reduced the hourly rate for Ms. Landers to $215 per hour and the hourly rate for Ms. Brackin to $135 per hour and awarded attorney fees for Ms. Landers at the rate of $215 per hour for 32.50 hours of work for a total of $6,987.50 and awarded attorney fees for Ms. Brackin at the rate of $135 per hour for 35.35 hours for a total of $4,772.25. The Court reduced the charge for .25 hour of paralegal time to $65 per hour for a total of $16.25. Thus, the overall total amount of reasonable attorney fees and costs owed to the Landers Firm by Mother was set at $12,337.81. In addition the Father submitted an itemization of total expenses incurred for this case of $6,405.89. This figure included $1,799.26 for representation of Father by counsel in France. As the Court was not presented with evidence that the amount charged by his French counsel was reasonable and customary (regardless of whether Memphis, Tennessee or Montpellier, France is deemed to be the relevant legal market), how the fee was calculated, or even why these fees were necessary, the Court declined to award any amount for representation of Father by his counsel in France. Also included in the list were entries of $1,421.59 for plane reservations and $1,270.95 for hotel reservations for a stay in Memphis from June 24 to July 3, 2010. Lodging and transportation expenses, if reasonable and related to the litigation, are recoverable under 11607(b)(3). See, e.g., Neves, 637 F.Supp.2d at 344. The Court found these amounts to be reasonable and granted Father's request for these amounts. The remaining expenses listed in the itemization all appeared to be for translation services, process servers, and other incidental expenses contemplated by 11607(b)(3). It pointed out in a footnote that the mother had not argued that an award of attorney fees and costs would be "clearly inappropriate" or otherwise challenged Father's request. |
