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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PIERRE BIEL CIVIL ACTION

LUXEMBOURG NO. 13:5399 PETITIONER SECTION “H” (3) VERSUS JUDGE MILAZZO DINARA BEKMUKHAMEDOVA MAGISTRATE KNOWLES KAZAKHSTAN RESPONDENT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NOW INTO COURT, through undersigned counsel, comes plaintiff, Pierre Biel, who respectfully submits his proposed findings of fact and conclusions of law. To the extent that any of the proposed findings of fact are considered by the Court to be legal conclusions, they are hereby submitted as such. Similarly, to the extent that any of the proposed conclusions of law are considered by the Court to be factual findings, they are submitted as such.

FINDINGS OF FACT

1. The Petitioner, Pierre Biel, is a citizen of .

2. Respondent, Dinara Bekmukhamedova, is a citizen of Kazakhstan.

3. Biel and Bekmukhamedova met in New Orleans, Louisiana in April of 2010. Biel and Bekmukhamedova were together numerous times over the course of the following year. Biel travelled from Luxembourg to New Orleans, New York City, and Miami to meet with

Bekmukhamedova. Both parties also spent 10 to 12 days together in the Maldives.

4. After Biel’s May 2011 visit to New Orleans, Bekmukhamedova told him that she was pregnant with his child. On or about June 6, 2011, Bekmukhamedova travelled to

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Luxembourg on a three-month tourist visa. During that visit, she and Biel decided that she would live with him in Luxembourg prior to and after giving birth. Because her initial visa was expiring,

Bekmukhamedova returned to the United States at the end of August or beginning of September.

Two months later, on November 11, 2011, Bekmukhamedova returned to Luxembourg on a one-year renewable resident permit. When she arrived in Luxembourg in November,

Bekmukhamedova brought all of her belongings with her as she had moved out of her apartment in the United States.

5. Luxembourg is a small landlocked country in Western Europe, bordered by

Belgium, , and . The country lies on the linguistic divide between Romance

Europe and Germanic Europe, borrowing customs from each of the distinct traditions; hence

Luxembourg is trilingual. Under the law of 1984 concerning the use of languages, French is the legislative language, as well as an administrative and judicial language, together with

Luxemburgish and German. Much of the population also speaks English.

6. Luxembourg has a population of approximately 484,000 people (a third of which are foreigners) in an area of 2,586 square kilometers (999 square miles). The country is divided into three administrative districts (Luxembourg, and ), 12 cantons and 116 communes. It has a highly developed economy, with the second highest Gross Domestic Product per capita in the world.

7. Like Louisiana, Luxembourg’s legal system is governed in civil law.

8. Bekmukhamedova lived with Biel in Luxembourg from November 11, 2011.

Their child, VPZB, was born on January 21, 2012 in Luxembourg. Once discharged from the hospital, Biel, Bekmukhamedova, and the child lived together as a family in Biel’s home. All of

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their names appear on the official Luxembourg Certificate of Household Composition issued by

Commune of .

9. VPZB is a citizen of Luxembourg, has a Luxembourg passport, and a Luxembourg

Residency Certificate issued by Commune of Mondercange. His father and relatives on his father’s side are Luxembourg citizens. His mother and relatives on his mother’s side are

Kazakhstan citizens. None of the persons before this Court are United States citizens.

10. From birth until November 2012, VPZB’s treating pediatrician in Luxembourg was

Uwe Blecker, M.D., PhD.

11. Dr. Blecker is certified by the American Boards of Pediatrics & Pediatric

Gastroenterology. In addition to his medical degree, Dr. Blecker is a PhD in Biomedical

Sciences. He is a former professor and chief of St. Christopher’s Hospital for Children in

Philadelphia, Pennsylvania. He is also a former professor and chief at West Virginia University

Hospital.

12. As VPZB’s pediatrician, Dr. Blecker noted that petitioner Biel arranged for and attended all of VPZB’s regular “well baby” visits.

13. Dr. Blecker observed that VPZB was always well cared for and at no time did Dr.

Blecker see any indication of abuse.

14. VPZB received the following vaccinations at Dr. Blecker’s office:

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15. In May 2012 Bekmukhamedova travelled with Biel and the child to the United

States to finalize her divorce from her prior-husband. The family returned home to Luxembourg within a week, as planned.

16. After her November 11, 2011 arrival in Luxembourg on a resident visa,

Bekmukhamedova did not maintain a home anywhere other than Luxembourg. Between

VPZB’s birth on January 21, 2012 and October 18, 2012, VPZB and Bekmukhamedova’s only home was in Luxembourg. While the family occasionally left Luxembourg for various short trips, they always returned home to Luxembourg. Bekmukhamedova and Biel never discussed raising VPZB anywhere other than Luxembourg.

17. Bekmukhamedova’s mother and sister travelled from Kazakhstan to Luxembourg to see VPZB and the family. During that visit, Bekmukhamedova’s mother and sister discussed their intent to return to Luxembourg to see the child in the future.

18. In October 2012 the family traveled from Luxembourg to New York for

Bekmukhamedova to retain her U.S. Green Card. As shown on the trip itinerary, the family was scheduled to depart Luxembourg on October 18, 2012 and return from New York on October 23,

2012.

19. When the family left Luxembourg on October 18, 2012, Bekmukhamedova left a much of her clothes, books, and other personal affects in Luxembourg. Similarly, much of

VPZB’s belongings were also left in Luxembourg, including ultrasound photographs of Victor and other sentimental items.

20. On October 18, 2012, VPZB was settled in the culture of Luxembourg, where he had lived from birth with his mother and father.

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21. On October 18, 2012, Biel clearly intended that VPZB would continue to live and be raised at the family’s home in Luxembourg.

22. Regardless of her present testimony regarding her subjective intent, prior to and after VPZB’s birth, and until at least October 18, 2012, Bekmukhamedova manifested an intent to have the child be raised in Luxembourg.

23. After several days in New York, Bekmukhamedova told Biel that she needed to extend her trip in order to apply for a waiver from the United States government so she could remain away from the U.S. for more than six months without losing her Green Card.

24. Because Biel needed to return to his employment in Luxembourg, he left

Bekmukhamedova and the child in New York. Biel returned to New York in November to bring necessary documentation for Bekmukhamedova to renew her one-year Luxembourg residency permit, which Bekmukhamedova signed.

25. During Biel’s November 2012 visit, Bekmukhamedova informed him that she could return to Luxembourg with VPZB because her papers were not ready yet. Biel left New

York and returned to the family’s home in Mondercange, Luxembourg. Over the next several months he repeatedly visited New York to be with his son and to convince Bekmukhamedova to return to Luxembourg with VPZB. She refused.

26. At the end of January, Bekmukhamedova informed Biel that she was leaving New

York and relocating to New Orleans. She told him that she was never coming back to

Luxembourg. She also told him that she would never let VPZB return to Luxembourg.

27. After it became clear that Bekmukhamedova would not return VPZB to his home,

Biel retained a Luxembourg lawyer. In March of 2013 Biel commenced an action in the

Luxembourg Courts to obtain formal custody of his child. He also contacted government

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authorities in Luxembourg, who put him in contact with the United States Department of State’s

Bureau of Consular Affairs, the Office of Children’s Issues.

28. On March 20, 2013, the Juvenile and Guardianship Court at the Luxembourg

District Court entered a preliminary order on Biel’s request for exclusive parental authority of his son. Bekmukhamedova was not present or represented at that preliminary hearing. The Judge set a final hearing for June 5, 2013 in the Juvenile and Guardianship Court in Luxembourg.

29. Preliminary Judgment in hand, Biel flew to New Orleans and hired a local lawyer and attempted to gain recognition of the preliminary custody determination in Orleans Parish Civil

District Court. He also ran ads in the Times Picayune Newspaper informing Bekmukhamedova of the custody hearing set in Luxembourg on June 5, 2013. Biel also hired a private investigator to find Bekmukhamedova and serve her with the notice of the hearing in Luxembourg. Personal service was accomplished at her New Orleans residence.

30. On June 5, 2013, both Biel and Bekmukhamedova personally appeared with counsel in Luxembourg before the Juvenile and Guardianship Court at the

Court. Bekmukhamedova did not bring VPZB to that hearing. On June 20, 2013, the court issued a written ruling and order that VPZB shall reside with his father, Biel, in Luxembourg.

The court ordered that Bekmukhamedova had visitation rights that could be exercised in

Luxembourg.

31. The Court declined to set the precise dates that Bekmukhamedova could exercise her visitation rights because the parties had not submitted arguments on that issue. The Court scheduled a hearing for January 8, 2014 to finalized Bekmukhamedova’s visitation schedule. The common visitation schedule in Luxembourg is similar to that in the U.S., the non-primary care giver is award visitation every other weekend, and half of all school holidays. However, the

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Luxembourg Court has not determined the appropriate visitation in this case. If Biel and

Bekmukhamedova disagree about Bekmukhamedova’s exercise of visitation rights prior to the

January 8, 2014 proceeding, the Luxembourg court system has mechanisms of obtaining relief by summary proceeding.

32. Since the issuance of the Luxembourg Court’s June 20, 2013 order,

Bekmukhamedova has retained VPZB in New Orleans, denying Biel his custody rights under

Luxembourg law and the Luxembourg Court’s order.

33. Biel is a loving father who cared for his son’s needs, including providing him with food, shelter, and arranging for medical care. The child will be well cared for on return to Biel’s custody and care in Luxembourg. Indeed, all of the evidence shows that Biel was a loving, nurturing father during the 10 months that VPZB was in Luxembourg, and during Biel’s visits to the United States during the abduction. VPZB’s grandmother and relatives live in Luxembourg and will assist in caring for and nurturing the child, and meeting his needs.

34. Any mother/child separation resulting from VPZB’s return to Luxembourg are minimized by Bekmukhamedova’s regular exercise of visitation rights. Bekmukhamedova is as connected to Luxembourg as she is with the United States. She lived in Luxembourg on an extended visa, and there is no impediment to her doing so again.

35. Bekmukhamedova has displayed the ability to meaningfully participate in the

Luxembourg legal process by hiring a Luxembourg lawyer, attending the custody hearing, and appealing the order in Luxembourg. Those same Luxembourg courts have already protected

Bekmukhamedova’s right to be an integral part of VPZB’s rearing. Bekmukhamedova certainly knows how to petition the Luxembourg courts to modify the custody arraignment as may be best for VPZB.

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36. The mental health and emotional issues raised by returning VPZB to Biel are no different than those raised in any case where the parents of a very young child are divorced or separated. There is no danger in VPZB’s return to Luxembourg and the care of his father while the Luxembourg courts and/or government authorities determine Biel and Bekmukhamedova’s relative rights and responsibilities regarding the child. Any impact of the return on the child can be minimized by the prudent actions of both parents, which the Court encourages. There is no factual basis for VPZB not to be returned to his father in Luxembourg.

37. Biel is obviously concerned about VPZB’s experience during the abduction and after the child’s return to Luxembourg. Biel evidenced an intent to enroll the child and himself in counseling to minimize any emotional or psychological trauma which may have occurred during the abduction, and may occur if the child’s mother chooses not to return to Luxembourg to be with her son.

38. Biel spent $70,000.00 in expenses related to Bekmukhamedova removing and retaining their son.

39. Biel spent $20,000.00 in legal fees related to Bekmukhamedova removing and retaining their son.

40. Biel spent $10,000.00 in costs related to this Hague Petition action.

CONCLUSIONS OF LAW

Background

1. Luxembourg and the United States of American are both signatories to The

Convention on the Civil Aspects of International Child Abduction, confected at the Hague on

October 25, 1980.

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2. The Convention on the Civil Aspects of International Child Abduction, confected at the Hague on October 25, 1980 (“Hague Convention”) was implemented by Congress through the International Child Abduction Remedies Act 42 U.S.C. §11601 et seq. (1995). (hereinafter

“ICARA”). Abbott v. Abbott, 130 S.Ct. 1983, 1989 (2010).

3. This Court has jurisdiction pursuant to 42 U.S.C. §11603 because this case involves the removal and retention of a child under the age of sixteen from his habitual residence of

Luxembourg to the United States of America. Abbott v. Abbott, 130 S.Ct. 1983, 1989-90 (2010);

See also, Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 342 (5th Cir. 2004). Venue is proper because VPZB is present in New Orleans, Louisiana, which is within the Eastern District of

Louisiana. 42 U.S.C. §11603(b).

4. The Hague Convention has two primary “objects”: (1) “to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and” (2) “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Convention art. 1. Larbie v. Larbie, 690 F.3d 295, 306 (5th Cir.

2012).

5. The Convention uses the phrases “wrongful removal or retention” and “right of custody” as terms of art. A removal or retention is “wrongful” under the Convention when (1) “it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and” (2) “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Convention art. 3. The Convention considers “rights of custody [to] include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.” Convention art. 5(a). These

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rights differ from “rights of access,” which “include the right to take a child for a limited period of time to a place other than the child's habitual residence.” Convention art. 5(b). Larbie v. Larbie,

690 F.3d 295, 307 (5th Cir. 2012).

6. A Hague Petition claim consists of three elements, which the petitioner must prove by a preponderance of the evidence. See 42 U.S.C. § 11603(e)(1). “A parent wrongfully removes a child when he or she [1] removes or retains that child outside of the child’s country of habitual residence, and [2] this removal: breaches the rights of custody accorded to the other parent under the laws of that country; and, [3] at the time of the removal, the non-removing parent was exercising those custody rights.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th

Cir. 2004).

Habitual Residence

7. A habitual residence determination is a mixed question of law and fact. Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003) (en banc). The Convention does not define

“habitual residence” but directs courts to determine the habitual residence of the child at the point in time “immediately before the removal or retention.” Convention, art. 3. A child can have only one habitual residence, and “it should not be confused with domicile.” Silverman, 338 F.3d at 898.

8. A child’s habitual residence is “the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child's perspective.” Feder v. Evans–Feder, 63 F.3d 217, 224 (3d Cir.1995).

Settled purpose need not be to stay in a new location forever, but the family must have a “sufficient degree of continuity to be properly described as settled.” Id. at 223.

9. In determining whether a particular place satisfies the standard for habitual residence, “[t]he child’s perspective should be paramount,” and “[p]arental intent is not

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dispositive.” Stern, 639 F.3d at 452. Finally, habitual residence is determined by examining “past experience, not future intentions.” Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th

Cir.1995) (internal quotation marks omitted).

10. On October 18, 2012, VPZB was settled in the culture of Luxembourg, where he had lived uninterrupted with his parents since his birth on January 21, 2012. Other courts have held that less time is sufficient to establish habitual residence for an infant. In Nunoz–Escudero v.

Tice–Menley, 58 F.3d 374, 378–39 (8th Cir.1995), the child’s father, a Mexican citizen, married the child's mother, an American citizen, in Mexico. Id. at 375. Less than a year later, the mother gave birth to the child in Mexico. Id. Two months later the mother left Mexico, and took the child with her to her family’s home in Minnesota. Id. The mother argued that she had “no intention of remaining in Mexico,” and that the child was too young to form a habitual residence in Mexico.

Id. at 378. The Court rejected the mother's argument because “the baby was born and lived only in Mexico until his mother fled to the United States. To say that the child’s habitual residence derived from his mother would be inconsistent with the Convention, for it would reward the abducting parent and create an impermissible presumption that the child’s habitual residence is wherever the mother happens to be.” Id.

11. Some courts look to the shared intent of the parents when determining habitual residence. See Morrison v. Dietz, 2008 WL 4280030 *4-5 (5th Cir. Sept. 17, 2008), aff’d 349

Fed.Appx. 930 (5th Cir. 2009). It is undisputed that, on October 18, 2012, when VPZB left

Luxembourg with his family, Biel clearly intended that VPZB would continue to live and be raised at the family’s home in Luxembourg.

12. Regardless of her present testimony regarding her subjective intent, the evidence shows that prior to and after VPZB’s birth, and until at least October 18, 2012, Bekmukhamedova

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manifested an intent to raise the child in Luxembourg. Prior to her November 11, 2011 move to

Luxembourg, Bekmukhamedova discussed living with Biel and raising their child together in

Luxembourg. Consistent with these discussions, she did not maintain a household or lease in the

United States between November 2011 and October 2012. When the family left Luxembourg on

October 18, 2012, Bekmukhamedova left a significant amount of her and VPZB’s belongings in their Luxembourg home, a manifestation of intent to return VPZB to Luxembourg. Consistent with this manifestation of intent to return to Luxembourg, Bekmukhamedova signed the renewal paperwork for her one-year Luxembourg residency permit while she was in New York.

13. Luxembourg is the only reasonable habitual residence in this case. The only two places VPZB has lived are Luxembourg (where he lived with both parents) and the United States

(where he was abducted to by one parent). “On its face, habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward.” Morrison, 2008

WL 4280030 *5 (citing Friedrick v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993 )). The child could not have established a habitual residence in the United States because his father did not intend for VPZB to abandon his residence in Luxembourg. “To establish a habitual residence, there must be a settled intention to abandon the residence left behind and an actual change in geography for a period of time that is sufficient for acclimatization.” Id. (citing Holder v. Holder,

392 F.3d 1009, 1016 (9th Cir. 2004) and Mozes v. Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001)).

As explained above, on October 18, 2011 when VPZB was taken to New York, both of his parents manifested an intent for him to return to Luxembourg. Even if Bekmukhamedova was harboring some secret plan to keep their child in the U.S., her sole subjective intent could not unilaterally change the child’s habitual residence. Holding otherwise would contravene the intent of the

Hague Convention and ICARA.

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14. From the child’s perspective, or the shared intent of the parents, Luxembourg was

VPZB’s habitual residence at the time of the removal and throughout the continued retention.

Custody Rights

15. The petitioner’s custody rights need not be enshrined in a formal custody order issued before the removal or retention; the Convention also recognizes rights of custody that arise

“ ex lege.” Explanatory Report at ¶ 68; see also Convention art. 3 (“The rights of custody mentioned ... above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that

State.”).

16. Assuming Biel has rights of custody, he then need only make the final, and

“relatively easy,” Explanatory Report at ¶ 73, showing that “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Convention art. 3(b). Generally, courts “‘liberally find’” that rights of custody have been exercised unless evidence demonstrates “‘acts that constitute clear and unequivocal abandonment of the child.’” Sealed Appellant, 394 F.3d at 344–45 (citation omitted).

17. The Convention defines “right of custody” as including “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.”

Convention, art. 5(a). Courts broadly interpret a parent’s right of custody under the Convention.

See Abbott, 130 S.Ct. at 1991 (concluding that even parental rights which do “not fit within traditional notions of physical custody” can be sufficient to establish a right of custody under the

Convention’s “broad definition”).

18. The issue of “custody” must be addressed under Luxembourg law because the child was a habitual resident and citizen of Luxembourg at the time of his removal. Friedrich v.

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Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996). On this point, the Court heard the testimony of

Luxembourg law expert, Cathy Arendt, a member in good standing of the Luxembourg Bar, where she practices family law.

19. Under the Luxembourg Civil Code, Biel had rights and responsibilities for his son from the time of his birth. See Luxembourg Civil Code Heading IX, Chapter I, Art. 371-375.

These rights were violated when the child was removed from Luxembourg under false pretenses in

October of 2012. These rights continued to be violated during the child’s retention in the United

States. The June 2013 custody order of the Luxembourg Court further established Biel’s custody rights in light of the fact that VPZB’s mother and father are living apart. Biel’s rights under the custody order continue to be violated by VPZB’s retention in the United States.

20. Accordingly, Bekmukhamedova’s removal of VPZB was wrongful under the

Convention. Article 3 of Hague Convention provides that the removal or retention of a child is wrongful where it violates the custody rights of another person that were actually being exercised at the time of the removal or retention or would have been exercised but for the removal or retention. Lops v. Lops, 140 F.3d 927, 935 (11th Cir. 1998) (“[t]he removal of a child from the country of his or her habitual residence is ‘wrongful’ under the Hague Convention if a person in that country is, or would otherwise be, exercising custody rights to the child under that country’s law at the moment of removal.”); See also Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.

1996); Convention, Art. 3.

21. For similar reasons, Bekmukhamedova’s retention of VPZB is wrongful. During the abduction and retention in the United States, Biel has had only minimal contact with his son, as controlled by the Bekmukhamedova. “Wrongful retention” occurs when it is in breach of rights of custody attributed to a person under the law of the country in which the child was habitually

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resident immediately before the retention; and at the time of retention these rights were actually exercised, or would have been so exercised, but the wrongful retention. Convention, Art.3; Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995).

Affirmative Defenses

22. Convention respondents may assert “several narrow affirmative defenses to wrongful removal.” Sealed Appellant at 343. For instance, a court has no obligation to order a child’s return if the respondent shows by a preponderance of the evidence that the petitioner (1)

“was not actually exercising the custody rights at the time of removal or retention,” or (2) “had consented to or subsequently acquiesced in the removal or retention.” Convention arts. 12 & 13(a);

42 U.S.C. § 11603(e)(2)(B). Neither of these defenses apply to this case because Biel was exercising custody rights under Luxembourg law at the time of the abduction, and these custody rights (and those ordered by the Luxembourg court) were impaired by the child’s retention in the

United States. Moreover, Biel never consented or acquiesced to the child’s removal or retention.

Instead, Biel promptly pursued all available remedies to obtain the return of his son, both administrative through the United States Department of State, and legal, through courts in

Luxembourg and the United States.

23. Article 12 of the Convention allows a court to deny a petition if the Respondent shows, by a preponderance of the evidence, that the child is settled in the new environment. 42

U.S.C. § 11603(e)(2)(B). However, that exception only applies when the child has been in the new environment for a year. Id. (“The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”). Thus the “settled” exception does not apply here

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because VPZB has not resided in the U.S. for a full year, and he has been moved around the United

States at his mother’s whim.

24. Even if the one year period could be met, which it cannot, VPZB is not “settled” in the U.S. as the term is used in the Hague Convention. While the Convention itself does not define what constitutes a child being “settled in [his or her] new environment[,]” Hague Convention, Art.

12, the United States State Department has established that “nothing less than substantial evidence of the child’s significant connections to the new country is intended to suffice to meet the respondent’s burden of proof[ ]” in asserting the well-settled defense. Public Notice 957, Text &

Legal Analysis of Hague International Child Abduction Convention, 51 Fed.Reg. 10494, 10509,

1986 WL 133056 (March 26, 1986). Several factors are considered in determining whether or not a child has become settled:

the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's employment[;] and whether the child has friends and relatives in the new area.

In re: Filipczak, 838 F Supp.2d 174, 182 (S.D.N.Y.2011) aff'd, 2013 WL 692694 (2d Cir. Feb. 27,

2013

25. Considering these factors, the Court notes that VPZB is only 19 months old, and therefore he is not as connected to his environment as might be an older child. In re: Filipczak, 838

F Supp.2d at 182 (“First, the Children are still very young [4 years old and 3 years old] and, though they have adapted well to life in the United States, it does not necessarily follow that they will likely not adapt well to life back in Poland.”) Second, the child has not lived in a consistent residence since arriving in the United States. VPZB has spent three months in New York (at two different residences), and seven months in New Orleans. Based upon his mother’s prior history in

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the United States, moving many times in the course of several years, it is unlikely VPZB will have a consistent residence in the United States if he were ordered to stay. There is no evidence that the child attends church regularly, or at all in New Orleans. And while the evidence suggests that the mother has consistently been employed as an exotic dancer in the French Quarter, the Court notes the profession is not known for its stability. The child does not attend school or daycare,

Bekmukhamedova’s mother and sister live in the New Orleans apartment and care for VPZB while his mother is working. However, VPZB’s grandmother and aunt are Kazakhstan citizens, not

United States citizens. Thus, like Bekmukhamedova and VPZB, there is no guarantee that the relatives will be able to remain in the United States for the long term. Thus even if the one-year period had passed, which it has not, the “settled” exception does not apply.

26. The Hague Convention also provides that abducted children are not required to be returned when the removing parent (here, the mother) shows that return of the child would place him in grave risk of physical or psychological harm, or any other “intolerable situation.” Hague

Convention, art. 13(b); Abbott v. Abbott, 560 U.S. 1, 130 S.Ct. 1983, 1997, (2010). Given the concern of comity among nations, this defense is interpreted narrowly. Van De Sonde v. Van De

Sonde, 431 F.3d 567, 572 (7th Cir.2005). The safety of children is paramount, but the risk of harm must “truly be grave.” Id. The mother must meet the demanding standard of clear and convincing evidence that a grave risk of harm exists. 42 U.S.C. § 11603(e)(2) (A). “Even if this

‘narrow’ exception applies, though, a federal court has ‘and should use when appropriate’ the discretion to return a child to his or her place of habitual residence ‘if return would further the aims of the Convention.” England v. England, 234 F.3d 268, 270-71 (5th Cir. 2000).

27. Parents accused of wrongful removal under the Hague Convention frequently argue that returning the child to its habitual residence will result in psychological harm. Separating a

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child from either parent is less than ideal and may have psychological and emotional effects on the child. Nevertheless, this outcome was certainly anticipated by the drafters of the Hague

Convention and ICARA, which both err on the side of returning the child to its habitual residence.

Indeed, the return remedy is not permissive unless an exception applies. Sealed Appellant, 394

F.3d at 344 (“’…shall order the return of the child forthwith’.”) (quoting Convention art. 12).

The courts must apply the “grave risk” exception narrowly, otherwise, the fact that separating a child from a parent results in emotional distress unfairly tips the scales of justice towards the abductor, the exact opposite of the articulated purpose of the Hague Convention and ICARA.

Further, giving the emotional and psychological impact of return on the child disproportionate weight in this hearing would deprive the habitual residence, Luxembourg, the ability to address the best interests of its young citizen during a custody proceeding under that country’s laws.

28. The Fifth Circuit addressed this issue in England v. England, 234 F.3d 268, 270-71

(5th Cir. 2000), where it reversed the district court’s finding of “grave danger” of psychological harm. In doing so, the Fifth Circuit observed: “Courts considering this issue have uniformly found considerations such as those articulated by the District Court inapposite to the “grave risk” determination.” England at 271. The Fifth Circuit specifically cited cases from the First, Sixth, and Eighth Circuits, all of which rejected a determination that risk of psychological injury caused by the return of a child warranted retaining the child with its abductor. Id. (citing Walsh v.

Walsh, 221 F.3d 204, 220 n. 14 (1st Cir. 2000) (“We disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States. That is an inevitable consequence of removal”); Friedrich v.

Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996) (“Mrs. Friedrich alleges that she proved by clear and convincing evidence in the proceedings below that the return of Thomas to Germany would cause

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him grave psychological harm. Mrs. Friedrich testified that Thomas has grown attached to family and friends in Ohio. She also hired an expert psychologist who testified that returning Thomas to

Germany would be traumatic and difficult for the child, who was currently happy and healthy in

America with his mother.... If we are to take the international obligations of American courts with any degree of seriousness, the exception to the Hague Convention for grave harm to the child requires far more evidence than Mrs. Friedrich provides. Mrs. Friedrich alleges nothing more than adjustment problems that would attend the relocation of most children”); Nunez-Escudero v.

Tice-Menley, 58 F.3d 374, 376 (8th Cir.1995) (“The district court incorrectly factored the possible separation of the child from his mother in assessing whether the return of the child to Mexico constitutes a grave risk that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation”)).

29. It appears that Bekmukhamedova’s psychological harm argument is similar to the maternal preference once argued in Louisiana domestic cases. That argument has been foreclosed for decades. Ferry v. Ferry, 433 So.2d 359, 360 (La.App. 3 Cir. 1983) (“The maternal preference rule and any presumption thereunder has been abrogated…. The father and the mother stand on equal footing at the outset and the role of the court is to determine the best interest of the child based on the relative fitness and ability of the competing parents in all respects to care for the child.”); Dubois v. Dubois, 532 So.2d 360 La.App. 3 Cir. 1988) (accord).

30. Bekmukhamedova has not proven that a grave risk exists. While the Luxembourg custody order is on appeal, the Court notes that the order gave Bekmukhamedova visitation rights.

Bekmukhamedova’s liberal exercise of those rights (which the Court encourages) reduces the likelihood of any psychological or emotional trauma on VPZB. The risk is also reduced by Biel’s stated intent to obtain such counseling and therapy as may assist his son’s readjustment to living in

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his native Luxembourg. The evidence supports a finding that Biel maintained a close, nurturing relationship with his son during the 10 months that he was in Luxembourg. Biel actively maintained this relationship, as best he could, despite his son’s abduction to the United States.

Thus, this is not a case of the child being returned to someone who is a relative stranger, nor is there any suggestion that Biel has or will engage in affirmative acts of psychological abuse.

31. Even if Bekmukhamedova had proven that the “grave risk” exception applied, which she has not, VPZB should not be retained in the United States. To the extent that there is any risk to the child, the responsible actions of both parents will reduce both the risk and the harm.

Nothing prevents Bekmukhamedova from returning to Luxembourg with the child, or spending a significant portion of the year in Luxembourg. Furthermore, the courts of Luxembourg are certainly capable of determining the proper course of action through their custody proceedings.

Both parents have retained Luxembourg counsel and attended the Luxembourg custody proceeding. Bekmukhamedova’s appeal of the resulting Luxembourg court order is evidence that she can effectively access and participate in that system. To hold that the Luxembourg courts could not effectively act in the best interests of this Luxembourg citizen would undermine the very international comity sought by the Hague Convention and ICARA.

32. There is no reason why Luxembourg should not be permitted to have its courts and its laws apply to this citizen and habitual resident of Luxembourg. Other federal courts have found Luxembourg to be an adequate forum in cases where the more rigorous forum non conveniens analysis is applied. In re Herald, Primeo, and Thema Securities Litigation, 2011 WL

5928952 *13 (S.D.N.Y. November 29, 2011) (“Ireland and Luxembourg are unequivocally adequate fora for these cases.”) Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119

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F.3d 935, 951–52 (11th Cir.1997) (“[P]roceedings underway in ... Luxembourg are adequate alternative fora.”).

Relief

33. Congress does not mince words when it comes to international child abduction:

“The international abduction or wrongful retention of children is harmful to their well-being.

Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention.” 42 U.S.C. § 11601(a)(1 & 2). Thus, in The International Child Abduction

Remedies Act (“ICARA”), implementing The Convention on the Civil Aspects of International

Child Abduction (“Hague Convention”), Congress sought to ensure quick and decisive action in cases of international abduction. The purpose of these laws is the “prompt return of children who have been wrongfully removed or retained.” 42 U.S.C. § 11601(a)(4). As the Fifth Circuit has acknowledged “…the Convention dictates: when a child has been wrongfully removed from his country of habitual residence, the ‘judicial or administrative authority of the Contracting States where the child is … shall order the return of the child forthwith”. Sealed Appellant, 394 F.3d at

344 (quoting Convention art. 12). Accordingly, VPZB is to be returned to his father in

Luxembourg immediately.

34. Where, as here, a court has ordered the return of the child to his habitual residence, the court must order the respondent-abductor to pay “necessary expenses incurred by or on behalf of the petitioner,” unless to so order would be “clearly inappropriate.” Saldivar v. Rodela, 894

F.Supp.2d 916, 923 (W.D.Tex. 2012) (citing 42 U.S.C. § 11607(b)(3) and Sealed Appellant v.

Sealed Appellee, 394 F.3d 338, 346 (5th Cir.2004)).

35. As explained by another district court in the Fifth Circuit, in enacting ICARA and making the reimbursement provisions mandatory, Congress sought to enforce a policy of placing

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the burden of child abduction squarely on the abductor for both equitable reasons, and to discourage wrongful conduct. Saldivar v. Rodela, 894 F.Supp.2d, 225-26:

The third and final paragraph of § 11607(b) is the fee-shifting provision of ICARA. It “reflects” a cognate provision in the Convention: the last paragraph of Article 26. H.R. Rep. 100–525 (1988) (House Judiciary Committee Report on ICARA), reprinted in 1988 U.S.C.C.A.N. 386, 395. These two fee-shifting provisions are nearly identical, with one big difference: ICARA makes a fee award mandatory, whereas Article 26 makes it discretionary. See Sealed Appellant, 394 F.3d at 346 (comparing Article 26 and § 11607(b)(3) and noting “ICARA more strongly states the court ‘ shall order the [removing parent] to pay necessary expenses ....’ ” (emphasis and alterations in original) (quoting § 11607(b)(3))). Section 11607(b)(3), like its counterpart in Article 26, was intended not only to compensate the bearers of the expenses incurred due to the respondent's wrongful conduct, but also to provide “an additional deterrent to wrongful international child removals and retentions.” H.R. Rep. 100–525, supra. See also Convention Analysis 51 Fed.Reg. 10494, 10511 (“The purposes underlying Article 26 are to restore the applicant to the financial position he or she would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place.”).

Considering the clear language of ICARA, and the intent of Congress to place the cost of abduction on the abductor, Biel is entitled to recover $100,000.00 in expenses, costs, and legal fees related to his son’s abduction to the United States from Bekmukhamedova.

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Respectfully submitted,

VALTEAU, HARRIS, KOENIG & MAYER

s/ Paul R. Valteau, Jr. PAUL R. VALTEAU, JR. (#13005) 1010 Common Street, Suite 2700 New Orleans, Louisiana 70112 Telephone: (504) 524-2291 Facsimile: (504) 524-2296

PHELPS DUNBAR LLP

s/ Raymond T. Waid RAYMOND T. WAID (#31351) 365 Canal Street • 2000 Canal Place New Orleans, Louisiana 70130-6534 Telephone: (504) 566-1311 Telecopier: (504) 568-9130 [email protected]

ATTORNEYS FOR PETITIONER PIERRE BIEL

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 4th day of September, 2013, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel who are CM/ECF participants.

s/Raymond T. Waid Raymond T. Waid

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