United States District Court, D. Massachusetts
TIMOTHY S. HILLMAN DISTRICT JUDGE
De Aguiar Dias (“Petitioner”) filed a petition
for return of child (Docket No. 1)(“Petition”)
seeking the return of her thirteen-year-old daughter, H.D.,
to Brazil pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction, opened for
signature Oct. 25, 1980, T.I.A.S. No. 11670
(“Convention”), as implemented by the
International Child Abduction Remedies Act
(“ICARA”), 22 U.S.C. §9001 et. seq.
(formerly 42 U.S.C. §11601). Petitioner claimed that
H.D.'s father, Leonardo Emmanuel Leoncio De Souza
(“Respondent”) had wrongfully retained H.D. in
the United States. After multiple hearings, I granted the
Petition on July 28, 2016, See Amended Mem. Of Dec.
and Order, dated August 1, 2016 (Docket No.
25)(“Prior Order”). Thereafter, Respondent, at
his expense, returned H.D. to the custody of Petitioner, in
Prior Order I also found that Petitioner had established the
prerequisite for an award of necessary expenses under the
fee-shifting provision of the ICARA, 22 U.S.C.
§9007(b)(3). I ordered Petitioner to file a motion
enumerating all “necessary” expenses incurred in
connection with the filing of the petition and the return of
H.D. to Brazil and gave the Respondent an opportunity file a
response addressing whether a fee award would be
“clearly inappropriate” in this case. This
Memorandum of Decision and Order addresses Petitioner's
Motion For Attorney's Fees Anant To 22 U.S.C.
§9007(b)(3) (Docket No. 26) pursuant to which Petitioner
requests an award of attorneys' fees in the amount of
$28, 697.50 and costs in the amount of $1, 004.20, for a
total award of $29, 701.70. For the reasons set forth below,
that motion is granted, but for an amount less than
requested by Petitioner.
prevailing party in her suit for seeking return of the minor
child, H.D, Petitioner is presumptively entitled to recover
her reasonable attorneys' fees and costs:
Any court ordering the return of a child pursuant to an
action brought under section 9003 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.
22 U.S.C. §9007(b)(3). The primary issues which the
Court must resolve in determining whether such an award is
appropriate is “first, whether the claimed expenses are
‘necessary, ' and second, whether an order against
respondent would be ‘clearly inappropriate.'”
De Souza v. Negri, No. 14-13788-DJC; 2015 WL 727934,
at *2 (D.Mass. February 19, 2015)(citation to quoted case and
alterations omitted). “The burden of proof to establish
necessity is upon the Petitioner.” Id.
(citation omitted). The burden to establish that a fee award
would be “clearly inappropriate” is upon the
To determine whether a fee award should be granted, the First
Circuit has interpreted ‘the statute as giving the
district court broad discretion in its effort to comply with
the Hague Convention consistently with our own laws and
standards.' The ‘clearly inappropriate'
standard is ‘highly fact specific and involves an
equitable balancing of several factors including financial
In particular, ‘the financial plight of the respondent
is an important factor to consider.' In addition, whether
‘the respondent had a reasonable basis for thinking at
the time of removing the [child] to the United States
… that [his] actions were consistent with [the law of
the country of habitual residence], that belief, even if
mistaken, is a relevant equitable factor when considering
whether a cost award is appropriate.
Notably, however, âthe fact that the respondent may already
owe substantial fees to his or her own attorney does not make
an award of the petitioner's attorney's fees âclearly
inappropriate.â Nor does the fact that the winning
petitioner's attorneys provided their services pro bono
make an award of fees against the respondent âclearly
De Souza, No. CIV.A. 14-13788-DJC, 2015 WL 727934,
at *2-3 (internal citations omitted).
an Award is ...