The parties are parents to one minor child. The Petitioner resided in Jamaica with the child, and the child visited the Respondent in New York each year. In 2020, the Respondent retained the child in New York at the end of a scheduled summer trip, arguing that COVID risks were greater in Jamaica. The Petitioner filed a petition to return the minor child on August 23, 2021 under the Hague Abduction Convention, and counsel entered its appearance, pro bono, on behalf of the Petitioner. On November 3, 2021, the parties entered a Voluntary Return Order to return the minor child to Jamaica. About two weeks later, the Petitioner filed a request for fees and costs. ICARA, the U.S. implementing legislation under the Hague Abduction Convention states that “[a]ny court ordering the return of a child… shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner… unless the respondent establishes that such an order would be clearly inappropriate.” Based on this, the Second Circuit has held that “a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.”
The district court first examined whether the Petitioner, in this situation of a voluntary return order, is the “prevailing” party. The court looked at the respective concessions made by each party in negotiating the agreement that returned their child to Jamaica. In comparing this case to another, it noted that the Respondent made a concession to return the child and designate Jamaica as the child’s home state. There were no allegations of wrongdoing by the Petitioner, and the Respondent got nothing from the return order (the issue of custody is left to the courts in Jamaica). Therefore, the court determined that the Petitioner was the prevailing party in this voluntary return situation.
The court then explored whether a fee award would be clearly inappropriate. In this case, the Petitioner did not engage in any type of domestic violence that would have explained the underlying reason for retaining the child. The underlying reason was, arguably, COVID-19, but the Respondent’s later failure to return the child a year after the retention became wrongful discredits the COVID argument. Finally, the pro se Respondent provided no information that indicated he is incapable or unable to pay a fee award. Therefore, a fee award is not clearly inappropriate.
The court, in assessing the fees to award uses the lodestar method. In this case, the court made note that surrounding districts generally approved of hourly rates no higher than $425/hour. The court also considered whether the firm was a large international law firm, versus a smaller law firm, when assessing the reasonableness of the hourly rates. In this case, there were five separate hourly rates, ranging from $600/hour to $250/hour. The court reduced the lead counsel’s $600/hour rate to $425/hour. It likewise reduced the other hourly rates accordingly. The petitioner then claimed that her lawyers spent 47.3 hours on the case, amounting to $18,830 in fees. In her fee request, she reduced this request for fees by 2/3 to a total of $12,553.33. Because this case was settled without a trial, and because the firm undertook this case pro bono, the court further reduced the fees to a total of $7,341.67, plus an additional $300 for a process server cost.