(CN) - The attorney for a Czech woman accused of bringing her child to the United States without the father’s consent asked the 11th Circuit Wednesday to overturn the judgment against her for attorney’s fees and litigation costs claiming both are “clearly inappropriate.”
In January 2018, the federal judge ordered Veronica Marcoski, a Czech immigrant residing in Florida, to return her son to the Czech Republic because she wrongfully removed him from the country and it was his "habitual place of residence."
The court also ordered Marcoski to pay the child’s father, Jan Rath, $89,490.26 for attorney’s fees, costs and expenses.
The child was returned to the Czech Republic in January 2017, and the Czech Court awarded custody to the father and weekly visits to the mother.
Marcoski appealed the district court’s decision to return the child to the Czech Republic, but she lost the appeal when the 11th Circuit affirmed the district court’s decision in February 2018.
The child, identified in court documents and during Wednesday's proceedings as L.N.R. was born in 2015 in Prague, Czech Republic, and he lived there until April 2016 when Marcoski brought him to the United States without telling Rath, who was away on a business trip.
According to the amended complaint, Marcoski and Rath, who were never married, separated shortly after L.N.R. was born, but Rath continued to exercise his parental and custody rights and he paid Marcoski child support.
Rath claims Marcoski failed to recognize the judgment entered by the Courts of the Czech Republic ordering her to return the child to his home country, and she also failed to follow the parental time-sharing arrangement mandated by the court.
But Marcoski alleged in court documents that Rath physically assaulted her on several occasions during her pregnancy, and that he and his family had a “history of corruptive and criminal behavior.”
She also said L.N.R., who has dual citizenship in the United States, would suffer physical or psychological harm if he’s returned to the Czech Republic.
Attorney Joseph Kenny of St. Petersburg, Fla., who represents Jan Rath, said that Marcoski never showed evidence of the alleged physical assault against her.
“Ms. Marcoski made some vague allegations in an effort to meet a legal exception to the return requirements under the International Child Abduction Act, but all those allegations were abandoned at trial,” Kenny said.
On Wednesday, Attorney Charles Auslander of Miami, Fla., asked the three-judge panel to reverse the fee portion of the judgment because the decision was made on a “bad faith” assumption and erroneous factual elements.
He claimed that the award of fees should be based under The International Child Abduction Remedies Act.
“The standard of law was not correctly decided by the district court,” Auslander said.
U.S. Circuit Judge Stanley Marcus was unconvinced, telling Auslander "You haven’t established that the fees are ‘clearly inappropriate’.”
Attorney Joseph Kenny of St. Petersburg, Fla., who argued on behalf of Jan Rath, said that once the court approves the removal of the child, there are different factors that influence the fees.
Kenny also argued that the entire case turned into whether the parties wanted to raise the child in Czech Republic, and that his client had no issues with paying for the support of the child.
Auslander countered by saying that Marcoski had valid reasons to remove her child from the Czech Republic because it was not his habitual residence, and that his client feared Rath.
“The court’s decision should be a review of the record as a whole,” said Auslander.
Judge Marcus replied that the judges had denied Marcoski’s testimony because there was a finding of bad faith. “The district court found that Rant was credible, and Marcoski was not,” he added.
The panel did not indicate when it will rule on the case.
Kenny said he did not know when the 11th Circuit will issue its opinion in this case, but said "given the circumstances" of the case, he did not expect the court to take a particularly long time before rendering its decision.
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