Aguilar v. Millan

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kevin Federico Pichardo Aguilar,
Plaintiff,
v.
Aylin Xomara Bernal Millan,
Defendant.
No. CV-25-00509-PHX-SMB
ORDER
The Court now considers Plaintiff Kevin Federico Pichardo Aguilar’s Motion for
Attorneys’ Fees and Costs. (Doc. 57). For the following reasons, the Court grants in part
Plaintiff’s Motion.
I. BACKGROUND
This case involved an international custody dispute between Plaintiff (“Father”) and
Defendant Aylin Xomara Bernal Millan(“Mother”) over J.A.P.B., their minor child. (Doc.
46 at 1.) Father filed a Petition seeking to have J.A.P.B. returned to Mexico. (Doc. 1).
Following a bench trial, the Court granted Father’s Petition pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction (the “Convention”) and
the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq,
which implements the Convention. (Doc. 46 at 12.) The Court also ordered that “pursuant
to Article 26 of the Convention and 22 U.S.C. § 9007, Father shall submit his request for
reasonable attorneys’ fees and costs associated with this action.” (Id.) Father now moves
for attorneys’ fees and costs in the amount of $10,455.35. (Doc. 57 at 1.)
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II. LEGAL STANDARD
Article 26 of the Convention provides that, upon ordering the return of a child, the
Court “may, where appropriate, direct the person who removed or retained the child . . . to
pay necessary expenses incurred by or on behalf of the applicant.” Similarly, ICARA
provides that a court ordering the return of a child under the Convention “shall order the
respondent to pay necessary expenses incurred by or on behalf of the petitioner,
including . . . legal fees . . . unless the respondent establishes that such order would be
clearly inappropriate.” 22 U.S.C. § 9007(b)(3).
“While the Ninth Circuit has not defined the contours of the ‘clearly inappropriate’
exception, various Circuit Courts of Appeals have concluded that district courts hold broad
discretion and may consider equitable principles in assessing the appropriateness of a fee
award in ICARA cases.” Elkhaiat v. Mawashi, No. CV-24-02800-PHX-SPL, 2025 WL
3144177, at *2 (D. Ariz. July 17, 2025). Still, courts generally consider the following when
assessing whether an award of fees would be “clearly inappropriate: “the reasonableness
of the respondent’s basis for removing the children”; “the financial circumstances of the
respondent and whether an award of fees would interfere with the respondent’s ability to
care for the minor children”; and “whether the prevailing party has financially neglected
the children or been physical or mentally abusive.” Radu v. Shon, No.
CV-20-00246-TUC-RM, 2021 WL 1056393, at *2 (D. Ariz. Mar. 19, 2021). “Courts in
the District of Arizona have declined to award attorneys’ fees based on the limited financial
means of the respondent and the abuse and financial neglect of the petitioner.” Id. (citing
cases).
III. DISCUSSION
Mother contends that the requested fees are “clearly inappropriate” based almost
entirely on financial hardship.1 (Doc. 63 at 4.) While Mother does not substantively argue
that the requested fees are inappropriate on any other basis, the Court notes that this case
1 Mother argues that “Plaintiffs counsel pursued extensive filings and motion practice,
which substantially increased fees” and that “[s]ome billing entries reflect duplicative or
unnecessary work.” (Id. at 2.) Mother does not make any further arguments on this point
or point the Court to any particular examples of duplicative or unnecessary billing entries.
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lacks many of the indicia that typically make a fee award inappropriate. Here, Father saw
J.A.P.B “nearly every day,” provided J.A.P.B with significant financial support, and there
was no credible evidence suggesting that Father was abusive. (Doc. 46 at 7); Contra Radu,
2021 WL 1056393, at *3–4 (finding that fees were clearly inappropriate based on financial
neglect, abusive behavior, and the fact that the respondent was the child’s primary
caregiver).
The Court also notes that Father’s requested $10,455.35 in attorneys’ fees and costs
is relatively modest. Courts in this Circuit have been confronted with, and granted, far
greater requests in similar cases. See, e.g., Ciampa v. Nichols, No.
8:24-CV-02556-DOC-ADS, 2025 WL 1358488, at *4 (C.D. Cal. Apr. 3, 2025) (awarding
a petitioner over $160,000 in fees under § 9007(b)(3)); Efthymiou v. LaBonte, No.
22-CV-04694-VC, 2023 WL 3611362, at *4 (N.D. Cal. May 24, 2023) (awarding over
$85,000).
Although Father’s requested relief is relatively modest, the Court will exercise its
“broad discretion” and will award a reduced fee in light of Mother’s indigent status. See
LaSalle v. Adams, No. CV-19-04976-PHX-DWL, 2019 WL 6135127, at *11 (D. Ariz.
Nov. 19, 2019) (noting that § 9007(b)(3) creates a “duty to order the payment of necessary
expenses and legal fees,” subject to the district court’s broad discretion (citation
modified)). Mother contends that she has little in the way of financial resources; Father
does not contest this assertion. Mother avers that she makes approximately $1,500 a month
and pays approximately $1,400 a month in necessary expenses. (Doc. 63 at 5.) However,
Mother’s financial status does not make Father’s requested fees “clearly inappropriate”
under § 9007(b)(3). Accordingly, the Court will order Mother to pay Father $1,000.
IV. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED granting in part Plaintiff’s Motion for Attorney’s
Fees and Costs.
…
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IT IS FURTHER ORDERED that Defendant is directed to pay $1,000 to Father.
Dated this 29th day of January, 2026.
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