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Thursday, October 20, 2016

Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016)[Guatemala] [Habitual Residence of Infant] [Petition granted]

          In Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016) the District Court granted the Petition of  Maria Alejandra Reyes Ovalle’s Petition for the return of E.L. to Guatemala with his mother. Petitioner was a successful Guatemalan entrepreneur who owned a home and auto mechanic shop in Mixco, Guatemala. Respondent was a divorced United States citizen originally from Guatemala, who owned businesses in the United States and a shop in Guatemala, which was managed by Petitioner’s mother’s half-sister. He was a resident of Hollywood, Florida. In March, 2015, Respondent traveled to Guatemala for eight days to accompany Petitioner to her friend’s wedding. Petitioner became pregnant during this trip. In June, 2015 Petitioner traveled to the United States to visit with Respondent and returned to Guatemala on July 9, 2015.  In mid-September, Petitioner was seven months pregnant. Petitioner decided to return to Florida to attempt to make the relationship work. Petitioner agreed to give birth in Florida. Petitioner travelled back to Florida on October 4, 2015, and  accepted an engagement ring but never wore the ring. Petitioner who was in the United States on her tourist visa remained in Florida until the end of February, 2016. Petitioner did not close any of her bank accounts in Guatemala, construction continued on her investment property, and she continued to earn income from her business there, with her mother’s assistance in running the daily operations. The parties’ son, E.L., was born on December 17, 2015. Respondent and Petitioner returned to Guatemala on February 26, 2016. On March 1, 2016, Petitioner obtained “Security Measures,” the equivalent of a restraining order, to prevent Respondent from removing E.L. from Guatemala but did not inform Respondent of the Security Measures, even though she told him, that she would not be returning to the United States because she was afraid of losing her son. Petitioner stayed in Guatemala with E.L. and Respondent returned to the United States on March 4, 2016. On March 6, 2016, before he learned of the existence of the Security Measures, Respondent initiated custody proceedings in Florida, and obtained an Order to Pick-Up Minor Child (the “Pick-Up Order”). Respondent, did not tell Petitioner that he had initiated proceedings, or that he had obtained the Pick-up Order. Respondent filed a response in opposition to the Security Measures on March 11, 2016. Between March and July, 2016, E.L. lived with the Petitioner and her parents. Respondent periodically sent money to Guatemala for the baby upon Petitioner’s request. Respondent traveled three times to Guatemala, from April 1-3, May 6-8, and May 29-June 1. During these visits, Respondent visited Petitioner and E.L. at Petitioner’s parents’ house. Respondent did not inform Petitioner about the Pick-Up Order or the scheduled hearing in Florida. Nor did the Respondent seek relief from the Guatemalan Court despite the filing of his response to the Security Measures.  Respondent arrived in Guatemala on July 15, 2016 for the childs baptism. The following day, Respondent asked Petitioner to accompany him to drop off an invitation to the baptism. Petitioner, Respondent, and E.L. travelled together in her car to deliver the invitation. At the time, E.L. was asleep in Respondent’s arms. Rather than wake him, Respondent asked Petitioner to take the invitation to the front door. When she did, he got out of the car, placed E.L. in his car seat, and drove off, leaving Petitioner behind. He then traveled by bus with E.L. through Mexico. Five days later, when Respondent and E.L. arrived in the United States, Respondent advised Petitioner that E.L. was with him and that the baby was fine.

The district court observed that to determine habitual residence in the case of an infant,, the Court looks at the parents’ shared intent or settled purpose regarding their child’s residence. Where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem. Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). However, where there is no marital home and an unsettled relationship between the parents, as in this case, the determination of a settled intent becomes more problematic. Furthermore, where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence.  The Court noted that the facts were similar to those in Delvoye, supra, and after examining the facts decided that there was no shared intent to reside in either Florida or Guatemala. 
The district court  concluded that E.L. became habitually resident in Guatemala prior to the time of his removal by Respondent to the United States finding Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) to be instructive. It observed that upon Petitioner’s informing Respondent that she and E.L. would remain in Guatemala, Respondent voluntarily returned to the United States on his planned departure date. Even though Respondent immediately filed a custody proceeding upon his return to the United States, the Court, like the Seventh Circuit in Kijowska, found his efforts were of little relevance. If Respondent believed that Petitioner’s decision to keep E.L. in Guatemala was wrongful, the proper legal remedy was to file his own petition under the Convention, which he did not do. Instead, he returned to the United States and engaged in exactly the type of behavior the Convention is designed to prevent, by filing a custody proceeding in a jurisdiction where he admittedly knew the law would be more favorable to him. The court indicated that the  failure to file a Convention petition in and of itself may have been sufficient to have enabled E.L. to establish habitual residence in Guatemala. Further factors weigh in favor of the Court’s determination. Petitioner and Respondent continued to communicate between March and July of 2016, and upon Petitioner’s request, Respondent continued to send money to Guatemala for the baby multiple times. During these communications, Respondent expressed that he missed his son and Petitioner, how much he loved them both and his belief that their relationship could work, and entreated her to return; at the same time that Petitioner made it clear that she did not share the same feelings. Even so, Respondent returned to Guatemala three times between March and July, visiting with E.L. and Petitioner each time. At no time, during any of these visits did Respondent inform Petitioner that he had sought relief from the Florida court regarding custody or that he was attempting to enforce any rights Respondent believed he had been granted by a Florida court. During this period, Respondent was aware that E.L. was living in the same house with Petitioner, his grandparents and uncle, with whom he was bonding. Petitioner was still breastfeeding the child, the child was regularly seen by a pediatrician and attended church with Petitioner and her family. Respondent also did not resist or oppose Petitioner’s plans to baptize E.L. in Guatemala. By the time Respondent abducted E.L. in July, the baby had been living for four months in Guatemala with Petitioner and her family. The Court found hat E.L. did not have a habitual residence until one was established with Petitioner in Guatemala. 

Monday, October 10, 2016

Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016) [Mexico] [Federal & State Judicial Remedies] [Enforcement of Judgment for Return]

            In Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016)  on April 15, 2016, the Chief District Judge granted the Plaintiff’s Petition for Return of his Child to Mexico. In the Memorandum  the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the child’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the child’s return to Mexico, and the issue was referred a Magistrate who, after  a telephonic hearing, orally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. The Petitioner filed an emergency Petition alleging the Respondent did not comply with the order. He requested, inter alia, that a Warrant of Arrest issue to bring the child and the Respondent into Court and that the Court order the child to be delivered immediately to the Petitioner in the United States so that the child may be transported to La Luz, Michoacan, Mexico. After a hearing the Court certified the following factual findings:  On April 15, 2016, the Chief District Judge ordered the Respondent to return the child to Mexico, the country of the child’s habitual residence. Subsequently, on May 2, 2016, the undersigned verbally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. Since the trial in this matter, the Petitioner maintained regular contact with the child using the Respondent’s cellular telephone. However, on May 2, 2016, when the Respondent attempted to contact the child, the cellular telephone would not ring. On May 16, 2016, the date the child was to be returned to La Luz, Mexico, the Petitioner visited Respondent’s grandparents, where Respondent previously lived, but the child and the Respondent were not there. The Petitioner made approximately four or five trips to La Luz, Mexico but has been able to locate the child. 

         The Court found that the Respondent failed to comply with the  Order, which ordered the Respondent to return the child to La Luz, Mexico, by May 16, 2016. The Court found no reason to reopen the case for the issuance of provisional remedies requested in the Emergency Petition because federal procedural and state substantive laws supported Petitioner’s requested relief.  Instead it found that the Respondent had violated the Chief District Judge’s Order and its Order and Recommended that the Chief District Judge issue a show cause order to Respondent to appear at a date certain before the District Judge to show cause why she should not be held in contempt for failing to obey the Court’s Orders. It also recommended pursuant to Federal Rules of Civil Procedure 70 that  “the Clerk of Court issue a writ of attachment to direct the United States Marshals Service to attach the child and deliver the child to the Tennessee Department of Human Services for temporary placement. The Tennessee Department of Human Services shall make the appropriate arrangements with the U.S. Central Authority for the child’s return to Mexico or to Petitioner. The Tennessee Department of Human Services shall coordinate with Petitioner’s counsel and the U.S. Central Authority to effectuate a smooth transfer of the child to Petitioner or to Mexico at an appropriate border station.” It also recommended that the child’s name be placed in the Children’s Passport Issuance Alert Program so that the Petitioner may be alerted if someone applies for the child’s passport.

Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016)[Bermuda] [Attorney’s Fees & Costs]

In Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016) Petitioner Joseph E. Best, Jr. sought attorney’s fees  and costs pursuant to 22 U.S.C. § 9001 (formerly 42 U.S.C. § 11601) and 22 U.S.C. § 9007(b)(3) (formerly 42 U.S.C. § 11607(b)(3)) after his petition for an order compelling the return of his minor children to Bermuda was granted. Respondent challenged the  motion on the grounds that the custody arrangement governing the children and her removal of them to Erie was still under review by the Supreme Court of Bermuda and therefore an order in favor of petitioner could prove to be prejudicial to her rights in that forum. Consequently, from her perspective awarding attorney’s fees and costs ‘would be clearly inappropriate‘ under 22 U.S.C. § 9007(b)(3). The district court held that this argument had no application to the motion and the court already granted petitioner relief under the Hague Convention. Therefore, respondent failed to show it ‘would be clearly inappropriate‘ to award necessary fees and expenses.

         The district court held that Respondent’s violation of the statute virtually triggers an award of reasonable attorney’s fees and costs under 22 U.S.C. § 9007(b)(3), unless respondent establishes that they ‘would be clearly inappropriate.‘ The lodestar approach is the appropriate method for this court to use in determining the amount of reasonable attorney’s fees that should be awarded to the prevailing party. Distler v. Dislter, 26 F. Supp.2d 723, 727 (D.N.J. 1998). Petitioner’s attorney sought $199.72 per hour. The court found this hourly rate to be reasonable. She documented 102.5 hours, which when multiplied by the reasonable hourly rate of $199.72 produced a total of $20,471.30. Respondent  failed to challenge petitioner’s request or provide specific reasons as to why an award of this amount would be unreasonable or ‘clearly inappropriate.‘ Accordingly, petitioner’s request for attorney’s fees was reasonable and was approved. Petitioner also sought reimbursement of $2,036.88 in airfare, hotel, and car rental costs. Under 22 U.S.C. § 9007(b)(3), petitioner is entitled to these costs as it was necessary for him (1) to fly to the United States, (2) stay 2 nights in order to attend the hearing, and (3) return with his children to Bermuda. Federal courts routinely have awarded transportation and lodging costs to attend court hearings. See, e.g., Paulus v. Cordero, 2013 U.S. Dist. LEXIS 20198 (M.D. Pa. 2013) (ordering reimbursement of $555.80 for airfare, $619.50 for bus fare, and $122.10 for lodging expenses); Distler, 26 F. Supp. 2d at 728 (awarding $2,422.00 for round trip flight and minor’s airfare for return to his habitual residence) (citing Freier v. Freier, 985 F. Supp. 710, 714 (E.D. Mich. 1997)). Petitioner  provided sufficient documentation regarding these expenses and respondent failed to present a persuasive argument suggesting that an award of actual airfare, lodging, and transportation costs would be ‘clearly inappropriate.‘ Accordingly, she was ordered to pay $2,036.88 for his reasonable and necessary costs.   Petitioner’s request for $1,407.26, which was charged to petitioner by counsel as actual out of pocket costs also was also approved as necessary costs. However, $250.00 requested for petitioner’s food and miscellaneous costs while in Erie on August 31, 2015, and September 1, 2015, was denied as he would have had to eat and incur similar sundry expenses even in the absence of the hearing.


Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) [Panama] [Well-settled] [Petition denied][ testify via video transmission][in camera interview]

In Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) the district court denied Petitioner Roque Jacinto Fernandez’s Petition for Return of his Children to Panama. Petitioner, a Panamanian citizen, and Respondent an American citizen working in Panama, were involved in a romantic relationship. Respondent gave birth to the couple’s twin sons, C.R.F.B. and R.J.F.B., on August 18, 2008. Although Respondent and Petitioner never married, Petitioner’s name was on the children’s birth certificates. In May of 2009, Respondent left Panama with the children and moved to Missouri without Petitioner’s consent. On May 13, 2010, Petitioner filed his first petition under the Hague Convention, seeking the return of the children to Panama. The District Court ordered that Respondent return the children to Panama in September of 2010. 2010 WL 3522134, at *3 (E.D. Mo. Sept. 1, 2010), modified, 2010 WL 5399220 (E.D. Mo. Dec. 23, 2010). As a result of a prior felony conviction he received while living in the United States as a juvenile, Petitioner was unable to obtain a visa and attend the 2010 hearing in person. Pursuant to the Missouri court’s order, Respondent returned to Panama with the children. In Panama, Petitioner initiated custody proceedings and criminal charges against Respondent for the previous removal of the children. Pursuant to the ongoing custody proceedings, Petitioner had visitation rights to visit with the children every other weekend. Because of the contentious relationship between the parents, the Panamanian court designated a local children’s police station as the drop-off and pick-up location for these visits. On February 2, 2014, Respondent and the children flew from Panama to Tampa, Florida. Petitioner was unaware that Respondent and the children had moved to Florida. Before learning that the children were in the United States, and in late January of 2015, the Panamanian immigration authorities informed Petitioner that the children had left Panama nearly a year earlier on February 2, 2014. Petitioner then filed a Hague Convention application in late February of 2015. The United States Department of State provided information regarding the location of the children to Petitioner, eventually disclosing the children’s current location in Tampa, Florida. On August 24, 2016, Petitioner filed his Verified Petition for Return of Children to Panama 

        The district court found that the petitioner established a prima facie case for return, and found that respondent did not establish the grave risk of harm defense nor the wishes of the child defense. However,  it found that the children were wrongfully removed more than one year before the petition and that the children we is now settled in their new home. Hague Convention, art. 12. To fall under this exception, “the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016) It found that during their time in Florida, the children resided in two locations, both in the Tampa Bay area. Both residences were in  the same general area. The children  built relationships with Respondent’s family members since their arrival in the United States. Although the distance between the children and these relatives prevented daily interaction, the Court found that the children built a meaningful connection with their extended family while living in Florida. Since enrolling in their current school in Tampa in April of 2015, the children  attended consistently and earned all satisfactory or excellent marks on their report cards.  The elementary school gave the children awards for good behavior and citizenship. The children made friends and participated in extracurricular activities. While living in St. Petersburg, they played in a local t-ball league. Later, at the children’s request, Respondent registered them to play on a club soccer team, for which they travel with their teammates and play competitively. Last summer, Respondent enrolled the children in a Christian summer camp, where the children participated in adventurous activities like rock-climbing and archery. Respondent was an American citizen working in a well-paying job, which Respondent testified partially motivated her move from Panama to Florida. She had been steadily employed since her arrival and has sufficient financial resources to keep a live-in nanny to help with child-care. The Court found that Respondent had  a stable career and adequately provides for the children. The Court was not persuaded that Respondent used the concealment tactics alleged by Petitioner. Regardless, if they were used, the Court found  that these tactics had not prevented the children from forming a permanent and stable connection to their new environment. The children attended the same school for over a year, were enrolled in school and extracurricular activities in their own names, and had lived in only two homes in the Tampa Bay area since their arrival from Panama. The children were thriving in Florida. The Court believed that the children’s interest in settlement  outweighed the other interests that would be served by returning the children to Panama. The Court was deeply disturbed by Respondent’s actions. This was the second time Respondent has removed the children from Panama without Petitioner’s consent. Because Petitioner had been unable to secure a visa to attend the 2010 Hague Convention hearing because of his prior conviction, Respondent likely knew that Petitioner could not travel to the United States to search for the children or participate in person if future custody proceedings were initiated here. While preventing this type of forum-shopping by parents was a major motivation for the enactment of the Hague Convention, the interest in discouraging wrongful removals like that perpetrated by Respondent is not enforced at any cost under the Hague Convention. Lozano, 134 S. Ct. at 1235. The Court found that the children’s interest in settlement outweighed the other interests of the Hague convention because disruption of the stable and permanent connection the children established to their new home would be harmful.  The fact that Petitioner may have had a good reason to file his petition over a year after the children’s removal did not negate the harm that would come to the children if they were removed from their new environment. 

Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016)[Mexico][Habitual Residence][Petition granted][Grave Risk of Harm Not Established]

In Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016) Petitioner Jaimes and Respondent Nasly Ximena Riascos Tapasco (“Riascos”) met in Charlotte, North Carolina in 2006. They moved in together and on July 23, 2009, they had a child, K.J.R.  In 2011, one of their family arguments grew into a domestic dispute in which the police were called. Jaimes’s pleaded guilty to the charge.  Riascos was a Colombian national and Jaimes was a Mexican national. Although Riascos was in the United States on a visa, Jaimes was here illegally. AS  a result of his arrest for domestic violence he departed the country voluntarily, leaving open the possibility of returning to the United States legally in the future.  Riascos agreed to allow K.J.R. to return to Mexico with Jaimes and executed a notarized travel authorization to this end. The parties disagreed as to whether K.J.R.’s move to Mexico was intended to be temporary or permanent.  Riascos testified that she returned to Mexico in July 2014 because of Jaimes threats to keep the child from her  and to celebrate K.J.R.’s birthday.  Riascos alleged that although she did not tell Jaimes she was coming to Mexico for K.J.R.’s birthday, she did notify him once she arrived.. She testified that after her arrival she went to Jaimes’s home with his sister because she was afraid to go alone on account of his recent threats. When they arrived, Jaimes allegedly began verbally and physically assaulting Riascos in front of his sister and daughter, throwing K.J.R. onto the bed during the altercation. Riascos testified that it was only after enduring this abuse and hearing how unhappy her daughter was that she decided to leave Mexico with K.J.R. immediately..  According to Jaimes, he was not aware that Riascos was in Mexico on the eve of his daughter’s birthday and he never saw her. He testified that he slept alone at his home and early the next morning his sister called to tell him that K.J.R. was gone.. Jaimes immediately notified the authorities who began a search for the girl, but it was not until November that he received official confirmation that she was residing in Houston, Texas with Riascos. 
        The district court found that Jaimes and Riascos shared a mutual intent that the United States be K.J.R.’s habitual residence for the first three years of her life. They lived here together as a family with no intention of leaving until Jaimes was faced with immigration difficulties.  The question was whether the parties had shared intent for K.J.R. to abandon her habitual residence here and establish a new one in Mexico when she left the United States with her father in October 2012. The Court observed that whether the parties thought that Jaimes might one day return to the United States did not mean that the United States remained the child’s habitual residence. Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011)  Because parents will often disagree about what their shared intentions were, once litigation is underway, courts must take account of the parents’ actions as well as what they say. In such cases, context, rather than specific periods of time spent in a particular location, is the key to the concept of habitual residence. Berezowsky, 765 F.3d at 467. When parties argue that their intent was to eventually return rather than to establish a new residence, courts will look to the circumstances of the family’s move to assess parental intent. Acts of permanence such as selling cars, belongings, and homes, as well as the type of belongings brought to the new residence, often indicate the parties’ intention to make a permanent move. 

The record indicated that K.J.R. and Jaimes’s move to Mexico was not temporary. Jaimes signed over his tax refunds and bank accounts in America so that Riascos could access the funds after he left; he signed a voluntary immigration departure form, purchased one-way tickets to Mexico City, obtained a written release from Riascos to take the child, and departed with K.J.R. Soon after, he rented and established a home for the family.  Although she herself never fully moved to Mexico, up until six months before the abduction Riascos regularly visited K.J.R. and Jaimes for extended periods of time.. During those visits, the three of them lived together under a single roof as a family. K.J.R. never returned to America with her mother after any of her visits. K.J.R.’s bedroom in Mexico was full of all of her belongings, many of which Respondent brought to her there. Furthermore, after K.J.R.’s fourth birthday, Riascos took steps to purchase the property Jaimes and K.J.R. were living in as an investment because it had another apartment attached that the family could rent out. Most importantly, K.J.R. was also enrolled in school in Mexico, which was slated to begin over a year after her fourth birthday. This was sufficient contextual evidence that the parties had a shared intent that Mexico was to be K.J.R.’s habitual residence. The court also found that the record discredited Riascos’s claims that the agreement was for K.J.R. to return to the United States after her fourth birthday. The record suggested that the parents did in fact “jointly develop the intention” that K.J.R. was to abandon her habitual residence in the United States and establish a new habitual residence in Mexico. The district court found that Jaimes established that Mexico was the habitual residence of the child. It then found that under Mexican Law of patria postes Petitioner had rights of custody and that he was exercising those rights at the time of the removal, thus establishing a prima facie case. 
The district court rejected the Respondents grave risk of harm defense. It observed that under Article 13(b), spousal abuse is only relevant if it seriously endangers the child. Souratgar v. Lee, 720 F.3d 96, 103–04 (2d Cir. 2013). There was no evidence that K.J.R. was targeted or at risk during the 2011 domestic violence incident, or that she even observed it.  Riascos’s speculation and the parties’ conflicting testimony was insufficient to meet the high threshold for a grave harm defense.  It noted that the exceptions to return are prospective, not retrospective. Sanchez v. R.G.L., 761 F.3d 495, 509 (5th Cir. 2014). As a result, past acts of domestic abuse or drug activity in the home are insufficient to show grave risk of harm. When the child observed parental abuse in the past, if the parents’ current living situation makes it unlikely that the child will do so again, there is no grave risk of harm. The Court, inter alia,  also rejected the argument that K.J.R. would be in grave danger if she was returned because Jaimes lived in one of the highest crime areas of the city. Living conditions marked by poverty, sociopolitical unrest, or community violence are insufficient to show grave risk of harm or intolerable situation. 

Saturday, October 8, 2016

Didon v Castillo, --- F.3d ----, 2016 WL 5349733 (3rd Cir., 2016) [Dutch Sint Maarten and French Saint Martin] [Habitual Residence] {Petition denied]

  In Didon v Castillo, --- F.3d ----, 2016 WL 5349733 (3rd Cir., 2016) the father sought the return of his two children (A.D. and J.D.),  to the Caribbean island of Saint Martin, a 34-square-mile island comprised of two legally distinct, yet highly integrated, countries—French Saint Martin. The Hague Convention is recognized by French Saint Martin (through France), but is not recognized by Dutch Sint Maarten. 
       The family resided in an apartment in Dutch Sint Maarten for three  years before the children were retained in the United States. Throughout this period, although the family resided in Dutch Sint Maarten, it was “primarily oriented” to French Saint Martin “where Didon worked, and where the children attended school, went to doctor’s appointments, etc.  The family’s administrative affairs, such as the children’s insurance, were managed in French Saint Martin.   The district court observed: “The parties’ testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. ... [F]or most purposes of its residents’ daily life, the island is essentially undivided.”  It highlighted testimony about the family’s extensive contacts with both countries and concluded that “the record facts, in addition to the nature of the island itself, supported a finding that J.D. and A.D. were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin. The District Court bifurcated the remainder of its analysis. Because Dominguez retained A.D. from his habitual residence in violation of Didon’s custody rights under French law, the District Court concluded that A.D. was “wrongfully” retained under the Hague Convention and granted the petition as to A.D. With respect to J.D., the District Court began by observing that Didon did not have custody rights over J.D. through adoption because his purported “adoption” did not satisfy the requirements of French law to vest custody. Because Didon did not have custody rights over J.D. under French law at the time of retention, the District Court concluded that J.D. was not “wrongfully” retained under the Convention and denied the petition as to J.D.

The Third Circuit reversed. It pointed out that the extraordinary facts of this case required it to decide an issue of first impression: may a child have two “habitual residence” countries at the same time under the Hague Convention (“concurrent habitual residence”)?  It concluded that the text of the Convention does not permit concurrent habitual residence. Rather than referencing “a State” of habitual residence or “the States” of habitual residence, the Convention repeatedly refers to “the State” of habitual residence. Such language is not susceptible to any construction whereby a child may have more than one habitual residence country at a time. This textual conclusion finds support in the Convention’s Explanatory Report. It noted that in concluding that concurrent habitual residence is possible under the Convention, the District Court relied on an earlier Ninth Circuit decision—Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). In Mozes, the Ninth Circuit observed in dicta that, although “the view held by many courts” is that “a person can only have one habitual residence at a time under the Convention,” “[t]he exception would be the rare situation where someone consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each.”   After carefully reviewing Mozes, it was not clear to the Court whether the Ninth Circuit was endorsing concurrent habitual residence or alternating habitual residence in that case. To the extent that Mozes could be read to support concurrent habitual residence, it rejected that interpretation of the Hague Convention as inconsistent with the Convention’s unambiguous text, and remaining faithful to the text of the treaty, it held that a child may have only one habitual residence country at a time under the Hague Convention.
        The Third Circuit therefore looked to the ordinary meaning of the term “residence” and concluded that a child must have lived in a country (i.e., had a home)  before that country can be considered her habitual residence under the Hague Convention. It held that the children were habitual residents only of the country in which they “lived”—Dutch Sint Maarten. Because Dutch Sint Maarten does not recognize the Convention, the Convention did not apply to this case. The Third Circuit vacated the District Court’s judgments and dismissed the petition. Because the District Court granted the petition as to A.D., it instructed the District Court to order that A.D. be returned to the United States forthwith.

Delgado v Osuna, --- F.3d ----, 2016 WL 5076017 (5th Cir., 2016) [Venezuela] [Habitual Residence] [Standard of Review] [Petition denied]

  In Delgado v Osuna, --- F.3d ----, 2016 WL 5076017  (5th Cir., 2016) the Fifth Circuit affirmed the district courts denial of  Dr. Delgado’s petition for return of his seven-year-old and four-year-old sons (“J.A.L.O.” and “D.A.L.O.,” to Venezuela. The parties were citizens of Venezuela and the married biological parents of the children, who were born in Venezula,  lived together from 2008 until May 2014. when they moved with their mother to Frisco, Texas. During this time, Dr. Delgado practiced urology. Prior to traveling to the United States in May 2014, Dr. Delgado and Osuna frequently discussed the civil unrest and danger occurring in Venezuela, and they discussed relocating their family to another country. The discussions were motivated by fear for their family, especially the children, after the family was robbed in 2013 in a Venezuelan hotel room while they slept. Additionally, Osuna testified that her uncle and father, had been involved in a military coup to overthrow the Venezuelan government. As a result, she and other members of her family had been threatened by the government, and she believed that her children had also been threatened. Osuna testified that she believed her children were threatened on March 4, 2014, when she was asked to pass a message to her uncle and father to “stop messing with the government.” At the conclusion of the conversation, the men who threatened her said, “Okay, you have a beautiful blondies [children], then take care.”

       The family had previously planned to travel to the United States on May 14, 2014 so that Dr. Delgado could attend the annual Congress of Urology and the children could visit amusement parks. The family obtained six-month tourist visas for the visit. Originally, the family purchased four round-trip tickets arriving in Miami on May 14, 2014 and departing Miami to return to Venezuela on May 26, 2014. Following the March threat to Osuna, one-way tickets were also purchased (sometime between March and May 2014) for Osuna and both children to travel to Osuna’s sister’s home in Frisco, for an undetermined period of time. After the March 2014 threat, Osuna withdrew J.A.L.O. from school in Venezuela, and with Dr. Delgado’s knowledge and approval, she sent J.A.L.O.’s paperwork to the school in Frisco to prepare for his enrollment upon their arrival. The family packed as many belongings as they could fit inside eight suitcases (two per person), which was the maximum allowed by the airline before it charged a fee. Osuna brought all of her and her children’s important documents, including birth certificates, medical records, school records, and her marriage license. Osuna and Dr. Delgado also went to Osuna’s mother’s house to pick out jewelry to bring to the United States. Dr. Delgado also established a bank account in Frisco prior to the trip and deposited money into it.  On May 14, 2014, the family traveled to Miami, Florida. During this trip, Osuna and Dr. Delgado met with Maritza Cifuentes who assisted Osuna and the children with preparing their applications for political asylum in the United States. During the meeting, Dr. Delgado learned that in order to practice urology in the United States, he would have to undergo an additional fourteen years of medical school and/or training. Accordingly, Dr. Delgado decided not to pursue asylum in the United States. On May 25, 2014, Osuna and the children flew to Texas. Dr. Delgado returned to Venezuela one day later. Throughout the spring and summer of 2014, Osuna and the children resided in Frisco, and J.A.L.O. enrolled in school there. On July 9, 2014, Dr. Delgado signed a power of attorney giving Osuna the authority to make decisions regarding medical, educational, and other care for the children while in the United States. Both parties agreed that the power of attorney did not affect either parties’ custody rights. Yet, the parties’ testimony diverged concerning the reason for executing the power of attorney. Dr. Delgado testified that the power of attorney was intended to give Osuna the authority to make medical, educational, and other care-related decisions for the children while they were in the United States. Osuna testified that the power of attorney was executed so that she could pursue the asylum applications for the children. In the fall of 2014, Dr. Delgado packed and sent, through a family member, some winter clothes to Osuna and the children. Osuna testified that even as late as October 2014, Dr. Delgado was aware of the asylum applications and continued to support her in pursuing asylum. Dr. Delgado provided approximately $500 a month to Osuna and the children until December 2014, when he ceased making these payments. Dr. Delgado testified that he requested that Osuna and the children return home in September 2014 because the political situation in Venezuela was improving. She refused. Dr. Delgado testified that his relationship with his wife had deteriorated, and he filed for divorce in January 2015.

        The district court issued a written opinion finding that Dr. Delgado “failed to meet his burden to establish by a preponderance of the evidence that the habitual residence of the children was Venezuela, and, thus, failed to demonstrate that the children were wrongfully removed and/or retained in the United States.” 

         The Fifth Circuit observed that it  reviews factual findings for clear error and conclusions of law de novo.” A factual finding survives review so long as it is plausible in the light of the record as a whole. A district court’s determination of a child’s “habitual residence” is a mixed question of law and fact subject to de novo review.  The mixed standard of review means that the court accept[s] the district court’s historical or narrative facts unless they are clearly erroneous, but exercis [es] plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts. It rejected Dr. Delgado’s argument that “the district court ignored Fifth Circuit precedent and applied an erroneous legal standard in its determination of the Children’s habitual residence” and that the factual “record does not support the district court’s finding that the parties shared an intent to abandon Venezuela as the Children’s habitual residence.” It noted that the Convention does not define “habitual residence.” Larbie, 690 F.3d at 310. “The inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” This circuit has adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence....This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age. For example, parents’ intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. The threshold test is whether both parents intended for the child to abandon the habitual residence left behind.” Absent the parents’ shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,] ... most courts will find no change in habitual residence. ” 

  The Court noted that it  reviews a district court’s shared intent determination as a factual finding that is reviewed for clear error.” The district court found that the parties’ “last shared intent ... regarding their children’s future was that they would leave their habitual residence, Venezuela, and would not return.” The district court recognized that the parties’ shared intent eventually diverged but that after meeting with Cifuentes in the United States, the last shared intent was for Osuna and the children to seek political asylum in the United States and for Dr. Delgado to return to Venezuela to seek employment opportunities elsewhere. If Dr. Delgado was successful in finding employment outside of Venezuela, Osuna and the children would cancel their asylum applications and reunite with Dr. Delgado.

      The Fifth Circuit held that the district court did not clearly err in its shared intent determination. The record demonstrated that Osuna and Dr. Delgado’s last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. Once Osuna and Dr. Delgado formed this shared intent and the children subsequently left Venezuela with their most important documents in tow, Venezuela was abandoned as the children’s habitual residence. It held that Dr. Delgado’s argument—that the shared intent to abandon a child’s habitual residence requires “making a joint decision to raise the child in the new country” and that the new country must be agreed upon by the parents—was not the law in the fifth circuit. Berezowsky, 765 F.3d at 471. In affirming it found that the district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous.