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Thursday, July 19, 2012

Velasquez v Green, 2012 WL 2885662 (E.D.Tex.)) [Canada] [Well-Settled in New Environment] [Age and Maturity]

          In Velasquez v Green, 2012 WL 2885662 (E.D.Tex.)) on February 8, 2012, Petitioner Beatriz Velasquez filed an action seeking the return of her daughter ("JCVG"), to Canada.

            JCVG was born in Canada on March 1, 2000. Petitioner and Respondent were never married, and there was no formal custody agreement in place. Petitioner alleged that from her birth until late 2010, JCVG resided with her mother in Canada, with her father, Respondent, visiting her occasionally. In late 2010, with the apparent consent of her mother, JCVG traveled from Canada to Texas to visit her father for the holidays. According to Petitioner, the understanding between the parties was that JCVG would return to Canada at the start of 2011. Respondent claimed that the parties never agreed to a temporary stay in Texas but that the plan was for JCVG to come to live with him indefinitely. In any event, JCVG remained in Texas since late 2010 and did not return to Canada. Several months after JCVG came to Texas, Respondent commenced custody proceedings in Texas state court, seeking custody of his child.

           At the hearing held on June 6, 2012, the Court heard testimony and Petitioner a submitted documentary evidence including, JCVG's Canadian birth certificate, JCVG's Canadian social security and insurance cards, JCVG's Canadian medical and school records, a Tenancy Agreement for Petitioner in Canada, and Facebook communications between Petitioner and Respondent and Petitioner and her daughter. Petitioner also introduced a copy of the Denton County Petition for Conservatorship of JCVG filed by Respondent and asked that the Court take judicial notice of a Canadian statute regarding custody. By agreement of the parties, the Court questioned JCVG in the courtroom outside the presence of her parents or any witnesses. Counsel for both sides were present but were not permitted to question the witness.

           Petitioner testified that she lived in Canada since 1990 and had been a Canadian citizen since 1995. She had a job as a flower designer and was in school for real estate. According to Petitioner, she and Respondent met in 1998 but never lived together and were never married. Their child, JCVG, was born in March of 2000 in Canada, had a Canadian social security number, and was a Canadian citizen. Petitioner testified that she regularly took JCVG to the doctor in Canada, that JCVG received all required vaccinations, and that JCVG was enrolled in school in Canada and involved in after school programs there. Petitioner testified that Respondent would see his daughter a few times a month or over a weekend and sometimes take her to his home in Buffalo and then return her to Canada. According to Petitioner, with the exception of an extended visit to Texas in the summer of 2010, those visits were never longer than a weekend. Petitioner testified that she agreed to allow JCVG to visit her father in Texas for the 2010 winter holiday but expected Respondent to return JCVG to Canada at the end of January 2011. According to Petitioner, it was not until October 2011, when she was served with court papers from Texas seeking custody of JCVG, that she realized that Respondent planned on keeping JCVG in Texas. She subsequently testified that JCVG went to Texas in "December 2009 or 2010 or somewhere around there."Despite Petitioner's confusion, her pleadings, as well as other witnesses' testimony, indicated that the removal/retention at issue involved a winter 2010 trip to Texas.

            Respondent testified that he was present at JCVG's birth and that he would see his daughter almost daily from 2000 until 2003. After that, he would visit her approximately two weekends out of the month. After moving to Texas in 2007, Respondent testified, he would visit JCVG a few times a year and made regular phone calls to her. Respondent claimed that Petitioner surrendered custody to him in Buffalo in November 2010. According to Respondent, due to ongoing health and legal issues with Petitioner and difficulties she was facing with JCVG's behavior, he and Petitioner arranged for JCVG to live with him in Texas in November 2010. Respondent conceded that they never determined how long JCVG would live with him but stated that the intention of the trip was more than just a holiday visit. Respondent testified that he and Petitioner decided that his mother would meet Petitioner and JCVG in Buffalo and then his mother would return with JCVG to Texas on November 22, 2010. According to Respondent, JCVG spent Thanksgiving 2010 with him in McKinney, Texas. Respondent also testified that he enrolled JCVG in McKinney schools in November 2010. Respondent stated that this was why he had requested her school and shot records from Petitioner. According to Respondent, JCVG started school in Texas on December 8, 2010, had only missed three days of classes since being in Texas schools, received B’s in her classes, and participated in sports since moving there. Respondent testified that Petitioner only called her daughter 11 times since the move to Texas and he had not changed his phone number since moving there. According to Respondent, JCVG talked to her mom frequently on Facebook and Respondent never restricted any calls from Petitioner. Respondent testified that Petitioner did not ask for him to return JCVG until September 2011.

        There was no question here that, prior to November 2010, JCVG was a habitual resident of Canada. As shown by Petitioner, and not disputed by Respondent, she was born there, received medical care there, and was schooled there.

           It was undisputed that there was no formal custody agreement in place as to JCVG when she left Canada in 2010. The court observed that when no formal custody agreement exists between the parents, courts must apply the laws of the country of the child's habitual residence to determine if the non-removing parent had "rights of custody" within the meaning of the Convention. Sealed v. Sealed, 394 F.3d 338, 343 (5th Cir.2004). Petitioner cited to Ontario law, R.S.O.1990, Chapter C.12(20)(4), which provides "[w]here the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody ... is suspended until a separation agreement or order otherwise provides." The Court found that Petitioner established that she had ne exeat rights as to JCVG when she left for Texas in November 2010.

            The court found that the evidence supported Respondent's claim that-at the time JCVG left Canada, the plan was for her to remain in Texas indefinitely. The Court was not convinced that Petitioner had shown by a preponderance of the evidence that JCVG was wrongfully retained in Texas. Nor was the Court convinced that Respondent had shown by of preponderance of the evidence Petitioner's consistent attitude of acquiescence over a significant period of time. Because there was significant dispute as to whether Petitioner consented to have JCVG live in Texas and because some of Petitioner's testimony lacked credibility and was inconsistent with both her pleadings and the testimony of other witnesses, the Court was hesitant to find that Petitioner sustained her burden in showing wrongful retention. The Court held that it need not make a determination as to wrongful retention to find that JCVG need not be returned to Canada until a further custody order is issued as the Court found exceptions to return applied.

           The Court pointed out that Article 12 of the Convention is very clear that the Court looks to the date on which these proceedings were commenced in applying the one-year limitations period. see, e.g.,Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1152 (E.D.Wash.2007). This case was filed on February 8, 2012. JCVG was removed from Canada in November 2010. Petitioner asked the Court to look to the filing of the Denton County petition for conservatorship to determine when JCVG was wrongfully retained. Petitioner testified that she was served with the state court action in October 2011 and claimed that it was not until this date, almost a year after JCVG went to Texas for the holidays, that she realized that Respondent would not be returning her daughter to Canada. Thus, Petitioner argued, this was the date that triggered the running of the one-year limitations proceedings. The Court disagreed .The Court found that the proceedings were not commenced within a year of any wrongful retention, which occurred, if at all, sometime in January 2011, based on Petitioner's position at the time suit was filed.

            Because more than a year had elapsed, the Court then looked to whether JCVG was well-settled. It noted that Courts determining whether a child is well-settled can look to the following factors: (1) the age of the child; (2) the stability and duration of the child's new residence; (3) whether the child attends school or daycare consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; (6) whether the child attends church regularly; and (7) the father's employment and financial stability. Edoho v. Edoho, 2010 WL 3257480, 6 (S.D.Tex.2010); Van Driessche v. Ohio-Esezeoboh, 466 F.Supp.2d 828, 847 (S.D.Tex.2006). "[F]or the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child." Van Driessche, 466 F.Supp.2d at 848.

            Having considered the testimony presented, the Court found that JCVG was well-settled in the United States. Since coming to Texas, she has been enrolled in-and regularly attended-school. She testified to having friends and appeared to be a well-adjusted pre-teen girl. She lived her father, her brother, and her paternal grandmother. She testified that she had a close relationship with her grandmother (an individual who appeared to be active in JCVG's daily life) and had a good relationship with her father. Moreover, her father was employed and appeared financially stable. More than one year had elapsed since JCVG came to, and remained in, Texas, and she was well-settled here. Thus, the exception set forth in Article 12 of the Hague Convention applied and return was not appropriate.

            The Court also found that JCVG's desire to remain in Texas should be taken into account. The Hague Convention permits the Court to refuse to return a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views. Art. 13. It is not enough that the child has maintained friendships, prefers her new residence over the country of removal, or enjoys a more stabilized situation to support a finding that the child is mature enough for the Court to take into account her views. England v. England, 234 F.3d 268, 272 (5th Cir.2000). No age is too young or old enough as a matter of law for the exception to apply, but must be determined on a case-by-case basis. When questioning JCVG, it was clear to the Court that she was sufficiently mature such that her wishes should be taken into account. She, unlike many seasoned counsel and adults who appear before the Court, listened to directions, heeded the Court's warnings regarding proper court conduct, and was a polite in her testimony. She behaved appropriately, was well-spoken, and even knew the precise name of her father's employer. She also testified that she preferred to remain in Texas in part because she was receiving a better education here. The Court found this statement exemplified her level of maturity and that her wishes were another basis to deny the request that she be returned to Canada.

            Because the Court found that even if there were wrongful retention, Respondent satisfied the well-settled and age and maturity exceptions outlined in the Hague Convention, the Magistrate found that Petition for Return of Child should be denied and this matter should be closed on the Court's docket.