New York Matrimonial Trial Handbook
The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.
The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents
Monday, August 27, 2012
The District Court concluded that Mr. Holmes had not shown that Ireland was the child's habitual residence by a preponderance of the evidence and denied the petition. It observed that a child's habitual residence is the place where she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. Feder -Evans v Feder, 63 F.3d at 224. The child was only two-months-old when she was removed from Ireland. The child was still nursing. The couple's infant, two-month-old, child did not acquire a habitual residence in Ireland before her mother relocated her to the United States. See Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir.2003) (finding that a two-month-old infant, who is still nursing, has not been present long enough to have an acclimatization apart from his parents). Because the child was too young to have acclimated itself to its surroundings, the Court considered the intentions of the parents as factors in determining whether there was a habitual residence for the child. The evidence did not support a finding that Ireland was the intended long-term residence of the parents.
It was undisputed that the couple moved to Ireland to receive healthcare for the mother and child during birth. It was also undisputed that neither the mother or the father had a job in Ireland. They did not own a home in Ireland. They were renting a place to live, and the lease was to end in June. They essentially had no family support in Ireland because Mr. Holmes was estranged from his family. This was admitted by Mr. Holmes and also supported by his brother's testimony and Ms. Holmes' testimony. The couple did, however, receive financial support and emotional support from Ms. Holmes' family in the United States. The parties disagreed as to their intent to stay in Ireland long-term. Mr. Holmes maintained that they only agreed to move to Ireland temporarily and had planned on moving back to the United States. Ms. Holmes testified that they discussed moving back but the discussion was simply a possibility and not set in stone. Mr. Holmes' own testimony and Skype conversation transcript supports this notion-that the couple was not committed to staying in Ireland. Also supporting the claim that the move was not permanent was the fact that Mr. Holmes left behind tools in the United States that he used for his trade. If they intended on moving permanently, it did not seem likely that he would have left behind tools needed to make a living. The couple also completed a Petition for Alien Relative, I-130, from the U.S. Citizen and Immigration Services. Although it was never submitted, this application shows that the couple was not necessarily committed to staying in Ireland long-term. They had been in Ireland for less than a year and were already filling out paperwork to return to the United States. Ms. Holmes' assertion was supported by her own testimony, which the Court found to be credible. The evidence presented in the form of testimony and exhibits supported Ms. Holmes' assertion that the move to Ireland was temporary. Therefore, the Court found that the child did not have a habitual residence in Ireland.
In Thomson v Gnirk, 2012 WL 3598854 (D.N.H.) petitioner, Jessica Lorraine Thompson, claimed that the respondent, Chad Paul Gnirk, wrongfully retained custody of their 3-year old daughter, J.G. in New Hampshire and sought J.G.'s return to Canada. At the trial Thompson participated via videoconference from the office of her counsel in British Columbia, while her American counsel was present in the courtroom to conduct her case. The District Court found that that J.G. was habitually resident in the United States as of August 25, 2012, when Gnirk's allegedly wrongful retention of custody of her began, so that Thompson's petition for relief under the Hague Convention had to be denied.
The District Court found that when the parties met, Gnirk was 34 years old and had been living with a friend and intermittently working at a restaurant. Gnirk was separated from, but still married to his wife, who lived, together with their daughter, in British Columbia. Gnirk was always a United States citizen and never had any permanent legal status in Canada. In June 2007, Gnirk moved to Washington State to work at a car dealership, and Thompson accompanied him. They initially lived together in a house that Gnirk rented, and then lived elsewhere in the area, including with one of Gnirk's friends. Gnirk and Thompson lived together in Washington State until June 2008. In the spring of 2008, while living with Gnirk in Washington State, Thompson discovered that she was pregnant. In June 2008, Thompson and Gnirk returned to British Columbia, where they initially lived in a structure outside the house of Thompson's sister and brother-in-law. After a brief time there, Thompson and Gnirk moved to a basement apartment they rented in Brentwood Bay, British Columbia. Gnirk worked sporadically in a restaurant during this time. Gnirk also explored the possibility of obtaining Canadian citizenship, which he discovered would prove difficult without a steady job. Thompson testified that, in late August 2008, she and Gnirk were engaged to be married. On January 18, 2009, J.G. was born at a hospital in Victoria, British Columbia. She was later issued a British Columbia birth certificate, a Canadian social insurance card, and, in April 2010, with Gnirk's consent, a Canadian passport. Eventually, Thompson and Gnirk decided that he should return to northern New England, where he had grown up, and where members of his family lived, to try to secure employment. In October 2009, Gnirk moved to Berwick, Maine, where he initially lived at the home of his brother and his family while looking for work. Shortly after the move, Gnirk accepted a job as the finance manager at a car dealership in Portland, Maine, but the job did not open up as anticipated, so the dealership allowed him to seek other employment. Gnirk worked for a few weeks in December 2009 as the sales manager at another car dealership, in Lebanon, New Hampshire, and then began working for the dealership in Portland that had initially hired him. In early December 2009, while Gnirk was working at the dealership in Lebanon, Thompson and J.G. traveled to the United States, where they began staying with Gnirk. Gnirk testified that, as he and Thompson had discussed prior to his own move to Maine, she and J.G. joined him there in December 2009 "to start a new life, get a home, settle down."
In late April or early May 2011, the parties' romantic relationship ended. Nevertheless, Thompson and Gnirk (and J.G.) continued living together in New Hampshire until May 26, 2011, when, with Gnirk's consent, Thompson and J.G. traveled to British Columbia. They initially stayed at Thompson's parents' house there. Thompson and Gnirk talked frequently by telephone. Thompson asked Gnirk to send her money, which he did. Roughly one month later, on June 26, 2011, Thompson and Gnirk met in Seattle, where Gnirk took J.G. back to New Hampshire with him. After returning to New Hampshire with J.G., Gnirk hired a babysitter to care for J.G. while he was at work. Thompson frequently communicated with Gnirk by phone or text to see how J.G. was doing, and spoke to J.G. by phone as well. On July 29, 2011, in what appeared to be one of a series of text messages between the parties around that time, Thompson wrote, "All I'm saying is I miss her and I don't think we can go three months. I'm dying here. I'm sure she misses me too" . This suggested that, contrary to Thompson's testimony, the parties had not already agreed that J.G. would stay with Gnirk for only two months.
The court found that Thompson, Gnirk, and J .G. had lived together in the United States (first in Maine, and then in New Hampshire) from early December 2009 to late May 2011, a period interrupted only by two visits that Thompson and J.G. made to Canada to see Thompson's family, and, finally, when Thompson, a Canadian citizen and J.G. returned to Canada following the breakup of the parties' romantic relationship. The circumstances of the cohabitation strongly suggested the parties' "shared intent or settled purpose" that J.G. reside in the United States and, therefore, that her habitual residence was in the United States as of the alleged wrongful retention. Nicolson v. Pappalardo, 605 F.3d 100, 103-04 (1st Cir.2010).
After Gnirk notified Thompson that he would not be sending J.G. back to Canada, on August 25, 2011, she filed, through counsel, an ex parte application with the Supreme Court of British Columbia seeking an award of interim custody over J.G. On August 25, 2011, the British Columbia court issued an order awarding Thompson interim sole custody of J.G. and directing Gnirk to return her to Thompson's care. Gnirk learned of the order after Thompson faxed it to the Gorham New Hampshire Police Department and an officer brought a copy of it to Gnirk's. On August 26, 2011, Gnirk filed an ex parte motion with the Berlin Family Division of the First Circuit Court of New Hampshire, seeking to be temporarily awarded sole decision-making and residential responsibility over J.G. The court granted that relief the same day. On August 29, 2011, Thompson filed an application with the British Columbia authorities for relief under the Hague Convention. In the Berlin Family Division, she later filed a "Petition to Register a Foreign Judgment," namely, the ex parte order awarding her interim sole custody of J.G. The Family Division held a hearing on Gnirk's and Thompson's petitions in November 2011. Following the hearing, which both parties attended with counsel, the Family Division left its order granting temporary custody to Gnirk in place, dismissed Thompson's petition to register the British Columbia court's contrary order, and directed her to file a petition requesting Hague Convention relief with the Family Division if she wished to pursue it. In February 2011, the Family Division held another hearing, for the purposes of considering whether it had jurisdiction to determine custody of J.G. and, if so, what further custody orders should issue. Thompson attended the hearing with counsel, but only to contest the Family Division's jurisdiction; she refused to participate as to custody matters. On March 23, 2012, the Family Division ruled that it had jurisdiction to determine J.G.'s custody, and approved Gnirk's proposed temporary parenting plan. The British Columbia court later held a series of hearings on Thompson's petition in April and May 2012. Gnirk did not appear at any of them. On May 10, 2012, the British Columbia court awarded Thompson permanent sole custody and permanent sole guardianship of J.G. Thompson commenced this District Court action on June 12, 2012.
The District Court observed that courts "[m]ost commonly" conclude "that the family as a unit has manifested a settled purpose to change habitual residence ... when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country." Mozes v. Mozes, 239 F.3d 1067, 1076-77 (9th Cir.2001). The circumstances outlined strongly suggested, if not outright compel-that conclusion here. Indeed, Thompson and Gnirk " did what parents intent on making a new home for themselves and their child do," including finding stable employment and housing in the place where they moved. Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995); see also Koch v. Koch, 450 F.3d 703, 714 (7th Cir.2006) (upholding finding that children's habitual residence was Germany where "the entire family moved to Germany because that is where [the father] found work. They took all of their possessions except for a few large items and established a life in Germany
where [the father] worked and [the mother] cared for the children").
In addition to this strong circumstantial evidence that the parties intended for J.G. to reside in the United States, there was also direct evidence to that effect. Gnirk testified that he and Thompson had discussed in advance that, after he moved to Maine, she and J.G. would join him there "to start a new life, get a home, settle down."The court credited this testimony not only because it made sense in light of the parties' situation in Canada prior to the move and their actions in the United States afterwards, but also because Thompson had not come forward with any plausible theory of what else the parties could possibly have been planning. She claimed that the parties intended that she and J.G. remain in Canada and occasionally visit Gnirk in the United States until he could return to Canada, but it was not clear how that would have been possible in light of Gnirk's lack of job prospects or legal immigration status in Canada. Moreover, there was no credible evidence that the parties did anything to put such a plan into effect at any point after moving to the United States. To the contrary, nearly everything they did manifested their shared intentions that J.G. reside, together with her parents, in the United States.
The Court observed that perhaps Thompson never stopped subjectively thinking of British Columbia as her "home," or even her daughter's "home." Thompson grew up there, her parents, sister, and extended family lived there, and J.G. was born there. Perhaps she even subjectively thought of the time she and J.G. spent with Gnirk in the United States as "visits." Everything but Thompson's trial testimony suggested that she did not in fact see things that way, at least contemporaneously, but, as she acknowledged, her subjective feelings as to where J.G. was living carry little if any weight in the habitual residence analysis in any event.
The Court noted that the Court of Appeals has squarely rejected the notion that, "if [one parent] were credited with a fixed subjective intent to take her daughter permanently to [one country], then all other circumstances would be irrelevant" in deciding habitual residence, because " '[s]tanding alone, of course, [one parent's] intent that the child should one day live in [that country] cannot support a finding of habitual residence.' " Nicolson, 605 F.3d at 105 (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1253 n.4 (11th Cir.2004)). Instead, whether the parents have arrived at a settled intent as to the child's habitual residence "should be guided by an objective observer standard."
Based on the facts and circumstances any objective observer would have to conclude that, in early December 2009, Thompson and J.G. had moved to the United States to live with Gnirk, and continued living there with him until late May 2011, a situation that clearly reflected the parties' settled intent that J.G. reside in the United States with her family as a unit.
The parties never sought legal immigration status in the United States for either her or for J.G., both of whom were Canadian citizens. While some courts have treated this fact as tending to negate any shared intent for the child to reside in the country in question, see, e.g., Ruiz, 392 F.3d at 1256, none appears to have relied exclusively on the child's (let alone a parent's) lack of legal status in a country to reject it as the child's habitual residence, and that fact certainly could not bear such significance here. To the contrary, it was reasonable to infer that the parties never sought lawful permanent residency or citizenship in the United States for Thompson or J.G. because they were preoccupied with the day-to-day issues that preoccupy many young working families, such as employment, housing, and financial stability, and not because they never intended that J.G. should habitually reside in the United States.
Thompson also argued that, prior to the move to the United States in December 2009, J.G.'s habitual residence was Canada, so that the court can find that her habitual residence later became the United States only if the "objective facts point unequivocally to a new habitual residence." As support for this view of the law, Thompson relied on a statement from the Eleventh Circuit's decision in Ruiz, with which she claims the First Circuit has said, in Nicolson, it is "in accord." There were several problems with this argument.
First, Nicolson does not say that it is "in accord" with this aspect (or claimed aspect) of Ruiz. Instead, Nicolson states that "Ruiz accords with our own view that the law is less rigid than [the respondent in that case] assume[d] and that tests of habitual residence must be applied to the circumstances of the case." 605 F.3d at 105. It is difficult to read this statement as an endorsement of the very sort of rigid test that the court understood Thompson to propose, i.e., so long as a child was habitually resident in some other country at some prior point-irrespective, it would appear, of how long ago that was at the time of the alleged abduction or retention-a new habitual residence can be shown only by "unequivocal" evidence. Second, Ruiz did not stand for that proposition anyway. Ruiz says "that when there is no shared settled intent on the part of the parents to abandon the child's prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence." 392 F.3d at 1254 (discussing Mozes, 239 F.3d at 1081). The court found that the parties had the "shared settled intent" to abandon J.G.'s habitual residence in Canada and move her habitual residence to the United States, even assuming, without deciding, that the parties had previously formed a shared settled intent that J.G. reside in Canada, a point on which there was conflicting trial testimony and circumstantial evidence that is ambiguous at best. Ruiz, then, does not support Thompson's view that J.G.'s habitual residence was Canada, rather than the United States, at the time of Gnirk's alleged wrongful retention of her on August 25, 2011.
Prior to that point, of course, J.G. had briefly traveled to Canada with Thompson, following the dissolution of the parties' romantic and cohabitative relationship in late May 2011. But "the mere fact that conflict has developed between the parents does not ipso facto disestablish a child's habitual residence, once it has come into existence." Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir.2003). To show that Canada became J.G.'s new habitual residence following the parties' breakup in May 2011, Thompson would have to show by a preponderance of the either a "shared settled intent on the part of the parents to abandon the child's prior habitual residence" or that the "objective facts point unequivocally to a new habitual residence." Ruiz, 392 F.3d at 1254.
The court could not find, by a preponderance of the evidence, that, following the end of the parties' romantic relationship in May 2011, they ever shared any "settled intent" that J.G. reside in Canada going forward. The court found that the parties had not decided where J.G. would live in the future, either before Thompson and J.G. traveled to Canada on May 26, 2011, or before Thompson transferred J.G. to Gnirk on June 26, 2011.Nor could the court that J.G.'s habitual residence became Canada as of May 26, 2011. J.G. had spent only about a month there before returning to New Hampshire in late June 2011.
Deciding a child's habitual residence under the Hague Convention is usually a "task to determine the intentions of the parties as of the last time their intentions were shared." Gitter, 396 F.3d at 134. The parties did not share an intent to transfer J.G.'s habitual residence to Canada at any point after they had settled on an intent that she habitually reside in the United States. It followed that the last time the parties shared an intent that J.G. habitually reside in any country, it was the United States.
The Court found that, as of Gnirk's allegedly wrongful retention of J.G. on August 25, 2011, J.G. was habitually resident in the United States. It followed that Thompson has not carried her burden of proof for relief under Article 3 of the Hague Convention. In reaching this conclusion, the court repeatedly found that Thompson's testimony was not credible, both as to larger matters such as whether she was simply "visiting" the United States and as to more minute details. The court stressed that it did not view Thompson as an inherently untrustworthy person, or as a witness bent on misleading the trier of fact. Instead, the court suspected that Thompson, like many parties who testify on their own behalf-particularly those who bear the burden of proof-was struggling to square prior events, including her own behavior, with the necessary showing (in this case, that she and Gnirk never shared an intent for J.G. to reside anywhere but Canada).
In Fernandez v. Somaru, 2012 WL 3553779 (M.D.Fla.) petitioner Marcela Araya Fernandez filed a Verified Petition for Return of Child to Costa Rica on May 11, 2012. Petitioner and respondent were the unmarried parents of three year old daughter, I.S.A. Petitioner alleged that I .S.A. is being unlawfully retained in the Middle District of Florida by the child's father, Pramanan Somaru, Jr., who wrongfully prevented the child's return to her habitual residence of Costa Rica. Marcela Araya Fernandez (petitioner ) was born in Costa Rica, resided there virtually her whole life, and was a citizen of only Costa Rica. Araya's entire family lived in Costa Rica. Pramanan Somaru, Jr. (respondent was a naturalized United States citizen who for the past fifteen years considered his residence to be his parent's house in Cape Coral, Florida. Somaru possessed a United States passport and traveled extensively in the years relevant to this case. In 2007, Somaru started a call center business in Costa Rica. Other than this business, Somaru had no particular ties to Costa Rica. Somaru hired Araya as an employee of his call center business in San Jose, Costa Rica, and in approximately April, 2007, they became romantically involved. Somaru fired Araya as an employee after a couple of weeks, but they continued their personal relationship. Somaru and Araya lived together in Costa Rica from May, 2007 through late April, 2008, and the relationship proved to be volatile, with numerous arguments and break-ups followed by periods of reconciliation. Somaru continued to travel frequently, and there was numerous email communications between the two. The Costa Rica call center was not successful, and Somaru closed it in April or May, 2008. In May, 2008, Somaru returned to Cape Coral, Florida and rented a house. Araya followed him shortly thereafter on a tourist visa. The relationship remained volatile, and Araya returned to Costa Rica and broke up with Somaru. Araya then learned she was pregnant, so she informed Somaru and they tried to make their mostly long distance relationship work.
Araya remained in Costa Rica, and her daughter I .S.A. was born in Costa Rica on March 4, 2009. Somaru arrived in Costa Rica three days before, and was present for the birth of I.S.A. Somaru left Costa Rica shortly thereafter, but continued to financially support his daughter to the best of his ability. Somaru returned to Costa Rica for a week when I.S.A. was five or six months old. Petitioner was always the primary care-giver for I.S.A., who remained in Costa Rica. Petitioner and respondent (collectively the parents) were often separated during the following two years, with Araya residing in Costa Rica with I.S.A. and Somaru living between Florida and Costa Rica and working primarily in Florida. They spoke or emailed often about living together in various places, including the United States. Somaru testified that he and Araya's "main plan" was to make the United States their permanent residence, although the location in the United States was not determined. Araya testified that Somaru talked a lot about residing in various locations to which he had traveled, but this was essentially just talk.
By 2009, when Somaru was working in Miami, Florida, Araya wanted to be together as a family either in or out of Costa Rica, but it did not happen. After that, Araya testified, she gave up any intention of permanently leaving Costa Rica because she just did not believe anymore. Somaru would travel back and forth between his parents' house in Cape Coral and Costa Rica. Somaru and Araya would live together in one of a series of rental houses when Somaru was in Costa Rica. In January, 2011, Somaru purchased a restaurant from Araya's stepfather in Costa Rica, but continued to travel back and forth from his parents' house in Cape Coral, Florida to Costa Rica. Araya initially ran the restaurant during Somaru's absences from Costa Rica, but another employee was soon promoted to manager. In February, 2011, Somaru hired Elizabeth Valde Varantes as a live-in nanny for I.S.A. in Costa Rica. Ms. Varantes was born in Costa Rica, and spoke only Spanish. On September 1, 2011, the parents obtained a United States passport for I.S.A. based upon her father's United States citizenship. On September 13, 2011, both Somaru and Araya executed a "Permiso de Salida de Personas Menores de Edad", a consent form which allowed either parent to travel alone with I.S.A. outside of Costa Rica. Araya testified that the purpose of the passport was to allow I.S.A. to visit her paternal grandparents, while Somaru testified it was in furtherance of their agreement to live permanently in the United States. From September 21 through October 8, 2011, the parents took I.S.A. on a trip to the United States. Somaru describes the trip as a chance for I.S.A. to meet her paternal grandparents and for he and Araya to look for a house and work pursuant to their plan to reside permanently in the United States. According to Araya, the purpose of the trip was simply to allow I.S.A. to visit her paternal grandparents in Cape Coral. During this trip Somaru took a side trip to Bolivia to visit his son for several days. The parents then took I.S.A. to Disney World, and they visited New York, where Somaru was offered employment. According to Somaru, Araya agreed to move to New York, and Somaru accepted the employment. I.S.A. and Araya returned to Costa Rica on October 8, 2011. Somaru testified he returned to Costa Rica in October for a weekend and again in November, 2011, both for the purpose of facilitating the plan to move to the United States. Araya agrees he came to Costa Rica, but only for visits. In the later part of November, 2011, Araya described a "final breakup" with Somaru. Somaru moved out of the house and left Costa Rica, and Araya began sending out employment resumes and actively looking for employment. Somaru testified he did not believe this was a permanent breakup, and that Araya simply did not answer his calls for several days. Somaru testified he left Costa Rica and returned to New York to get things under way while Araya looked for apartments in the New York area. After the breakup, Araya met and shortly thereafter became involved in a romantic relationship with another man in Costa Rica.
On December 1, 2011, Somaru returned to Costa Rica to take Araya and I.S.A. to the United States. Araya had packed up the house, and on Sunday, December 4, 2011, Somaru and the movers took the furniture to store in the nanny's house, which Somaru had rented for that purpose. Araya then told Somaru that she had a job interview the following day in San Jose, Costa Rica, which was three hours away. Somaru testified that Araya insisted on going to the interview to see if she could get the job, and would then quit. Araya testified this was a bona fide job interview, and she was trying to get the job in Costa Rica. Araya drove to San Jose on December 4, 2001, and Somaru and I.S.A. stayed in the nanny's house while Araya was in San Jose. Somaru made arrangements to leave Costa Rica with I.S.A. on December 8 if the nanny's visa was obtained. In San Jose, Araya interviewed for several days, and was ultimately hired. On December 7, 2011, Somaru, I.S.A., and the nanny took a bus to San Jose and met Araya. According to Araya, she and Somaru agreed that Somaru could take I.S.A. to Florida to visit the child's paternal grandparents if I.S.A. was returned to Costa Rica before December 28, 2011, Araya's birthday. Somaru maintains this was to be their final trip from Costa Rica to their new life in the United States. On December 8, 2012, Somaru and I.S.A. flew from Costa Rica to Florida, while Araya and the nanny (who had not yet obtained a visa) remained in Costa Rica.
Earlier in December, 2011, Somaru had applied to the United States Embassy for a "nanny" visa for Ms. Barrantes. Somaru's letter to the Embassy stated that Ms. Barrantes had been employed by him since October, 2011; that his fiancé and daughter would be traveling to the United States for the Christmas and New Year holiday; that his fiancé and daughter will return to Costa Rica after the New Year "as my fiancé and Daughter reside in Costa Rica where Ms. Barrantes takes care of my daughter full-time." The visa was issued on December 9, 2011, with the annotation of "babysitter to accompany Somaru family December 2011-Jan 2012 Florida" and with an expiration date of February 7, 2012. When Araya reported for work in San Jose, Costa Rica on December 8, she was told the position was no longer available. Araya then scheduled job interviews through December 14 in San Jose. She was ultimately offered employment. The nanny could only travel with one of the parents, and Araya and the nanny left Costa Rica and arrived in the United States on December 15, 2011. The nanny traveled on the six month "nanny visa", and Araya traveled on a 90-day tourist visa. Araya testified that the trip to the United States was a holiday trip so I .S.A. could see her paternal grandparents, and that she had no intention of living in the United States permanently. She testified she intended to return to Costa Rica for job training which began on December 19, 2011. Araya, Somaru, I.S.A., and the nanny all stayed at Somaru's parent's house for a day, and then in Somaru's sister's house in Cape Coral. Somaru testified that after they had been in Florida for about a week, Araya changed her mind and decided she did not want to go to New York, so he found work in Florida. Araya had scheduled a flight to Costa Rica on December 18, 2011, but missed it and ended up taking a flight to Costa Rica on December 22, 2011. Somaru testified that on December 21, 2011, Araya told him that she was going back to Costa Rica to wrap up a few things, including employment she had been offered which she no longer wanted, and that she would be back after the holidays. Araya testified that it was agreed that I.S.A. would be back in Costa Rica by December 26 or 27, before Araya's December 28 birthday. Araya returned to Costa Rica, and never returned to Florida (other in connection with this litigation). Somaru testified that he tried to contact Araya in Costa Rica, but had little success. Sometime after December 28, 2011, Somaru decided he needed to move forward with starting to build a life for I.S.A. in the United States without Araya. When I.S.A. was not returned by December 28, 2011, Araya contacted Somaru, who told her to "get used to it."
In January, 2012, Araya contacted Costa Rican authorities and initiated procedures to obtain the return of I.S.A. to Costa Rica, revoking her prior travel permission for Somaru and I.S.A. Araya began work at a new job in Costa Rica on January 2, 2012, and has worked and resided in Costa Rica since then. The Court resolves the credibility issues between petitioner and respondent on material issues as discussed below. The Court found that the retention of I.S.A. in the United States was clearly with petitioner's consent until on or about December 28, 2011, the date by which I.S.A. was to be in Costa Rica for petitioner's birthday. Petitioner testified that she agreed that I.S.A. could be taken to and remain in Florida to visit her paternal grandparents as long as I.S.A. was returned to Costa Rica by December 28, 2011. Respondent retained I.S.A. in Florida past that date without the consent of petitioner. The issue therefore becomes the location of I.S.A.'s habitual residence as of on or about December 28, 2011. Determination of a habitual residence focuses on the existence or non-existence of a settled intention to abandon the former residence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Ruiz, 392 F.3d at 1253-54, adopting the approach set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001).
The Court concluded that petitioner established by a preponderance of the evidence that on or about December 28, 2011, I.S.A.'s habitual residence remained Costa Rica. The Court found that the parents never had a settled intention to abandon Costa Rica as a habitual residence and to make the United States the habitual residence for themselves or the child. The version of the facts related by petitioner and respondent, while inconsistent as to material components, both established a lack of a settled intention to do almost anything together with regard to a habitual residence. The only settled shared intent the Court found credible was for I.S.A. to come to Florida for the holidays in December, 2011. The Court found that the actual state of affairs was as respondent told the immigration authorities in mid-December, 2011 in the nanny's visa application: Petitioner and I .S.A. resided in Costa Rica, they were going to Florida for a holiday, and they would then return to Costa Rica. Consequently, the Court finds that at the time the retention began on December 28, 2011, the habitual residence of I.S.A. was Costa Rica. Respondent maintained custody of I.S.A. in the United States and refused to allow the child to return to her mother in Costa Rica. Respondent also retained the child's United States passport (until surrendered to the court). I.S.A.'s usual family and social environment was with Araya in Costa Rica. The Court found that there was a "retention" of I.S.A. within the meaning of the Hague Convention from at least December 28, 2011, forward. Under Costa Rican law, parental custody depends on whether a child was born in or out of wedlock.
Petitioner and respondent were never married, and therefore their daughter I.S.A. was born out of wedlock. Costa Rican law provides, in such a circumstance that, [t]he mother, even when she is under age, shall have custody of the children born out of wedlock and shall have legal rights for that purpose. The Tribunal could, in special cases, confer custody to the father and natural mother jointly, according to its judgement, or upon request from Patronato Nacional de la Infancia and concerning solely the minors' interests. In the event that a child is born in wedlock, Costa Rican law generally provides for custody of both the mother and the father. Under Costa Rican law, custody was conferred to petitioner. Thus, respondent's retention of the child was a wrongful retention under the Hague Convention. Respondent's unilateral retention of I.S.A., without the consent of petitioner, violated petitioner's custody rights under Costa Rica law. The Sixth Circuit has stated that "[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find 'exercise' whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Friedrich, 78 F.3d at 1065. The court went on to "hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Under this standard, Petitioner established she was exercising her rights of custody at the time the child was wrongfully retained. As established above, petitioner had sole legal custody of I.S.A. There was no evidence of any acts by petitioner which constitute clear and unequivocal abandonment of the child . Accordingly, petitioner met her burden of establishing that I.S.A. was wrongfully retained by respondent and should be returned to Costa Rica, her habitual place of residence. The Court found no factual basis for any of the affirmative defenses raised by the Respondent and granted the petition.
Darin v. Olivero-Huffman, 2012 WL 3542514 (D. Puerto Rico)[Argentina] [Habitual Residence] [Consent]
In Darin v. Olivero-Huffman, 2012 WL 3542514 (D. Puerto Rico) on February 11, 2012, Lisandro Jonathan Darin (Petitioner) filed a Verified Petition for Return of Child against Lua Cecilia Olivero-Huffman (Respondent). The parties consented to proceed before this Magistrate Judge for all proceedings, including the entry of judgment On July 17 and 20, 2012 and on August 2 and 8, 2012, the trial was held.
Lisandro Jonathan Darin, Petitioner, and Lua Cecilia Olivero-Huffman, Respondent, were the natural parents of the child, who was born in Buenos Aires, Argentina on April 20, 2008. The child was citizen of the United States of America and of the Republic of Argentina. In 2007, Respondent traveled to Argentina to study dance therapy. Respondent bought an apartment in Argentina together with her sister.
In 2007, Respondent began a relationship with Petitioner and they began to live together in Respondent's apartment located in # 3357 Sarmiento Street, 1st floor, Apt. D, Buenos Aires. During her pregnancy, Respondent traveled with Petitioner to Puerto Rico and returned to Argentina. After their child was born, they moved with the child to an apartment, which belongs to Petitioner's family and was located in Villa Luro neighborhood. The parties traveled with the child to Puerto Rico on December 11, 2008, and returned to Argentina on February 9, 2009. While in Puerto Rico, they stayed at Respondent's mother's house located in # 514 Sagrado Corazon Street, San Juan.
The parties traveled with the child to Puerto Rico on March 24, 2009 for Respondent to take advantage of a work opportunity, and they returned to Argentina on August 7, 2009. While in Puerto Rico, they stayed at Respondent's mother's house. Respondent traveled alone with the child to Puerto Rico on January 19, 2010 under the terms agreed to and set forth in a Power of Attorney signed by the parties in Argentina, pursuant to which the child was authorized to travel to any country in the world accompanied by either of his parents, leaving the country and coming back when he/she considers it convenient, until the child becomes an adult. Respondent and the child returned to Argentina on April 2, 2010. While in Puerto Rico, they stayed at Respondent's mother's house. Petitioner revoked the Power of Attorney which authorized either of child's parents to travel with the minor. In mid-2010, the parties separated, and Respondent moved back with the child to her apartment.
The child began attending day care facility "Dulce de Leche", located near Respondent's apartment. On November 9, 2010, Respondent traveled to Puerto Rico alone and left the child with Petitioner under the agreement that the child would return under the care of Respondent upon her return to Argentina. The parties again moved in together and attempted a reconciliation. In late 2010, Respondent and her sister sold their apartment in Argentina. On January 31, 2011, the parties traveled to Orlando for vacation, and then traveled with the child to Puerto Rico on February 4, 2011. Upon arriving in Puerto Rico the parties and their child again stayed in Respondent's mother house. While in Puerto Rico in the first half of 2011, Respondent told Petitioner about her intentions to reside permanently in Puerto Rico with the child. Petitioner left Puerto Rico on July, 2011. Prior to Petitioner's departure to Argentina, Petitioner and Respondent subscribed and signed an affidavit on July 7, 2011, before Notary Public Jose Guillermo Perez Ortiz. Since February 4, 2011, Respondent and child had been living at # 514 Sagrado Corazon Street, San Juan, Puerto Rico. Since Petitioner's departure to Argentina he had continuous and frequent communication with his son by the use of telephone and internet. On December 19, 2011, Petitioner filed an application in Argentina to request remedies under the Hague Convention. On February 21, 2012, Petitioner filed a Verified Petition for Return of Child in the Federal Court for the District of Puerto Rico. During the 2011-2012 academic year, the parties' child had been attending school at "Escuela del Pueblo Trabajador" in Rio Piedras, Puerto Rico, and was enrolled for the 2012-2013 school year at the same school.
The Court pointed out that Respondent recognized in her answer to the petition that Petitioner was actually exercising custody rights when the alleged wrongful retention or removal occurred. The date on which the removal or retention took place was not an issue. It was undisputed Petitioner left Puerto Rico to Argentina on July 2011 and left his son under the care and supervision of his mother after signing an affidavit, as explained in detail herein below.
The Court observed that a majority of the circuits approach the question of habitual residence beginning "with the parents' shared intent or settled purpose regarding the child's residence." However, the Circuit courts are divided on the extent that parental intent should factor into the acquisition of a habitual residence. The First, Second, Fourth and Seventh Circuits place the primary focus upon parental intent, following the Ninth Circuit's decision in Mozes v. Mozes, 239 F.3d at 1067. The focus is on the parents' last shared intent in determining habitual residence. Under the Mozes' approach, the first inquiry when deciding whether a new habitual residence has been acquired is: did the parents demonstrate a shared intention to abandon the former habitual residence. This intent could develop during the course of the stay and need not be settled at the time of departure. The second inquiry under the Mozes' rationale is whether there has been a change in geography for an "appreciable period of time" that is "sufficient for acclimatization." Following Mozes, cases raising issues regarding parental intent fall into three general categories. The first category deals with cases where there was a mutual settled intent to change habitual residence. In this situation, courts are likely to find that the child's residence has changed. The second category consists of those cases where both parents intend the relocation to be temporary in which courts will not find a change in habitual residence if one parent decides to resettle in the temporary location. The third category under Mozes entails situations where parents agree to allow a relocation, but for an ambiguous or uncertain period of time. In these cases, it seems that the result centers on whether the stay was intended to be indefinite or whether there was a conflict in the parental intent. Where the intent points to an indefinite stay, courts have tended to find an abandonment of the prior habitual residence. Mozes further finds that parental intent cannot effect a change in the habitual residence "by wishful thinking alone," but that it must be accompanied by an actual "change in geography" plus an "appreciable period of time." Mozes recognizes that despite a lack of uniform parental intent, a relocation to a different country for a longer period of time may result in such a degree of acclimatization that the child acquires a new habitual residence.
According to the testimony of Petitioner, he traveled with Respondent and the child to Puerto Rico in February 2011 for vacation purposes with the intent to return to Argentina. While in Puerto Rico in the first half of 2011, Respondent told Petitioner about her intentions to reside permanently in Puerto Rico with the child. Petitioner averred this decision was against their original intent which was to return to Argentina by mid March 2011. Respondent testified that several times during her relationship with Petitioner and, since the beginning of the relationship she told him and his family, about her desire to live permanently in Puerto Rico with the child. At times, Petitioner was in agreement with Respondent's wish. When the couple traveled to Puerto Rico in February 2011, Petitioner was aware of Respondent's prior attempts to reside in Puerto Rico with the child and her intentions to do so. Respondent testified that during the stay in 2011, she delayed her return to Argentina because she had a car accident and was waiting for her sister to come to Puerto Rico to spend time with her and develop a business for their mother. During this period, Respondent found two part time jobs in Puerto Rico, bought a car and the child was sharing with his maternal family where he lived with Petitioner and Respondent, including grandparents, a cousin about his age, among other family members. Petitioner took care of the child at the house while Respondent worked. Petitioner made some attempts to start a business in Puerto Rico and he contacted a friend in Texas to try to start a business of selling used cars in Puerto Rico with no positive results. Petitioner also contemplated opening a restaurant in Puerto Rico. By mid March 2011, Respondent told Petitioner of her intentions to reside permanently in Puerto Rico with the child. Knowing already by mid 2011 that Respondent had intentions of residing in Puerto Rico permanently with the child, Petitioner left Puerto Rico to Argentina on July, 2011 after subscribing and signing with Respondent an affidavit on July 7, 2011, before a Notary Public. Petitioner testified he had to leave Puerto Rico because the family business in Argentina was falling apart and his visa was about to expire.
The affidavit which was signed in Puerto Rico by Petitioner and Respondent before a Notary Public, in its pertinent parts reads as follows: WE, LUA CECILIA OLIVERO-HUFFMAN, of legal age, single, employee and a resident of San Juan, Puerto Rico, and LISANDRO JONATHAN Darin, of legal age, single, property owner, and a resident of Buenos Aires, Argentina, under the most solemn oath do hereby declare: 3. Lisandro Jonathan Darin, for reasons beyond his will, must leave the country. 4. The son of the parties, Lucio Alejandro Angel Darin-Olivero, is not being abandoned by his father since he will be in charge of all of the events relative of the minor, who will be under the care and supervision of his mother, Lua Cecilia Olivero-Huffman, with the absence of his father Lisandro Jonathan Darin. 5. For the best well-being of the minor, Lisandro Jonathan Darin authorizes Lua Cecilia Olivero-Huffman to make all the necessary arrangements on behalf of their son in the areas of education, health, and in everything that may be necessary for the best interests and well-being of the minor. 6. The son of the parties, Lucio Alejandro Darin-Olivero, is authorized to travel with either of his parents in the absence of the other to any country in the world, returning to the same when deemed convenient, until he reaches legal age.
The Court found that the clear language of the affidavit showed a different residence at the time of signing the document for Petitioner and Respondent. Respondent identified herself as resident of San Juan, Puerto Rico and Respondent as resident of Buenos Aires, Argentina. The affidavit demonstrated that, before leaving to Argentina on July 2011, Petitioner voluntarily left the child in Puerto Rico under the care and supervision of his mother, Lua Cecilia Olivero-Huffman, with the absence of his father Lisandro Jonathan Darin. Petitioner authorized Respondent, for the best well-being of the child, "to make all the necessary arrangements on behalf of their son in the areas of education, health, and in everything that may be necessary for the best interests and well-being of the minor."Petitioner also agreed for the child "to travel with either of his parents in the absence of the other to any country in the world, returning to the same when deemed convenient, until he reaches legal age."
Respondent testified that their agreement and intent in signing the affidavit was for her to stay in Puerto Rico with the child and Petitioner would travel to Argentina for a period of time and would come back to Puerto Rico. After Petitioner left on July 2011 to Argentina, he did not make any child support payments to Respondent for the benefit of the child. Thus, Petitioner was exercising his joint custody rights with Respondent when, prior to his departure from Puerto Rico to Argentina, he voluntarily signed with Respondent an uncontested agreement before a Notary Public, in which Petitioner expressly consented to the child staying in Puerto Rico for an indefinite period of time, under the care and supervision of Respondent. Petitioner admitted the terms of the affidavit were for an indefinite amount of time.
The affidavit clearly showed the parents' last shared intent in determining habitual residence. It was hard to think of a more formal acquiescence or alternatively a waiver of Hague Convention rights than voluntarily entering into an agreement signed before a Notary Public as the one signed in this case. Based on the testimonies of Petitioner and Respondent, their intention when they left Argentina in January 31, 2011 to travel to Orlando and Puerto Rico on vacation was to return to Argentina, as they had done on the prior occasions they had traveled to Puerto Rico. However, that intention changed during their stay in Puerto Rico and by the signing of the affidavit. As the Mozes' court noted, one need not have a settled intention at the moment of departure; the intention may coalesce during the course of a stay abroad originally intended to be temporary. Petitioner and Respondent unequivocally agreed on July 2011 that their child would remain in Puerto Rico for an indefinite, extended period of time for a settled purpose as described in the affidavit. Thus, at the time Respondent allegedly removed or retained the child in Puerto Rico, Petitioner had acquiesced/consented and, thus, the settled purpose was still in force. The Court concluded (under the Mozes' approach) that, a new habitual residence in Puerto Rico was acquired based on the parents' shared intention in signing the affidavit in which it was agreed the child was going to remain under the care and supervision of Respondent in Puerto Rico for an indefinite period of time. Moreover, there was a change in geography for an "appreciable period of time" that is "sufficient for acclimatization."
The Court concluded that Petitioner has failed to meet his burden and the alleged removal or retention of the child was not wrongful under the meaning of the Hague Convention. Because the parties' shared intent, as evidenced by the affidavit subscribed by both, was for the child to remain in Puerto Rico for an indefinite period of time under the care and supervision of Respondent, the court found the child was a habitual resident of Puerto Rico at the time of the claimed removal or retention. Because the child was habitually a resident in Puerto Rico, Respondent's alleged removal or retention of the child in Puerto Rico was not wrongful and the court did not need to engage in any further analysis. As such, the Petition was denied.