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Wednesday, January 16, 2019

Cocom, v. Timofeev, 2019 WL 76773(D. South Carolina, 2019) [Belize][Consent][Petition granted]

         In Cocom, v. Timofeev, 2019 WL 76773(D. South Carolina, 2019) the district court granted the petition of Raquel Margarita Cocom against her child’s father Andrey Timofeev and Grandmother, Irina Timofeev to have her child minor child returned to her in Belize.  

          Cocom was a Belizean citizen who had lived in Belize all her life. Timofeev was a Russian citizen who moved to Belize towards the end of 2008. At the time of Timofeev’s relocation to Belize, Grandmother was already living in the United States as a lawful permanent resident. Cocom and Timofeev met in Belize in March 2009.  Cocom and Timofeev were the biological parents of the Child, who was born in Belize in November 2015. Until her travel to the United States with Timofeev in 2017, the Child’s only residence was Belize. Early in their relationship, Timofeev told Cocom of his intention to immigrate to the United States. At trial he testified that moving to Belize was always part of his plan to immigrate to the United States, because it was an English-speaking country close to the United States. Cocom testified that, prior to the Child’s birth, she had no problem with Timofeev immigrating to the United States, but that she intended to remain in Belize with J.J.R. and her family. Grandmother filed Form I-130 with the Department of Homeland Security (“DHS”) on May 27, 2009, in which she petitioned for Timofeev to (1) receive a visa to travel to the United States as an unmarried adult son of a naturalized American citizen, and (2) become a lawful permanent resident. Timofeev testified that, at around the time of this initial filing, he considered himself in a common law marriage with Cocom, though the Child was not yet born. Shortly after the Child’s birth in November 2015, Timofeev again mentioned his plan to immigrate to the United States. Cocom explained at trial that she had been open to this idea, but only if she, Timofeev, the Child, and J.J.R. all immigrated to the United States together as a family. Around the same time as this conversation, Timofeev completed an online Form DS-260 that he electronically signed and filed with DHS on May 9, 2016. Cocom testified that she did not know that Timofeev had been filing any of these immigration papers. After Timofeev e-filed his Form DS-260, Grandmother filed Form I-864 with DHS affirming that she was sponsoring Timofeev to become a lawful permanent resident. This time, however, Grandmother included the Child on the immigration form as an immediate family member of Timofeev, who was the principal immigrant she would be sponsoring. The Child was a derivative beneficiary eligible to receive a visa to travel to the United States to become a lawful permanent resident. Around the same time, Timofeev also had completed the Form DS-260 online for the Child. Cocom testified that she did not know that Timofeev had started the process for the Child to receive a green card. She claimed she did not know about this process until Timofeev and the Child were already in the United States. In July 2016, the Child was examined by a doctor as part of the paperwork for her immigration to the United States. During the doctor’s exam, Cocom testified that she questioned the doctor regarding the Child’s shots because the Child already had an appointment scheduled for October of that year to receive her vaccinations. The doctor responded that the Child would be in the United States at that time.  Cocom claimed that she asked Timofeev to explain what the doctor meant after the exam finished. She said that Timofeev explained that the Child was getting shots that the government of Belize could not afford to give to all Belizeans. Timofeev testified that, at that appointment, he “explained we are applying for, permanent residence for me, my child...”   The parties’ accounts of the visa interview also diverged. Timofeev claimed that the interviewer explained that only Timofeev and the Child would be travelling to the United States and that Cocom might not see the Child for several years. By contrast, Cocom testified that she was at the United States Embassy in Belize on July 11, 2017, but was not formally interviewed or put under oath. She claimed that Timofeev was the only one to answer any questions that were asked. She testified that she never gave consent to an embassy official for the Child to travel to the United States permanently, and that she did not raise any objections while at the embassy because of Timofeev’s bad temperament and her lack of understanding of the process. Cocom testified that Timofeev explained to the official at the consulate that Cocom would be travelling to the United States on a tourist visa, leading her to believe that the whole family would be getting tourist visas. Following the completion of the immigration process, Timofeev and the Child received visas to travel to the United States and to become lawful permanent residents. Cocom testified that she was not aware of this, instead thinking that they had received tourist visas. Timofeev testified that his and the Child’s visas for permanent residency status were approved in mid-October 2017, and that he informed Cocom of this immediately. Cocom testified that she was not made aware of the permanent residency visas and was rather told on November 4, 2017 that Timofeev and the Child would be departing for a two week visit the following day.  On November 4, 2017, Grandmother purchased tickets for Timofeev and the Child to fly from Belize to Miami the following day. The parties testified when they arrived at the airport the next day, November 5, 2017, the Belizean immigration authorities required a signed document from Cocom authorizing the Child to fly out of the country. The document was drafted and signed at the airport shortly before the flight. The document authorized Timofeev to take the Child out of Belize, but was silent as to the length of the trip or the scope of the authorization. Cocom testified throughout the trial that she and Timofeev had agreed that Timofeev would take the Child to the United States for two weeks to visit Grandmother and would then return home. By contrast, Timofeev claimed that the plan at the time of his departure was that he and the Child would travel to the United States and then petition to bring Cocom and her son, J.J.R., into the United States legally. Timofeev and the Child arrived in Miami on November 5, 2017, and presented themselves to Customs and Border Protection for admission into the country. Timofeev and the Child became lawful permanent residents, and several weeks later they received their permanent resident cards (“green cards”) in the mail. After arriving in the United States, Cocom would routinely speak with Timofeev and the Child over the phone. The Child began living with Timofeev and Grandmother in Georgetown County, South Carolina, where she currently lived.  

          Cocom testified that upon learning that Timofeev would not be returning with the Child two weeks after the child departed Belize, she visited INTERPOL in Belize to request information about the location of Timofeev and the Child. She did so on November 21, 2017, shortly after the alleged fourteen-day return deadline passed on November 19, 2018. She also visited a governmental agency, Human Development, which serves as the Belizean Central Authority under the Hague Convection. At that time, she applied for return of the Child under the Hague Convention.  The next day, November 22, 2017, Cocom visited the Orange Walk Police Department and filed a police report. In that police report, she stated that the parties had an agreement for the Child to return from the United States after two weeks, but that Timofeev violated the agreement by failing to return the Child to Belize. Cocom also testified that during this time she continued to ask Timofeev to return the Child to Belize. She testified that when she would ask Timofeev to return the Child, she would remind him that they had a verbal agreement that the Child would only be gone from Belize for two weeks. Belizean officials completed the application for the Petition on or about January 26, 2018, after which it was transmitted to the United States Department of State. Cocom then obtained pro bono counsel in the United States to locate the Child and to file the Petition. Cocom’s petition before the court, filed on August 14, 2018, alleged wrongful detention of the Child, in violation of the Convention and ICARA.  The court held a trial on the merits of this case on December 5–6, 2018.

          The district court indicated that the Ninth Circuit’s opinion in Mozes v. Mozes has served as a guide for federal courts in determining parental intentions in Hague Convention cases.” Maxwell, 588 F.3d at 251. The court found that the habitual residence of the child was Belize and that the Child had not acclimatized to life in the United States to such an extent that returning the Child to Belize would be improper under the Convention. It also found that the Child’s removal violated her rights of custody. “[R]ights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal.” White v. White, 718 F.3d 300, 307 (4th Cir. 2013). Courts should rely on the law of the state in which the Child was habitually resident to determine whether the petitioner possessed rights of custody at the time of the Child’s removal. See Bader v. Kramer, 445 F.3d 346, 349–50 (4th Cir. 2006). Under Belizean law, biological parents have “rights relating to the care of the person of the Child.” Belizean family law mandates that “[e]very parent shall have parental responsibility for his [or her] child.” Belize Families and Children Act Ch. 173, Rev. Statutes of Belize 2011, § 6(1). The court finds that Cocom had rights of custody under the Convention at the time when the Child was removed to the United States, and has thus proven the second element of her prima facie case. Cocom presented sufficient evidence at trial to allow the court to conclude that she was caring for the Child, who was living with her, at the time that the Child was removed from Belize.

          The evidence at trial clearly demonstrated that Cocom did not acquiesce to the Child’s permanent retention in the United States after Timofeev and the Child arrived here. Regarding whether Cocom had consented to the Child’s permanent relocation to the United States before she departed Belize, Cocom testified that her agreement with Timofeev regarding where the Child and the whole family would reside shifted with time. She claimed that she and Timofeev first agreed that they would obtain visas to immigrate to the United States together, but that Timofeev then changed plans and only applied for a visa for himself and the Child without informing her. She claims that Timofeev first told her on November 4, 2017 that Grandmother had bought tickets for him and the Child to fly out of Belize the very next day. At this point, according to Cocom, the parents no longer had a shared intention that the Child would permanently relocate to the United States. Rather, as Cocom testified, the parents agreed that Timofeev would only travel to South Carolina with the Child for two weeks to visit his family, after which Timofeev would return with the Child. By contrast, Timofeev testified that the plan was always for him and the Child to come to the United States first, obtain green cards, and then apply to have Cocom and J.R.R. join them in the United States. He testified that Cocom was fully aware of this plan when he and the Child left Belize. Timofeev testified that he and Cocom had expected that he and the Child would receive their green cards about two weeks after arriving in the United States, at which point they would be able to begin the process to bring over Cocom and her son. At the trial, Timofeev explained that this must be the basis for Cocom’s “two weeks” theory, implying that she had agreed to the plan until it took more than two weeks for him and the Child to receive their green cards, at which point she abandoned the original plan and initiated proceedings to ensure the return of the Child. The operative fact in this case was that Timofeev had not proceeded with the immigration process for Cocom and J.R.R to move to the United States, even though he received his green card one year earlier in December 2017. According to his narrative, this promise to pursue immigration status on behalf of Cocom and her son was part of the original plan. Yet at trial, Timofeev testified that he had since abandoned that plan because Cocom initiated this proceeding against him. The physical evidence admitted at trial did not conclusively support one narrative over the other, and the court found both stories to be plausible. It held that Cocom had the burden to prove by a preponderance of the evidence that she and Timofeev had not shared a settled intention that the Child relocate permanently to the United States. On the other hand, Timofeev had the burden to prove by a preponderance of the evidence that Cocom consented to the Child’s removal in order successfully assert “consent” as an affirmative defense.

          The district court held that it would order the return of the Child due to Timofeev’s violation of the conditions of Cocom’s consent. Under the Convention, the court must consider all of the “conditions” of consent. Here, the court found that a crucial condition of Cocom’s alleged consent was violated and should be remedied. The court’s decision was also motivated by the reality that, by bringing the Child to the United States but not fulfilling his promise to also bring Cocom, he had essentially deprived Cocom from seeing the Child for the remainder of her childhood. Cocom, who was proceeding in the court in forma pauperis with pro bono counsel, was not financially capable of making frequent visits to the United States to visit her child. Without making a determination regarding which of the parties’ factual narratives were accurate, the court found that, even if it relied on Timofeev’s version of events, Timofeev violated the condition of Cocom’s consent, which rendered the consent invalid.

          Thus, the court found that the Child has been wrongfully detained in the United States in violation of the Convention and granted Cocom’s Petition.

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