In Calixto v Lesmes, 2019
WL 501068 (M.D. Florida, 2019) after an evidentiary hearing, the Magistrate
Judge issued a Report and Recommendation (R&R) recommending that Mr.
Calixto’s petition be denied because both parties shared the intent for the
United States to be M.A.Y.’s habitual residence. Subsequently, the Court
adopted the R&R and denied Mr. Calixto’s petition. On appeal, the Eleventh
Circuit found unresolved factual issues, which prevented proper determination
of M.A.Y.’s habitual residence. The Eleventh Circuit retained jurisdiction but
remanded the case for further factual findings. On remand, the Court referred
the case for a supplemental R&R. In remanding the case, the Eleventh
Circuit identified specific factual issues for this Court to resolve: (1) the
status of the relationship between Mr. Calixto and Ms. Lesmes in 2015; (2) the
circumstances surrounding the travel consent form executed by Mr. Calixto and
M.A.Y.’s departure from Colombia; and (3) ultimately “whether Mr. Calixto’s
intent to change M.A.Y.’s habitual residence was conditioned upon his joining
Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated
once Mr. Calixto was unable to come to the United States.” Additionally, the
Eleventh Circuit stated that the Court should address “whether the evidence
presented at the hearing provides either of the alternative means of
establishing habitual residence,” which are set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). The
Magistrate Judge noted that under the Hague Convention, Mr. Calixto must
establish the facts in support of his petition by a preponderance of the
evidence. 22 U.S.C. § 9003(e)(1). He found
that Mr. Calixto had not established the facts supporting his petition by the
preponderance of the evidence.
The first
question the Court had to resolve is the status of the relationship between Mr.
Calixto and Ms. Lesmes in 2015. The Court, finding the testimony of Ms. Lesmes
to be honest and credible, found that the relationship ended in August 2015 and
did not resume. The next
factual issue for consideration concerned the circumstances surrounding the
travel consent form executed by Mr. Calixto in November 2015 and M.A.Y.’s
departure from Colombia. The court found that the travel consent form indicated
Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the
return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he
could not gain entry into the United States. The
above findings laid the foundation for the ultimate question on remand: whether
Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon
his joining Ms. Lesmes and M.A.Y. in the United States. In accordance with the
above findings, the court found that Mr. Calixto shared an unconditional intent
to change M.A.Y.’s habitual residence to the United States, regardless of his
ability to enter the United States. Because the Court found that Mr. Calixto
expressed an unconditional consent for M.A.Y. to move to the United States, and
because the Eleventh Circuit did not disturb this Court’s previous findings
regarding acclimatization, M.A.Y.’s habitual residence changed to the United
States.
The Eleventh Circuit also asked the Court to consider
“whether the evidence presented at the hearing provides either of the
alternative means of establishing habitual residence.” In Mozes v. Mozes,
the Ninth Circuit addressed the difficult question of “when evidence of
acclimatization should suffice to establish a child’s habitual residence,
despite uncertain or contrary parental intent.” 239 F.3d at 1078. After thorough discussion
of the goals of the Hague Convention and the flexibility of children, the court
acknowledged that “a child can lose its habitual attachment to a place
even without a parent’s consent.” Adopting the reasoning of the Ninth Circuit,
the Eleventh Circuit noted in Ruiz v. Tenorio 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, or if the
court could “say with confidence that the child’s relative attachments to the
two countries have changed to the point where requiring a return to the
original forum would now be tantamount to taking the child out of the family
and social environment in which its life has developed. “Ruiz (quoting Mozes, 239 F.3d at 1081). Thus, to answer the final question on
remand, the Court had to consider—if Ms. Lesmes and Mr. Calixto did not
share intent to change M.A.Y.’s habitual residence—whether the facts
unequivocally pointed to a new habitual residence, or if the Court could say
with confidence that sending M.A.Y. back to Colombia would be tantamount to
taking her out of the family and social environment in which her life had
developed. The parties agreed that the relevant time period to assess the
M.A.Y.’s habitual residence wass “‘immediately before the removal or retention.’”
See Fuentes-Rangel v. Woodman, 617 F. App’x 920, 921 (11th Cir. 2015).
The
critical question was whether M.A.Y.’s habitual residence had changed to the
United States by November 2016. To answer that question, the Court, as
instructed by the Eleventh Circuit, considered “whether the evidence presented
at the hearing” established a change in habitual residence. As discussed in the
prior R&R, a change in habitual residence, even with the shared intent of
the parents, requires some acclimatization to the new residence. Ruiz, 392 F.3d at 1253 (citing Mozes, 239 F.3d at 1078). To that end, the Court found sufficient
evidence of acclimatization to effect a change in habitual residence with
the shared intent of M.A.Y.’s parents. But without shared intent of the
parents, the Court must be confident in a high level of acclimatization.
“Despite the superficial appeal of focusing primarily on the child’s contacts
in the new country ... courts should be slow to infer from such contacts that
an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. “The Convention is designed to prevent child
abduction by reducing the incentive of the would-be abductor to seek unilateral
custody over a child in another country. The greater the ease with which
habitual residence may be shifted without the consent of both parents, the
greater the incentive to try.” Additionally, “[c]hildren can be remarkably
adaptable and form intense attachments even in short periods of time.” In considering the evidence presented at
the evidentiary hearing, the Court could not say that the facts unequivocally
pointed to a new habitual residence. The Court previously identified numerous
factors showing M.A.Y.’s acclimatization in the United States, including
religious services, friends and family, and the beginning of M.A.Y.’s formal
education. However, M.A.Y. also participated
in many similar activities in Colombia, the country where she was born and
spent the early years of her life, including family functions, religious
events, and early schooling. M.A.Y. also had numerous family members in
Colombia. M.A.Y.’s contacts in the United States were the
type of routine contacts from which a court should be “slow to infer” a change
in habitual residence. See Mozes, 239 F.3d at 1067. Mozes made clear that a great weight
should be attributed to the intent of the parents over evidence of
acclimatization. Although M.A.Y. developed strong ties to the United States,
the evidence showed ties to Colombia as well. The evidence did not establish
that M.A.Y.’s acclimatization to the United States was so complete that serious
harm could be contemplated by a return to Colombia. Thus, although M.A.Y. had
acclimatized to the United States sufficient to change her habitual residence
with her parents’ intent, the record did establish the high level of
acclimatization necessary to overcome a lack of shared intent. Therefore, it was
recommended that the Court find that M.A.Y.’s habitual residence changed to the
United States based on her parents shared, unconditional intent. If the Court finds
that M.A.Y.’s parents did not share an unconditional intent, it was recommended
that the Court not find a change in M.A.Y.’s habitual residence.
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