Recent Hague Convention District Court Cases - Soares v. Goncavales, 2022 WL 19354528 (M.D. Florida., 2022)

 

[Brazil][Habitual residence][Petition denied]

    In Soares v. Goncavales, 2022 WL 19354528  (M.D. Florida., 2022) the Court denied the Petition for the  return of his minor children to Brazil. Petitioner and Respondent were the biological parents of the two children. In 2018, Respondent relocated to the United States causing Petitioner and Respondent to enter into a Custody Agreement that was approved by the Brazilian court. The Custody Agreement maintained joint legal custody between Petitioner and Respondent but granted sole physical custody of the children to Petitioner. The Custody Agreement also guaranteed Respondent free visitation and mandated visits between Respondent and the children during their school holidays. In December of 2021, Petitioner brought the children to Florida and dropped them off with Respondent to visit over the school holiday pursuant to the Custody Agreement. Instead of returning the children at the appointed time, Respondent obtained a temporary custody order from the Brazilian Court granting Respondent custody of the children on the basis that they were affected by COVID-19. On August 11, 2022, the Brazilian court issued an order on Respondent’s petition and changed the custody of the children. The Brazilian Court granted Respondent’s request that the physical custody of the children be placed with her in the United States. Ultimately, the Brazilian Court concluded that the parties would continue to share joint legal custody of the children “but with alteration of the main residence, so that it is with the mother.” The Brazilian Court then specified Petitioner’s visitation rights, consisting of fifteen days during school holidays each year.

 

    The district court held that regardless of whether Respondent’s initial retention of the children violated Petitioner’s parental rights, it is clear that the current retention of the children in the United States with Respondent is not in violation of Petitioner’s parental rights. The Brazilian Court resolved this issue and gave physical custody of the children to Respondent. Further, at the August 12, 2022 hearing, Respondent testified that she intended to abide by the Brazilian Court’s order and allow Petitioner to exercise his visitation rights consistent with the Order. Thus, the Petition is denied. See Navani v. Shahani, 496 F.3d 1121, 1127–31 (10th Cir. 2007) (concluding that a new custody order issued by the country that was the child’s habitual residence controlled and rendered the appeal moot because it precluded the court from effectuating any relief.