Recent Hague Convention District Court Cases - Haidar v Vazquez, 2019 WL 13254345 ( District of Columbia, 2019)

 

[France] [Petition granted][ [Wrongful retention]

 In Haidar v Vazquez, 2019 WL 13254345 ( District of Columbia, 2019) the court found that Respondent Maria Eugenia Sanin Vazquez, has wrongfully retained E.A.-H.S. within the meaning of the Convention, granted the Petition and ordered the child returned to France.

 

The Court observed that a petitioner seeking the return of a child under the Convention must prove by a preponderance of the evidence that the child “has been wrongfully removed or retained within the meaning of the Convention.” 22 U.S.C. § 9003(e)(1)(A). “A removal or retention is ‘wrongful’ under the Convention when (1) ‘it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and’ (2) ‘at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.’ ” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012) (Courts have fashioned a three-part test to determine whether the petitioner has made the required showing. See, e.g., Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). The petitioner must establish that (1) the child was “habitually resident” in the petitioner’s country of residence when he or she was removed or retained; (2) the removal or retention breached the petitioner’s custody rights under the law of the petitioner’s home state; and (3) the petitioner was exercising his custody rights at the time of removal or retention. See, e.g., id.; Larbie, 690 F.3d at 307; Bader v. Kramer, 484 F.3d 666, 668 (4th Cir. 2007); see also Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270–71 (3d Cir. 2007).

 

The court found that Respondent wrongfully retained E.A.-H.S. on May 7, 2019, when Respondent served upon Petitioner the Complaint for Custody that she filed in the D.C. Superior Court. Before that date, the parties enjoyed joint physical and legal custody of their child. Respondent’s Complaint for Custody, however, sought to alter the status quo, as she asked to be granted primary physical custody of E.A.-H.S. Respondent’s initiation of a legal action for greater custody rights constituted wrongful retention under the Convention. See Mozes v. Mozes, 239 F.3d 1067, 1069–70 & n.5 (9th Cir. 2001) (determining that wrongful retention occurred when the respondent asked a domestic court to grant custody of children); cf. Darin v. Olivero-Huffman, 746 F.3d 1, 10–11 (1st Cir. 2014) (finding retention occurred when respondent “made clear” to petitioner that child would be permanently resident in United States); In the matter of C (Children) U.K.S.C. 8 (2018), at 18–24 (expressly recognizing the legal concept of anticipatory retention).

 

The court further found that E.A.-H.S.’s country of “habitual residence” before May 7, 2019, was France. Courts generally make two inquiries to determine the place of habitual residence, that is, “the place where [the child] customarily lives.” Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018). The majority of courts follow the Ninth Circuit’s decision in Mozes and look primarily to the parents’ last shared “settled intention” for the child’s habitual residence. See Mozes, 239 F.3d at 1074–75.² Secondarily, they consider whether the child has become “acclimatized” to the new country.. “In the case of young children, ... it [is] most prudent to focus on the intent of the parents rather than the intent of the child in determining the child’s habitual residence.” Koch v. Koch, 450 F.3d 703, 713 (7th Cir. 2006). Here, the parties’ primary family home was in Paris, France, before they came to the United States in the summer of 2018. Both parents had their primary jobs in Paris and their daughter was enrolled in school there. When the parties left France, they agreed to come to Washington, D.C., for at least 18 months, which was the term of Respondent’s first contract with IDB. The parties’ actual anticipated length of stay in Washington, D.C., was unclear. What is clear, is that the parties did not leave France in a manner that would suggest a shared intent to relocate indefinitely to the United States. See Mozes, 239 F.3d at 1075 (“[T]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.”). Petitioner took no steps to practice medicine in the United States, the parties retained real property in Europe, they placed valuable personal property in storage in France, and there were no outward signs of a permanent relocation, such as a going-away party with close friends. The court found that the parties did not intend to abandon France as their habitual place of residence. Insofar as E.A.-H.S.’s acclimatization to the United States, E.A.-H.S. had lived in the United States for only about ten months when Respondent filed a custody action that sought to alter the status quo. Evidence of acclimatization over such a short period of time is not enough to overcome the parties’ lack of intent to abandon France as their daughter’s habitual residence. See Papakosmas v. Papakosmas, 483 F.3d 617, 626 (9th Cir. 2007) (noting that “in the absence of settled parental intent, courts should be slow to infer from such contacts [in the new country] that an earlier habitual residence has been abandoned”). Finally, there was no genuine dispute that Respondent’s retention of E.A.-H.S. breached Petitioner’s custody rights under French law, and Petitioner was exercising his custody rights at the time of retention. Respondent did not assert an affirmative defense recognized under the Convention.