Search This Blog

Wednesday, December 13, 2023

Recent Hague Convention District Court Cases - Bre v Aguirre, 2023 WL 8371981( S.D. Florida, 2023)[Argentina][Habitual residence][Petition denied]

 


 

In Bre v Aguirre, 2023 WL 8371981( S.D. Florida, 2023) the District Court denied the  mothers Petition to have her minor child, I.A.B., returned to her custody in Argentina.

 The child was born in the United States in January 2015, but in 2017 moved to Argentina with the Petitioner. On or about December 15, 2022, I.A.B. traveled to the United States to spend the Argentine summer break period with the Respondent, ending on March 15, 2023. The Respondent never returned I.A.B. to Argentina, and I.A.B. remains in the United States. The Petitioner alleged that she never consented to the child’s retention in the United States following the child’s short-term visit to Florida.

 In opposition to the petition, the Respondent argued in his motion to dismiss and at the hearing that I.A.B. was born in the United States and that a Parenting Plan established by the Eleventh Judicial Circuit in and for Miami-Dade County established by mutual agreement that I.A.B.’s country of habitual residence is the United States. Courts must consider the totality of the circumstances in determining the habitual residence of a child for Hague Convention purposes. Monasky v. Taglieri, 140 S. Ct. 719, 729 (2020). “As best I can determine, the concept of “habitual residence” [...] means the place where the child in fact has been living for an extended period—unless that place was never regarded as more than temporary or there is another place to which the child has a strong attachment.” Id. at 734-35 (2020) (Alito, J., concurring). I.A.B. was born in Miami and lived here with both parents until 2017, when the Petitioner moved to Argentina due to immigration issues, bringing the child with her. The child did not hold Argentine citizenship. In June 2021, the parties signed a Parenting Agreement, under the terms of which it was agreed the child would live with the Petitioner in Argentina until she was ten years old (January 2025), at which time she would return to Miami, and the Respondent was allowed time sharing in Miami during the extended summer and winter school breaks until that time. In December 2022, the Petitioner allowed the Respondent to exercise his summer visitation and allowed the paternal grandfather to take the child to Miami with the understanding the child would be returned to Argentina in March 2023. The grandfather returned to Argentina in March 2023 without the child, who remains living in Miami with the Respondent. The Respondent told the Petitioner he did not intend to return the child.

 The Petitioner claimed that she was defrauded into signing the Parenting Plan because she did not understand the contents of the document when she signed it, and that the United States therefore should not be regarded as the child’s habitual residence. The Court held that a person seeking to disavow a contract based upon their claim of not being proficient in English must establish more than lack of English proficiency to render the contract unenforceable, such as fraud on the part of the other party. “[I]nability to read in English will not preclude a person from entering into a binding contract that he signs without reading.” “Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.” Federal courts have similarly found that inability to understand English does not invalidate a contract.. The Petitioner testified that she believed that the documents merely established the Respondent’s paternity of the child and set forth the legal name of the child agreed to by the parties. However, this subjective belief was insufficient to establish that the Petitioner’s agreement was fraudulently obtained.  The Court therefore concluded that I.A.B.’s habitual residence was the United States based upon the totality of the circumstances, including her parents’ shared intentions as reflected in the Parenting Plan and Final Judgment of Paternity and the child’s practical circumstances. Because the child was currently present in the country of habitual residence, relief under the Hague Convention was not available. See Hague Convention Preamble, T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 89, at 98.

 

No comments:

Post a Comment