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Monday, March 12, 2012

Giles v Bravo, 2012 WL 704745 (D. Nev.) [Mexico] [Well Settled in New Environment] [Acquiescence]

In Giles v Bravo, 2012 WL 704745 (D. Nev.) the district court denied review and affirmed the finding of the Magistrate Judge, that the Child in question should not be returned to Mexico pursuant to the Hague Convention.
Plaintiff served her Petition on October 18, 2011. The Court held a status conference on December 9, 2011.Respondents admitted evidence of a letter issued by the Consul of the United States of America at Mexico, Federal District ("D.F."). wherein Petitioner granted Respondents permission to travel with the child from July, 2010 until the year 2015. Further, Respondents submitted an Order Granting Guardianship of the child to them in the Eighth Judicial District of Nevada dated February 10, 2011.
Petitioner was born in Mexico City. Her parents, Rogelio Sanvicente Bravo and Eva Rodriguez Giles (Respondents), illegally transported her to the United States at the age of three. Petitioner became pregnant with the child at the age of 15 while living with Respondents. Petitioner lived in Respondents' home with her child after the birth. Petitioner testified that her father took care of the baby during the night. After several months, Petitioner agreed to leave the child with Respondents while she cohabited with her boyfriend. She testified that she routinely visited the child. Petitioner's paternal grandmother advised her at this time that Respondents wished to obtain custody over the child.
Petitioner then attempted to remove the child from Respondents' home. Petitioner testified that she did take the child without her belongings, but then stated
that she could not keep the child because her parents threatened to notify Social
Services that Petitioner was unemployed. Petitioner further testified that around this
time, Respondent Rogelio Bravo told her he would "follow up" with her immigration
case, which would allow her to legally remain in the United States, in exchange for
custody of the child.
The child remained with Respondents. At some point during the next two years,
Petitioner became pregnant with her second child, and married a man named
Vladimir. Petitioner and Vladimir moved back into Respondents' home. Petitioner
testified that in 2007 Vladimir witnessed Respondent Eva Rodriguez Giles refer to the
Petitioner as "Tania" instead of "your mom" when speaking to the child. This comment
upset Vladimir, causing him and Petitioner to decide to take the child and relocate.
Petitioner and her family relocated to another home in Las Vegas and in 2008, Petitioner decided to move with her family to Mexico where her husband had obtained employment. Petitioner testified that the child thrived in Mexico and enjoyed her life.
In May 2010, Petitioner notified her mother that Vladimir had abused her, threatened to take the children, and kicked her out on the street. Respondents gave Petitioner money in order to travel to the D.F. in Mexico. While there, Petitioner stayed with her maternal grandmother. Respondents traveled to Mexico to meet with Petitioner and the child. The following month, Petitioner began the process to obtain a passport for the child. In addition, Petitioner signed a travel authorization that gave her consent for the child to travel between Mexico and the United States with Respondents over a period of five years. Respondent Eva Rodriguez Giles testified that Petitioner told her that she wanted the child to have more opportunity and to study in the United States and learn English, as had Petitioner. Petitioner maintained that she believed the sole reason for the child's visit to the United States was for medical treatment.
Sometime after Petitioner initiated the travel process to allow the child to travel to the United States with Respondents, Vladimir traveled to the D.F. and attempted to thwart the child's international trip with Respondents. Petitioner testified that
Vladimir warned her that Respondents were tricking her in order to obtain custody of
the child, but Petitioner stated that she trusted her parents and still planned on the child
traveling to the United States with Respondents. Vladimir presumably voiced his concerns to Respondents, as Petitioner testified that Respondent Eva Rodriguez Giles stated "if anyone tries to stop me from taking the girl I will shoot them."Petitioner left her grandmother's home for a few days, but the child remained. On July 20, 2010 Petitioner received a phone call from Respondent Eva Rodriguez Giles, who informed Petitioner that the child was in Las Vegas, Nevada with her. Petitioner reacted angrily at the fact that she was unable to bid farewell to the child. Petitioner then talked with her child, but when Vladimir began talking with the child, Respondent Giles retrieved the telephone and ended the call. On September 9, 2010 Petitioner filed a petition with the Mexican Central Authority under the Hague Convention, reporting that the child had been wrongfully removed from Mexico. Sometime in December 2010, Petitioner obtained Respondents' telephone number from a cousin in Las Vegas. Petitioner contacted Respondents who informed her that they would not be bringing the child back to Mexico. On February 8, 2011 the District Court for the Eighth Judicial District, located in Clark County, Nevada, granted Respondents petition for guardianship of the
child.
Petitioner initiated the instant action on October 5, 2011. The child was seven years old. Petitioner testified that she had no knowledge of the state court guardianship proceedings. The application reflected that it was mailed to the address of Petitioner's maternal grandmother, where Petitioner was living at the time Respondents left Mexico in the summer of 2010. However, there was no proof of service and therefore the Court could not impute knowledge to Petitioner regarding the proceeding.
The parties did not dispute that the child was habitually residing in Mexico until her removal to the United States. Thus, Mexican federal law governed with respect to the scope of Petitioner's custody rights. See A.A.M. v.. J.L.R. C., No. 11-CV-5732, 2012 WL 75049, at *9 (E.D.N.Y. Jan. 9, 2012). Under Mexican law, "[t]he exercise of parental authority ... gives rise to a duty of custody and care." The child lived with Petitioner for around two years in Mexico prior to the removal. Petitioner presented a receipt of student enrollment showing that in February 2010 she had registered the child in preschool in Mexico for the 2010-2011 school year. A few months prior to removal, in May 2010, Petitioner relocated the child from Sonara to the D.F. in Mexico. The child was in Petitioner's custody and she was caring for the child. After Respondents arrived in Mexico, Petitioner signed a travel document, applied for the child's passport, and made copies of the child's birth certificate available to Respondents. The travel authorization signed by Petitioner gave the Respondents permission to travel between Mexico and the United States with the child. Although the authorization was effective for five years, Petitioner testified that she gave permission only for Respondents to take the child to the United States in order to seek medical treatment, not to remain with the child in the United States forever. Petitioner stated that she was not distressed by the fact that the child was taken, but rather that she did not have a chance to say good-bye. Based on these facts, the Court found that the travel authorization did not relinquish Petitioner's custody rights. See Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1150 (E.D.Wash.2007). The Court found that Petitioner was exercising her custody rights in Mexico, where the child habitually resided, at the time of the child's removal to the United States on about July 20, 2010. Although the removal in July 2010 appeared to have been with the consent of Petitioner, the subsequent retention of the child was wrongful, and breached the rights of custody attributed to Petitioner under Mexican law.
The Court observed that if the petition was filed one year from the time of the alleged wrongful retention and the child has since settled into the new environment, then the Court must not order the return of the child. Hague Conv. art. 12. The petition was filed on October 5, 2011. The one year limit ran when the petitioner should have known of the wrongful removal or retention. Petitioner initiated a Hague Convention proceeding with the Mexican Central Authority on September 9, 2010 by filing a detailed claim that the child had been wrongfully removed from Mexico. Petitioner's September 9, 2010 filing, however, states the following: "I have been threatened more than once by my parents saying they would take my daughter [Child's Name Stated] away from me. I was threatened by my parents that if I or anyone tryed (sic) to stop them frome (sic) taking [Child's Name Stated] to Las Vegas N .V. they would get a gun and shoot them."These statements support a finding that in July, 2010, Petitioner believed, and was on notice, that Respondents intended to take the child and would likely not return her unless required by force. By September 2010, when Petitioner filed her complaint with the Authority, and Petitioner had had no contact with Respondents, it seems clear that Petitioner was on notice that her child was being retained by Respondents. Regardless of any misunderstanding there may have been between Petitioner and Respondent regarding the original removal of the child from Mexico by July 20, 2010, the court found that the wrongful retention of the child began no later than September 9, Under Article 12 of the Convention, the term "commencement of proceedings" means the filing of a petition in any court which has jurisdiction of the action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. Thus, Petitioner commenced the proceeding on October 5, 2011 by filing a petition with the Court.
The child currently lived in their Las Vegas home with the Respondents. Respondents lived in the same location for several years until recently moving to a smaller home to downsize financially. Respondents cared for the child for extended periods of time throughout her life. Petitioner lived with Respondents after the child's birth, and testified that Respondents took care of the child. Petitioner further testified that when she lived in Las Vegas, she moved in with her boyfriend and left the child with Respondents at their home. Petitioner agreed the child was safer with Respondents than with Petitioner and her then-boyfriend when she lived in Las Vegas. The child had a close relationship with her grandparents, having lived in their home for a majority of her life. No other family members resided in the area. Respondents represented to the Court that the child attended kindergarten last year and that she was currently in the first grade and attended school regularly. While the child initially struggled with the English language, Respondents stated that she now understood English well and spoke some English. The child testified that she enjoyed school. The majority of the child's testimony before the Court was spoken in English with out the assistance of a translator. By obtaining legal guardianship over the child, Respondents were able to make decisions regarding the child's education and welfare, and have apparently done so by ensuring the child was enrolled in, and attending school. Through the child's testimony and the Court's observations of the child, it appeared, and the court found, that the child was stable in her current environment, and it was reasonable to infer that given the passage of time and events, and a return to Petitioner would be disruptive to the child.
The Court found that Petitioner consented to the removal of the child from Mexico to the United States. Even if Petitioner had not consented to removal, she subsequently acquiesced to retention of the child in the United States. Acquiescence under the Convention has been interpreted to require either: "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070 . Despite the fact that Petitioner filed a petition for the child's return with Mexican authorities, Petitioner made no effort to locate the child. Petitioner even claimed that she filed the petition in retaliation of Respondents taking the child without allowing Petitioner to say goodbye, not to reclaim custody of the child. It took Petitioner over one year to take proper legal action in the country where she knew the child was located. The Court found that Petitioner exhibited a consistent attitude of acquiescence over a significant period of time. The Court determined that two of the affirmative defenses had been established and that the child should not be returned to Mexico pursuant to the Hague Convention.

Tuesday, March 6, 2012

Ramirez v Buyauskas, 2012 WL 606746 (E.D.Pa.) [Mexico] ["patria potestas] [well-settled in New Environment] [Wishes of the Child]

In Ramirez v Buyauskas, 2012 WL 606746 (E.D.Pa.) the District Court denied the Petition for return of his three children, filed by Francisco Javier Montes Ramirez, a Mexican citizen. The Petition was filed on October 13, 2011. Petitioner was a Mexican national who resided in Zapopan, in the Mexican state of Jalisco. Around 1992, while visiting his sister in Philadelphia, petitioner met respondent at a party. Respondent, a United States citizen, moved to Mexico to live with petitioner approximately three months after they met. They married in West Chester, Pennsylvania, on August 23, 1997 and had three children together: Francisco Javier, Junior, born January 7, 2000, age twelve ("Paco" or "Paquito") (referred to as "Paquito"); Kate Alexis, born August 14, 2003, age eight ("Katie"); and Chelsey Megan, born March 3, 2009, age two. All three children were born in the United States and were United States citizens, but, with the exception of some visits to relatives in the greater Philadelphia area, they never resided in the United States before August 2010. In Mexico, Paquito was most recently enrolled in fifth grade, and Katie was in second grade; Chelsey was too young for school. The children attended a large public school at which the school day lasted four hours. The children received inadequate medical care in Mexico because the family
lacked medical insurance. In Mexico, the children did not have regular doctors or dentists, and they only were able to see a doctor when they were sick. After Paquito arrived in the United States, respondent learned that Paquito had contracted a latent form of tuberculosis in Mexico that required nine months of antibiotic treatment.
As of June 2010, respondent had recently reconnected with her biological
father, Richard Buyauskas, who lived in Houston, Texas, after an extensive period
during which they did not communicate. On about June 11, 2010, Richard Buyauskas purchased airline tickets for respondent, Paquito, Katie, and Chelsey. The airline tickets were for round-trip travel between Guadalajara, Mexico, and Houston, Texas. Respondent and the children were to leave Mexico on July 12, 2010, and to return to Mexico on September 3, 2010. Petitioner believed that respondent was planning to travel to the United States with the children in July 2010 "[t]o visit her father, her new father, to travel here to Philadelphia to visit her mother, and to return to Mexico" on September 3, 2010. Petitioner had "a concern" about the trip because he was worried that respondent and the children might not return. Respondent had told him that she wanted the family to move to the United States, but petitioner was hesitant to agree because respondent was just reconnecting with her biological father. The Court found that Petitioner did not consent to respondent and the children moving to the
United States permanently in July 2010. Petitioner executed a document that gave respondent permission to travel outside of Mexico with the children. Respondent did not seek permission from a court to remove the children from Mexico before leaving.
On July 12, 2010, petitioner drove respondent and the children, who had only
some of their belongings with them, to the airport. Among those belongings were legal documents, including the children's birth certificates and the parties' marriage certificate. . On July 12, 2010, respondent and the children traveled from Mexico to Houston, Texas, where they stayed with Richard Buyauskas for about a month. Respondent called petitioner from Richard Buyauskas's house about a week after leaving Mexico and informed him that she intended to remain in the United States with the children permanently. Respondent told petitioner that he could not "follow them or do anything because she's in the United States and that she has
the support of her whole family." Petitioner tried to encourage respondent to return to Mexico with the children. After receiving respondent's phone call, petitioner began seeking legal assistance to regain custody.
The Court concluded that the wrongful retention in this case began on the date
July 25 when respondent called petitioner from Houston, Texas, and told him that she intended to remain in the United States with the children permanently. After the telephone call, petitioner understood that respondent did not intend to bring the children back to Mexico, he informed her that he wanted her to return, and he contacted the Mexican Secretariat to learn what legal remedies were available to him. It also found that prior to July 25, 2010, the children's habitual residence was Mexico. Before the wrongful retention, the children habitually resided in Mexico with petitioner and respondent for the children's entire lives, interrupted only by vacations to the United States. Petitioner did not consent to a permanent move to the United States; instead, he believed that respondent and the children were traveling to the United States for a vacation that was to end on September 3, 2010, with a return flight from Houston to Guadalajara. "Where the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration ... most courts will find no change in habitual residence," unless "the child's original habitual residence has been effectively abandoned by the shared intent of the parents."Whiting, 391 F.3d 549.There was no such shared intent in this case; petitioner never agreed for the children to reside in the United States, nor had he abandoned his desire for the children to return to Mexico. The Court concluded that the children's habitual residence prior to July 5, 2010, was Mexico and that petitioner and respondent had no "present, shared intention" for the children to reside in the United States. The Court therefore looked to the child custody laws of the state of Jalisco, Mexico, where the family resided prior to July 2010, to determine whether respondent breached petitioner's custody rights. The Court observed that custody law in Mexico is based on the concept of "patria potestas" (also
spelled "patria potestad"), which is: "The parents' responsibility to care for the child, reside with the child, and provide for the child's necessities, including food, education and development."The patria potestas gives a right to correct the child, the right
to control and manage any property or rights the child may have and the right to
the child's assistance. By law, the right to patria potestas belongs to both parents, but the exercise of the right, by necessity, normally involves one decision-maker. Concurrence or agreement is not required. Historically, the father had superior rights of the patria potestas, but today it is a joint responsibility. If the parents are deceased or unavailable, the paternal grandparents may exercise the patria potestas. If the paternal grandparents are unavailable, the maternal grandparents may exercise the patria potestas. March v. Levine, 136 F.Supp.2d 831, 842 (M.D.Tenn.2000) In Jalisco, Mexico, patria potestas "governs the relationship between parents and their children" as part of the CCEJ. Patria potestas 'is exerted by both parents,' ( [CCEJ Art.] 581), and lasts until it ceases under Article 597, is terminated under Article 598, or is suspended under Article 601." The Court concludedthat petitioner had custody rights under CCEJ Article 581 and that those rights had not been abrogated by any other CCEJ provision. Under Article 581, which provides that "[ p]aternal
authority/responsibility (patria potestas) is exerted by both parents or in the given case, by the surviving parent," petitioner had custody rights over all three children unless one of the three exceptions-cessation under Article 597, termination under Article 598, or suspension under Article 601-applied. No such exception was applicable here. Article 597 provides that patria potestas ceases in the event of the parent's death, "emancipation of the minor," the
minor's reaching the age of majority, or the revocation of an adoption. None of
these have occurred. Article 598 states that patria potestas "can" be terminated
in certain circumstances, but only by a judicial decree at the conclusion of a
criminal, civil, or divorce case. See CCEJ Article 599. Likewise, Article 601
requires "a judicially pronounced lack of capacity," "a judicially pronounced absence," or "a guilty verdict that imposes the suspension [of patria potestas] as part of the sentence."In this case, neither party introduced any evidence that, at any time, there have been any Mexican court orders bearing on the custody of the children or on petitioner's fitness as a parent. Therefore, petitioner had custody rights as to his three children under the law of Jalisco, Mexico, before respondent retained the children in the United States.
The Court further concluded that respondent breached petitioner's custody
rights under the law of Jalisco when she retained the children in the United
States. Under the doctrine of patria potestas, both parents must consent to the
removal of the child from the country. Because he established that respondent breached his custody rights under the law of the children's habitual residence-that is, Jalisco, Mexico-the third prong of the prima facie case was satisfied. The fourth element of a prima facie case under the Hague Convention is "whether the petitioner was exercising his or her custody rights at the time of removal or retention. The petitioner can show the exercise of custody rights by demonstrating that he or she kept or sought to keep[ ] some sort of regular contact with the child. Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights."Once it is
determined that a party had valid custody rights under the country of origin's
laws ... [t]he applicant need only provide some preliminary evidence that he or
she actually exercised custody of the child, for instance, took physical care of
the child. This element was satisfied. Petitioner lived with the children and cared for
them until they left Mexico with respondent in July 2010. Although the Court did
not credit petitioner's testimony that he was the de facto sole caretaker of the
children, the Court found that petitioner shared the responsibilities of childcare
with respondent while they lived together in Mexico. The Court concluded that petitioner has established all four elements of a prima facie case for return of a child under the Hague Convention. Nevertheless, the court found that the Article 12 "well settled" and the Article 13 "mature child objecting" affirmative defenses applied in this case.
Respondent and the children resided in Pennsylvania since late August 2010,
and petitioner knew where they were; he even communicated with them while they
were at respondent's mother's house. Although petitioner was diligent in contacting the Mexican authorities for assistance, the delay of more than fourteen months before petitioner filed this case was not attributable to concealment of the children by respondent. The Court was sympathetic to petitioner in that it took him time to gather the documents to complete the Hague Applications and the CI and Secretariat took many months to process the applications. However, precedent does not authorize tolling based on bureaucratic foot-dragging; instead, tolling is appropriate "where the parent removing the child has secreted the child from the parent seeking return," obstructing the noncustodial parent seeking return from filing suit in the appropriate jurisdiction. Furnes v. Reeves, 362 F.3d 702, 723-24 (11th Cir.2004). Because respondent did not conceal the children's location from petitioner, the Court concluded that equitable tolling was not appropriate. Thus, the Article 12 well-settled defense was available to respondent.
In concluding that the well-settled exception applied, one district court in
this circuit considered the following factors: (1) the age of the child; (2) the stability of the child's new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) the stability of the [parent's] employment or other means of support; (6) whether the child has friends and relatives in the area; ... (7) to what extent the child has maintained ties to the country of habitual residence ... [8] the level of parental involvement in the child's life[;][9] active measures to conceal [the] child's whereabouts (and the possibility of criminal prosecution related thereto) [;] and [10] the immigration status of the child and respondent. Castillo, 597 F.Supp.2d at 438 (citing, inter alia, Lops v. Lops, 140 F.3d 927, 946 (11th Cir.1998); In re Koc, 181 F.Supp.2d 136, 153 (E.D.N.Y.2001)). The court considered the evidence of these factors which overwhelmingly showed that all three children were well settled in the United States. The evidence introduced at the hearing and the Court's in camera interviews with the children demonstrated that Paquito and Katie wereintelligent children of remarkable maturity. They spoke English fluently and
eloquently despite having lived in the United States for less than seventeen months. In addition to respondent's testimony that all three children were "doing great," the Court found credible respondent's mother's testimony that the children's adjustment to the United States was "impressive" and respondent's brother's testimony that the children were doing "extremely well." The Castillo factors also uniformly supported the Court's conclusion.
The Court also concluded that respondent had proven by a preponderance of the evidence that return was not appropriate because Katie and Paquito "object[ ] to being returned and ha[ve] attained an age and degree of maturity at which it is appropriate to take account of [their] views." Convention Art. 13. The Court concluded that both Paquito and Katie objected to being returned to Mexico and were old enough and mature enough for their views to be given credence. The Court further concluded that neither child's desire to remain in the United States was "the product of undue influence." The Court took Paquito's and Katie's views into account because both children were articulate, intelligent, and mature. Both demonstrated extraordinary composure and behavior throughout these adversarial legal proceedings. In circumstances that would be expected to unnerve most children their age-including, in Paquito's case, testifying in federal district court and being subject to cross-examination-Paquito and Katie remained unflappable. During Paquito's open-court testimony and the children's in camera interviews, both made extremely favorable impressions. The evidence introduced at the hearings-including that Paquito and Katie had learned fluent English in less than two years, that both
were on the honor roll, and that they had impressed respondent's family with their adaptation to the United States-further supported the Court's conclusion that they were "of sufficient age and maturity" for their views to receive consideration. See Art. 13. Paquito objected to being returned to Mexico in open court, and both children objected during their in camera interviews with the Court, away from respondent and her family. Paquito and Katie gave articulate, rational explanations as to why they wanted to stay in the United States; Katie cited the higher quality of life, including the family's greater ability to afford food, and Paquito expressed concern about his father's "violent" nature and use of a belt to discipline him . Given their coherent explanations, their mature comportment, their clear and forthright
statements that they wished to remain in the United States, and the fact that their
desire to stay persisted even when the Court questioned them further about whether
anyone told them how to answer the Court's questions, the Court concluded that the children's preferences were not the product of undue influence. Accordingly, the Court also concluded that the mature-child-objecting defense justified permitting the children to remain in the United States.

Tuesday, February 28, 2012

Castillo v Ochoa, 2012 WL 523696 (D.Nev.) [Mexico] [Well Settled in New Environment]

In Castillo v Ochoa, 2012 WL 523696 (D.Nev.) petitioner, Jose Manuel Garza-Castillo sought the return of his child from the United States to Mexico, pursuant to the Convention. The respondent, Mellody Nallely Guajardo-Ochoa opposed the petition. The court held an evidentiary hearing on Jose's petition, and denied the Petition pursuant to the second paragraph of Article 12 of the Hague Convention. It found that Jose commenced these proceedings more than one year from the date of the wrongful removal of the child from Mexico to the United States. Mellody demonstrated, by substantial evidence, that the child was well settled in its new environment.
Neither Jose nor Mellody disputed that Mexico and the United States
are Contracting States to the Hague Convention; the child was habitually resident in Mexico prior to November 2008; On or about November 1, 2008, Mellody removed the child from Mexico to the United States; Under the laws of Mexico, Jose had rights of custody to the child before the removal; At the time of the removal, Jose actually exercised his rights of custody to the child; Mellody's removal of the child from Mexico to the United States was in breach of Jose's rights of custody. The child, who was born
in May 2006, and has not yet attained the age of 16 years. The court found that Jose did not consent to Mellody removing the child from Mexico and retaining her in the United States.
It was undisputed that Mellody removed the child to the United States in early November 2008. Jose filed his petition on March 16, 2010, more than one year after Mellody removed the child to the United States. Pursuant to Article 12 of the Hague Convention, when proceedings are commenced more than one year after the wrongful removal, a child is to be ordered returned "unless it is demonstrated that the child is now settled in its new environment. Jose argued (in opposing Mellody's motion to dismiss his petition) that the Court should toll the one-year term because Mellody concealed the child's "exact location" from him, and because he did not have an address for Mellody and the child. The Ninth Circuit has held that equitable tolling is available under the Hague Convention only where "the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return." Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008). The evidence received during the hearing indicated that Mellody initially engaged in an effort to conceal the child's location from Jose. When Mellody left in late October or early November 2008, she left a note for Jose. The note, however, did not provide any indication as to where Mellody and the child were going. In her December 28, 2008, e-mail to Jose, Mellody expressed a reluctance to disclose her location (or to return to Mexico) as she perceived a risk of losing the child to Jose. The Court could not conclude, however, that Mellody's initial act of concealing the removal and location of the child from Jose "delayed the filing of the petition for return."The Court reached this conclusion after giving "significant consideration to the overarching intention of the Convention-deterring child abduction." .Jose did not offer any evidence into the record that, subsequent to December 28, 2008, Mellody engaged in an effort to conceal her location from Jose. The evidence received during the hearing also established that Jose was not only well aware of Mellody's connections to Las Vegas (where she was raised and had numerous relatives) but that he was aware of the addresses of Mellody's relatives in Las Vegas. When Mellody left Mexico, she left behind her address book, which contained the addresses of her relatives in Las Vegas. By the end of January 2009, the names and addresses of Mellody's relatives in Las Vegas appeared in official Mexican documents as locations where Mellody could be located. The documents included the name and address of the aunt with whom Mellody stayed for the first three months in Las Vegas. The documents also included the name of the uncle with whom Mellody stayed during the early part of 2009, until July 2009 (when Mellody moved in with Melvin). Mellody was served with Jose's petition at the address where she had resided since July 2009. Further, the Court found little, if any, credible evidence to suggest that, subsequent to December 28, 2008, Jose engaged in an effort to locate the child sufficient to warrant tolling of the one-year period.. Other than his own testimony, which the court said was discredited, Jose did not offer evidence into the record of efforts made to locate the child. Also absent from the record was any explanation as to the change in circumstances resulting in Jose being able to locate Mellody and the child in the Las Vegas area in March 2010, but not prior to that date.
The child was born in May 2006. Mellody removed the child to the United States in late October or early November 2008, when the child was just less than two and one-half years old. Jose filed his petition in March 2010, and served Mellody with the petition in late April or early May 2010, when the child was just less than four years old. At the time Jose filed his petition, the child had spent a significant portion, though not the majority, of her life in the United States. At the time of the evidentiary hearing in January 2012, the child was more than five and one-half years old, and had been living in its new environment for significantly more than half of its life. Upon arrival in Las Vegas, the child resided for several months with Mellody in the home of Mellody's Aunt Dora. The child and Mellody then resided in the home of another of her aunts until July 2009. In July 2009, the child and Mellody moved into a residence of Melvin Albrego, to whom Mellody is now married. The child continued to reside with Mellody and Melvin at that residence for two years. About six or seven months prior to the hearing, the child, Mellody, and Melvin moved to a new residence, where they have since resided. Each of these residences is within the Las Vegas area. Since the end of August 2011 the child had been enrolled in and attended kindergarten in the Clark County School District. Prior to becoming old enough to attend school, while Mellody was at her place of employment, the child would be in the care of her aunt, with whom Mellody and the child were residing in April 2009. The aunt continued to provide child-care to the child after Mellody and the child moved into the residence of Melvin. The child, through Mellody, has approximately 50 extended relatives in the Las Vegas area, including her great-grandparents, great aunts and uncles, and cousins. The child regularly (often on a weekly basis) met with and participates in events with her extended relatives. The child's relatives include young children with whom the child interacted. The child often met with her extended relatives and knew them by name. Melvin, who was now married to Mellody, had between 80 and 100 extended relatives in the Las Vegas area. Typically, Melvin, Mellody and the child had a family dinner at the home of Melvin's mother on Tuesdays. The child often met with Melvin's extended family, and knew many of them by name. The child treated Melvin's extended family as if they were the child's extended family. The child had created friendships with other children who are not her relatives. The child spent time with her friends, including attending events and birthday parties. The court received testimony that, with at least one other child, the child had maintained a friendship for three years. The child and Mellody attended church two or three times each month. Mellody had been employed since April 2009 with the same employer, earning approximately $1500 to $2000 bi-weekly. Melvin was also employed.
The Ninth Circuit has indicated the following factors are to be considered in making this determination: (1) the child's age, (2) the stability and duration of the child's residence in the new environment, (3) whether the child attends school consistently, (4) whether the child has friends or relatives in the new environment, (5) whether the child participates in community or extracurricular school activities, (6) and the respondent's employment and financial stability. Mendoza v. Miranda, 559 F.3d 999, 1009 (9th Cir.2009). Further, of these, the factor that is ordinarily the most important is the length and stability of the child's residence in the new environment.
The court held that Mellody met her burden of proof of "substantial evidence of the child's significant connections" to the new environment and denied the petition.

Monday, February 27, 2012

Radu v Toder, 2012 WL 556174 (C.A.2 (N.Y.))(Romania) (Rights of Custody)

In Radu v Toder, 2012 WL 556174 (C.A.2 (N.Y.))(Not Selected for publication in the Federal Reporter) Petitioner Iulian Cristian Radu appealed from an August 3, 2011 order of the District Court denying his petition to compel the return of his son, L.R., to Romania pursuant to the Hague Convention. Radu argued that his ex-wife, respondent Petruta Toader, wrongfully moved L.R. from Romania to the United States in violation of Radu's "rights of custody" under the Hague Convention. The Court of Appeals affirmed. It reviewed a district court's factual determinations in cases arising under the Hague Convention for clear error and its legal conclusions de novo. (Citing Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001). It observed that the Convention defines "rights of custody" to include "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."Hague Convention, art. 5. The Convention distinguishes between rights of custody and rights of access. The latter is also a defined term under the Convention and means "the right to take a child for a limited period of time to a place other than the child's habitual residence." ICARA similarly defines "rights of access" to mean "visitation rights." 42 U.S.C. 11602(7). A parent has a "right of custody" if his or her consent is legally required before the other parent may move the child to another country (a "ne exeat " right), and a breach of such right gives rise to a return remedy under the Convention. (Citing Abbott v. Abbott, 130 S.Ct. 1983, 1992 (2010). By contrast, "[t]he Convention provides no return remedy when a parent removes a child in violation of a right of access." Radu has no ne exeat right. Under Romanian law, a child's domicile is established as the domicile of the parent to whom the child was entrusted by a final and irrevocable court decision. Decision No. 922/2009. If parents do not share the same domicile, then the child's domicile is established by common agreement of the parents, or, absent such agreement, by a court. But that provision does not govern a situation in which sole custody of the child has been granted to one parent. Because the divorce decree entrusted sole custody of L.R. to Toader, giving Radu only a right of visitation, Toader did not need Radu's consent to change L.R.'s domicile. While L.R.'s removal may have violated Radu's rights of access, it did not violate any rights of custody for purposes of the Convention. This interpretation of Romanian law was reinforced by an April 2011decision of a Romanian court, which denied Radu's efforts to compel the return of L.R. and noted that Radu could not seek L.R.'s return because custody of the child had been entrusted to Toader. (Citing Diorinou v. Mezitis, 237 F.3d 133, 142 (2d Cir.2001) ("American courts will normally accord considerable deference to foreign adjudications as a matter of comity. In particular, we have observed that comityis at the heart of the Hague Convention.")

Tuesday, February 21, 2012

Oddy v Morris, 2012 WL 464227 (D.Hawaii) [United Kingdom][Grave Risk of Harm]

In Oddy v Morris, 2012 WL 464227 (D.Hawaii) Christopher Oddy ("Petitioner") filed an Emergency Verified Petition for Return of Children to the United Kingdom. Petitioner and Respondent were married on April 11, 2003 in the United Kingdom; Petitioner is a citizen of the United Kingdom and Respondent is a citizen of the United States. The children were born in the County of Poole, United Kingdom, and are citizens of the United Kingdom and the United States. Petitioner and Respondent were divorced in the Bournemouth County Court in the United Kingdom on October 7, 2009. The Bournemouth County Court did not make any orders with respect to parental responsibility, residence or contact at the time of the parties' divorce. Petitioner stated that, under English law, specifically the Children Act 1989, he and Respondent share equally parental responsibility of both
children. According to Petitioner, the following acts took place in 2010 and 2011: On March 17, 2010, the Mother [Respondent] had filed an application in the United Kingdom's High Court of Justice, Family Division, Bournemouth District Registry (the "English Court"), requesting permission to permanently remove the children from the United Kingdom. A trial was scheduled for December 2 and 3, 2010 on the Mother's application. As a result of the Mother's application for permanent removal having been filed, the English Court ordered that a report be prepared by the Children and Family Reporter, Mrs. Pat Holmes. Mrs. Holmes prepared her report dated October 8, 2010 and submitted it to the English Court. After the report was submitted to the English Court, a hearing was held before His Honour Judge Meston Q.C. on October 25, 2010. Judge Meston had reviewed both parties' submissions, reviewed the report prepared by the Children and Family Reporter and had heard from counsel for both parties with respect to agreements reached between the parties. At the hearing on October 25, 2010, the English Court issued a Residence and Contact Order on October 25, 2010. . The Residence and Contact Order provided hat the children shall reside with the Mother in the United Kingdom and set out a detailed and extensive schedule of contact for the Father in the United Kingdom. No order was made with respect to the parents' ex lege joint parental responsibility pursuant to the Children Act 1989. The Residence and Contact Order provided hat the Mother's application to permanently remove the children from the United Kingdom would be withdrawn and that the trial on her application scheduled for December 2-3, 2010 be vacated.
Thereafter the parties functioned pursuant to the Residence and Contact Order, which did not address the issue of parental responsibility, and both parties continued to share parental responsibility under the Children Act. Because the parties were both the parents of the children and no court suspended or otherwise terminated either party's parental responsibility, the parties continue to share parental responsibility for the children under the Children Act by operation of law. The Residence and Contact Order provides as follows with respect to removing the children from the United Kingdom: "WARNING: Where a Residence Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or the leave of court. However, this does not prevent the removal of the child for a period of less than one month by the person in whose favor the Residence Order is made (Sections 13(1) and (2) Children Act 1989). It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without the leave of the court." After the issuance of the Residence and Contact Order, the parties and children continued to reside in the United Kingdom and followed the schedule for residence and contact set out in the Residence and Contact Order. The Father was scheduled to have his regularly scheduled time with the children on July 30, 2011 and was also scheduled to begin his summer holiday time with the
children on August 1, 2011. When the Father went to pick up the children on July 30, 2011, he discovered that the Mother's home was completely empty. Immediately upon discovering that the Mother's home was completely empty, the Father began searching for the children and reaching out to family and friends for help locating his daughters. The Father learned from one of the Mother's friends that the Mother had taken the children to Hawaii and later confirmed from other friends and relatives that the Mother had taken the children to Hawaii.
The testimony and evidence presented at the hearing supported these facts as set forth in the Petition. The Court found that Petitioner established that he had parental responsibility for the children and did not consent to their removal from their habitual residence in the United Kingdom. Respondent did not obtain leave of court before she removed the children from the United Kingdom, and, since the removal of the children, Petitioner had not acquiesced to their removal or retention.
Based on the evidence presented, the Court found that Respondent had not met her burden of establishing that the children were at grave risk of harm if returned to the United Kingdom. The evidence that Petitioner was physically, verbally, and mentally abusive to Respondent during the course of their marriage and thereafter was troubling. Respondent testified regarding Petitioner's history of alcohol abuse and anger management issues, and its effect on the family. The Court found Respondent's
testimony credible with respect to her fear of Petitioner's angry outbursts and threats of violence against her and her friends. Respondent also presented credible evidence that the children witnessed verbal confrontations and disagreements between their parents, which may have affected the children psychologically and emotionally. Specifically, a 2006 incident in which Petitioner physically kicked and struck Respondent in front of the oldest child and destroyed household property, and subsequently pleaded guilty to breaching the peace and criminal property damage, and an April 2011 incident at Waterloo Station in which Petitioner verbally threatened Respondent and a third-party in front of the children during a custody exchange. The Court also heard testimony regarding an April 2011 incident during which the younger child was injured while in Petitioner's care. The parties disputed the cause and severity of the injury to the child's elbow. Respondent maintained that Petitioner yanked
the child up by her arm as she resisted having her diaper changed; Petitioner contended the injury was the result of normal play with the children. Respondent faulted Petitioner for waiting several hours between the time of the injury and when he eventually sought medical care for the child the next morning. A hospital record indicated the following history of the presenting complaint: "[p]laying when getting nappy changed L. arm around her elbow very painful and not moving it, very upset in triage." The Court found that the parties' respective views of the incident were reconcilable based on the testimony and evidence presented at the hearing, and credited each. Respondent also recounted another recent incident in which the older child became ill while playing outside with Petitioner during poor weather conditions, and detailed her concerns regarding Petitioner's parenting capabilities. It was clear that the parties' relationship was troubled both during and after their marriage, when Petitioner was abusive toward Respondent, and that Respondent believed that matters were deteriorating in the months before she removed the children. The Court, however, found that, as troubling as this behavior may be, Respondent had not established for purposes of the article 13(b) analysis that the children would suffer "serious abuse that is a great deal more than minimal." Gaudin, 415 F.3d at 1035; see also Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.2000) (stating that a husband's "verbal abuse and an incident of physical shoving" directed at his wife, while regrettable, was insufficient to establish a "grave risk" of harm to the child, especially where there was no allegation that the father had ever abused the child, either physically or psychologically). The Court considered the alleged psychological harm suffered by the children and found that, while regrettable and unacceptable, any such harm did not to rise to the level required for sustaining an article 13(b) exception. See Whallon, 230 F.3d at 460 ("The logic, purpose, and text of the Convention all mean that such harms are not per se the type of psychological harm contemplated by the narrow exception under article 13(b). To conclude otherwise would risk substituting a best interest of the child
analysis for the analysis the Convention requires. This would undercut the Convention's presumption of return where rights of custody have been violated....").
Based on the foregoing, the Court granted the Petition.

Demaj v Sakaj, 2012 WL 476168 (D.Conn.) [Italy][Disclosure]

In Demaj v Sakaj, Slip Copy, 2012 WL 476168 (D.Conn.) On February 11, 2009, Esheref Demaj, filed a petition against Freda Sakah, pursuant to the Hague Convention for the immediate return of his three minor children to Italy. Petitioner claimed she illegally and wrongfully removed the minor children from Italy on or about September 7, 2007, in violation of Petitioner's custodial rights under Italian law. On January 25, 2012, Petitioner filed a Motion to Compel Production of Documents. Immediately following the commencement of this action.
Both parties acknowledged that when Petitioner was in Connecticut in January 2010 to visit his children, Petitioner, while at a Petco store, made a statement in his native Albanian, according to Petitioner, "curs[ing]", or according to Respondent's minor child, Kimberly to whom Petitioner was speaking, "threaten[ing] to kill" Respondent and her mother. Thereafter, Respondent filed a police report, a warrant was issued for Petitioner's arrest, and a mandated reporter made a referral of child abuse to the Department of Children and Families ["DCF"], which resulted in a substantiated report. According to Petitioner, on August 19, 2010, Respondent applied for a U-Visa. A U-Visa provides temporary immigration benefits to aliens who are victims of qualifying criminal activity, and to their qualifying family members, as appropriate. See http://www.uscis.gov/i-918 (Last visited Feb. 8, 2012). According to Respondent, by the summer of 2010, Respondent and the minor children had lived in this country for almost three years and their original visas had expired, so as to remain here legally, Respondent applied for nonimmigrant status which was granted to her and the children in July 2011. With the approval of their new nonimmigration status of legal permanent residents of the United States, Respondent and the children were issued Social Security cards and Employment Authorization cards, which Respondent used to obtain a Connecticut driver's license, and to register the children for Connecticut's Supplemental Nutrition Assistance Program and the healthcare program. Petitioner contended that he did not learn of Respondent's change in immigration status until December 30, 2011, in response to Petitioner's filing a motion to stay in the state court divorce proceedings that Respondent initiated in 2009. Petitioner contended that upon information and belief, Respondent used her passport, to which she was not supposed to have access, in accordance with this Court's order, to apply for a U-Visa, and, according to Petitioner, Respondent's immigration status wasrelevant to this case. Further, Petitioner contended that these documents were necessary for Petitioner to address Respondent's use of the "well-settled" defense at trial, as such documents will include Respondent's allegations of abuse which Petitioner will use in his case-in-chief, and to impeach Respondent by questioning the credibility of any testimony she may provide at trial. Accordingly, Petitioner requested the production of documents concerning Respondent's U-Visa application.
In her brief in opposition, Respondent argued that all of the appropriate documents, which documents include all visas, social security cards, and authorizations to work, had been produced, and the other documents withheld are those which would violate the attorney/client privilege or would violate the intent of protections found in 8 U.S.C. 1367. Additionally, Respondent asserted that her immigration status was not an important factor to the "well-settled" defense, and Petitioner had no standing to second-guess the Department of Homeland Security ["DHS"] and its decision to grant Respondent a U-Visa. Petitioner contended that courts have found "immigration status to be of utmost importance to establishing the Article 12 well settled defense
In Petitioner's Motion, he sought to compel production of documents responsive to Request Nos. 1, 3, 4 and 5, which document requests sought documents or correspondence related to Respondent and the children's current immigration status (No. 1), and related to any changes made to their immigration status since arrival in the United States (No. 3), as well as documents and correspondence, including, but not limited to applications, affidavits and all supporting documents submitted to the Department of Homeland Security or any other Federal or State agency or officials related to their immigration status or the change therein (No. 4), and any documents or correspondence between Respondent and the Department of Homeland Security or any other Federal or State agency or officials.
The Court observed that at issue in this was the application of the "well-settled" defense, which defense must be established by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B) . The Convention itself does not define what constitutes a child being "settled in its new environment." Hague Convention, art. 12. However, the U.S. State Department has established that "nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof" in asserting the well-settled defense. Several factors are considered in determining whether or not a child has become settled: the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's
employment[;] and whether the child has friends and relatives in the new area. Lozano v. Alvarez, No. 10-CV-8485(KMK), 2011 WL 3667444, at *28 (S.D.N.Y. Aug. 22, 2011) (citations omitted); In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001) (same); see also In re: Filipczak, No. 11 Civ. 1178(VM), 2011 WL 6980845, at *7 (S.D.N.Y. Dec. 23, 2011), citing Lozano, 2011 WL 366744, at *28; Matovski v. Matovski, No. 06 Civ. 4259(PKC), 2007 WL 2600862, at *13 (S.D.N.Y. Aug. 31, 2007)(multiple citations omitted)(same); Reyes Olguin v. Cruz Santana, No. 03 CV 6299 JG, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005) (citations omitted)(same);
Diaz Arboleda v. Arenas, 311 F.Supp.2d 336, 343 (E.D.N.Y.2004) (citation
omitted)(same). To reach a finding of settled, the Court must be presented with substantial evidence of significant connections to the new environment. Koc, 181 F.Supp.2d at 152 (internal quotations & citation omitted).
In the bulk of cases in which immigration status is considered, it is done so after an assessment of the foregoing factors, and it is considered as only one element among many pointing either in favor of a finding of significant ties to the United States, or in finding a lack of significant ties to the United States. The Court pointed out that U.S. District Judge Kenneth M. Karas stated, "[c]ourts that have found that a child was not settled have tended to do so where ... a child has moved frequently and therefore not had a stable living situation." Lozano, 2011 WL 3667444, at *30 (citations omitted); see also Filipczak, 2011 WL 6980846, at *7-8 (immigration not considered but finding of not settled when lived in multiple cities and attended multiple schools, caring and intact family in both countries, and guardian ad litem testified children are readily adaptable to any environment). In Lozano, while Judge Karas noted concern that both the Respondent and the child had overstayed their visas, and thus were here illegally, he considered the other factors referenced above which evidenced their connection to the United States, before concluding that the child was, in fact, well settled in her current environment. Lozano, 2011 WL 3667444, at *31. Following the Ninth Circuit's lead, see In re B. Del C.S.B., 559 F.3d 999, 1010-14 (9th Cir.2009), "the idea that immigration status should render an otherwise settled child not settled" was
rejected, and Judge Karas concluded that "immigration status should only be a significant factor in the settled analysis if there is an immediate concrete threat of deportation." Lozano, 2011 WL 3667444, at *30,citing B. Del C.S.B., 559 F.3d at 1010-14. The rationale for this position, with which the Court agreed, was grounded in the language of the Convention. The Convention is concerned with the present as the Article 12 defense applies to a child "now settled in its new environment[,]" and the determination of the child's future well-being is left to the court conducting custody
proceedings. See Hague Convention, art. 12 ; B. Del C.S.B., 559
F.3d at 1013.
Respondent represented to the Court that she applied for and was granted nonimmigrant status in July 2011. An individual granted U Nonimmigrant status may, after threecontinuous years of physical presence in the United States, apply for a green card. Even if the Court were to consider immigration status as a "most important factor" in the "well-settled" defense, the Court need only consider the status, which status was evident from the existence of the U-Visa. Thus, to the extent not already produced, on or before February 16, 2012, Respondent was directed to produce copies of their current visas.
Petitioner requested Respondent's copies of all documents that would be barred from disclosure by "the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of the Department of Homeland Security, or Department of State" under 8 U.S.C. 1367(a)(2), but to the extent they were in Petitioner's possession, such disclosure, while arguably running afoul of the letter of this section, was not prohibited by this statute. Although Petitioner asserted that he sought this information to determine whether the statements made in the U-Visa application were consistent with the evidence presented, Petitioner also claimed that Respondent secured her change in immigration status through fraud, which he sought to establish at trial. Thus, while Petitioner may need the documents underlying and related to Respondent's U-Visa application as they may be relevant to her credibility and may be used to impeach her, in order to use these documents in that manner, Petitioner must seek to undermine the decision of DHS by challenging the veracity of Respondent's statements, upon which both DHS and law enforcement relied, thereby, interfering with Respondent's immigration case. Petitioner's Motion to Compel production of documents responsive to Request Nos. 4 and 5 was denied.

Lopez v Villareal, 2012 WL 458490 (D.Nev.)) [Mexico] [Consent or Acquiescence]

In Lopez v Villareal, 2012 WL 458490 (D.Nev.)) Jorge Ramon Guadalupe Rivera Lopez, has filed a verified petition pursuant to the Hague Convention and respondent, Janet Nieri Villareal, aka Janet Patchett, moved to dismiss or stay this action. Jorge and Janet married in Mexico in April 2003. A son was born to the couple in November 2003. Jorge and Janet divorced, in Mexico, in August 2009. Janet was awarded physical custody of their son. Jorge was granted the right to visit and spend time with their son on any day of the week. Jorge could take their son outside the city only with the prior written consent of Janet. Janet was required only to inform Jorge when she intended to take their son outside of the city, informing him of the city, address, and specific time that would be spent outside of the city. Until late-December 2009, Jorge, Janet, and their son continued to reside in Mexico. In December, Jorge consented to Janet traveling with their son to the United States. Janet and their son entered the United States on December 26, 2009. By January 15, 2010, Janet informed Jorge that she would not be returning to Mexico. Jorge alleged that he did not consent to their son remaining in the United States after January 15, 2010. On December 15, 2011, Jorge filed the present petition pursuant to the Hague Convention and the International Child Abduction Remedies Act, seeking the return of their son to Mexico.
Janet's response to Jorge's petition raised a single argument-consent or acquiescence under Article 13-that rests solely upon the allegations of the petition. She argued that, pursuant to those allegations, Jorge could not obtain the relief requested as a matter of law. She pointed to Jorge's admission that in December 2009 he consented to her travel to the United States with their son and his concession that he was aware in January 2010 that she would not be returning to Mexico. She further noted that Jorge did not file the present petition until December 2011. Janet argues that Jorge consented to their son's travel to the United States. She further argued that Jorge's knowledge that Janet would not be returning to Mexico with their son, and his lack of action in attempting to obtain the return of their son establishes that he acquiesced to Janet's retention of their son in the United States.
The Court disagreed that Jorge alleged facts establishing that he consented and acquiesced to Janet's retention of their son in the United States. He alleged facts indicating that he consented to Janet traveling to the United States with their son. Absent from the petition, however, was any allegation suggesting that Jorge's consent was for Janet to travel to and remain in the United States, and indefinitely retain their son in the United States. Rather, Jorge alleged in the petition that Janet
indicated that the purpose of the travel was for Janet to visit her sister, and that Janet intended to return to Mexico with their son by January 7, 2010. Jorge did not allege that he consented to Janet retaining their son in the United States after January 15, 2010.
Jorge's admission that he knew Janet was retaining their son in the United States in January 2010, and his filing of the petition in December 2011, did not establish as a matter of law that he acquiesced in Janet's retention of their son in the United States after January 2010. Janet did not direct the Court's attention to any authority suggesting that a delay of 23 months between obtaining knowledge of the wrongful retention and the filing of a Hague petition establishes, as a matter of law, acquiescence in the wrongful retention. This is particularly true where, as here, Jorge alleged that subsequent to Janet's wrongful retention of their son he has sought the assistance of the Central Authority of Mexico, the Mexican Courts, the United States State Department, and local law enforcement officials in Las Vegas in obtaining the return of their son to Mexico. Accordingly, as Jorge had not alleged facts establishing, as a matter of law, that he either consented or acquiesced to Janet's retention of their son in the United States after January 15, 2010, the Court denied the motion to dismiss Jorge's petition.