Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) [El Salvador] [Habitual Residence] [Petition dismissed]

In Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) the Court granted the Respondents motion to dismiss the petition for return of the child to El Salvador.

Petitioner Noemy Elizabeth Membreño Peralta was the mother of a ten-year-old child, GM. GM’s father, Eli Escobar Garay was not a party to this dispute. The Parents resided in El Salvador. Respondent Guadelupe del Carmen Escobar Garay was GM’s paternal aunt. Respondent resided in the United States. GM was born in El Salvador on January 14, 2007, and lived with Petitioner in El Salvador until 2016. In early 2016, the Parents agreed to leave El Salvador and travel to the United States with GM and Son. The Parents intended for Garay and GM to travel separately from Petitioner and Son. On approximately March 14, 2016, Garay and GM left El Salvador and traveled to the United States. Approximately one month later, Petitioner and Son left El Salvador, intending to travel to the United States. On approximately March 25, 2016, after Garay and GM entered the United States, United States immigration officials detained Garay and GM for traveling illegally. While Garay and GM were being detained in the United States, Petitioner and Son were stopped in Mexico (in route to the United States) and deported to El Salvador. Petitioner alleges that, because of Garay and GM’s detention, Petitioner gave Respondent—who was residing in the United States—temporary authorization to retain GM so that United States immigration officials would release GM to Respondent. Following GM’s release to Respondent, Garay was deported to El Salvador. GM has since resided with Respondent in the United States.  On April 26, 2016, Petitioner filed a lawsuit contending Respondent was wrongfully retaining GM in the United States and asking the Court to order the return of GM to El Salvador.  Respondent moved to dismiss Petitioner’s lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1). After an evidentiary hearing the court granted the motion.

The district court found that Petitioner’s admission that the Parents intended the family to remain in the United States indefinitely strongly indicated the Parents had a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Mozes, 239 F.3d at 1077 (recognizing a court can find mutual abandonment based on the settled mutual intent to stay in a separate country indefinitely). The Parents testified to bringing their passports, personal identification, and other documents with them as they traveled from El Salvador to the United States. Petitioner testified that she and Garay each quit their respective jobs in anticipation of leaving El Salvador. This testimony also indicated a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Delgado v. Osuna, 837 F.3d 571, 579 (5th Cir. 2016); see also Berezowsky v. Ojeda, 765 F.3d 456, 474 (5th Cir. 2014). The Court found the evidence conclusively established the Parents’ shared intent to abandon El Salvador and permanently relocate GM to the United States.

Petitioner alleged that, regardless of the Parents’ previous intentions, after the Parents were deported to El Salvador, their shared intention shifted to reestablishing GM’s permanent residence in El Salvador. However, by that time, GM had already been relocated to the United States and retained by Respondent. See Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993) (finding there must be a change in geography to establish a new habitual residence). Thus, at the time Respondent retained GM, El Salvador had been abandoned as GM’s country of habitual residence. Petitioner has therefore failed to meet her burden of showing that GM’s retention was wrongful. Accordingly, the Court lacked subject matter jurisdiction over Petitioner’s lawsuit, and Respondent’s motion to dismiss was granted.

Neumann v Neumann, 2018 WL 1026472 (E.D. Michigan, 2018)[Mexico] [Age and Maturity defense] [grave risk of harm] [Petition denied]

In Neumann v Neumann, 2018 WL 1026472 (E.D. Michigan, 2018) the matter was before the Court after remand from the United States Court of Appeals for the Sixth Circuit.

Steven and Julie were married in Michigan in 1997 and had three children: JMN, JSN, and MKN.  The family lived together in Michigan until February 2011, when they moved to Mexico after Steven was assigned a new position by his employer, Ford Motor Company. The assignment was originally scheduled to end in 2014, but was subsequently extended until 2017. Julie fled to the United States with the three children after a traumatic domestic dispute in December 2014.  Steven subsequently filed a petition seeking an order directing Julie to return the children to Mexico. On May 17, 2016, the Court granted Steven’s petition, holding that, at the time of the decision, Mexico was the children’s country of habitual residence and that, despite Steven’s behavior prior to his family’s departure from Mexico, Julie had not demonstrated by clear and convincing evidence that the children would be subject to a grave risk of harm or an intolerable situation. The Court also held that Julie failed to demonstrate that (i) the children genuinely objected to return; (ii) they possessed the maturity to make any objections; or (iii) that Steven consented to their removal from Mexico. Id. at 857-860. The Court ordered Julie to return the children to Mexico by June 30, 2016.  See Neumann v. Neumann, 187 F. Supp. 3d 848, 851 (E.D. Mich. 2016), vacated, 684 F. App’x 471 (6th Cir. 2017). The Sixth Circuit stayed that order pending appeal.

During the December 1, 2016 oral argument in the Sixth Circuit, Steven’s counsel stated that Steven had recently relocated to Michigan. This development, was characterized as a “material change in circumstances” by the Sixth Circuit. It upheld the District Court’s ruling that Mexico was the children’s country of habitual residence, and that Julie had violated Steven’s custodial rights when she took the children to Michigan on December 28, 2014. The court then framed its remand as follows: Our remand is otherwise general. The district court should determine whether or not clear and convincing evidence shows that returning the children now presents a “grave risk” of “physical or psychological harm” or “an intolerable situation.” If so, then the district court has discretion to deny return, or to grant return subject to undertakings that would substantially lessen the risk. If the court determines that there is not a sufficient showing of a grave risk, the court should order return.

          Upon remand the district court conducted an evidentiary hearing on the issue of Steven’s domicile, and the Court appointed Dr. Jack Haynes, Ph.D., as an evaluating psychologist and expert witness, the role he had played earlier in the case. The Court charged Dr. Haynes with evaluating the parties and the minor children, as well as interviewing the eldest daughter, who was no longer subject to the Convention. Dr. Haynes delivered a report to the Court on January 30, 2018, in which he summarized his findings. Dr. Haynes, inter alia, concluded that “[t]he children strongly and genuinely object” to return. Their objections were based on the fact that a return to Mexico “would be disruptive to their school education and sports practice, training, and games.”  Dr. Haynes stated that they also objected because they no longer identify with Mexico, and because the return would be for an indeterminate time. Regarding age and maturity, Dr. Haynes noted that the boys (one fourteen and one fifteen) “are more mature than most children their age,” and that “they have demonstrated the maturity to have their views considered.” He also stated his belief that none of the children had been coached prior to their interviews.  Dr. Haynes next opined on whether return to Mexico would expose the children to a grave risk of physical or psychological harm or place them in an otherwise intolerable situation. He concluded that risk of harm was “significant,” reasoning that that both parents lived in the United States, and the boys were unable to provide for themselves alone in Mexico.  He noted that neither Julie nor Steven would be able to stay in Mexico for an extended period of time, and that it is unlikely the grandparents would be able to care for them in Mexico due to their advanced age.

The Court conducted an in-camera interview with each child. both boys expressed intense emotions on a prospective return to Mexico. MKN stated that he found the situation “shocking” and “confusing.” JSN shared a similar sentiment when he stated “if he wants to see us so bad, then why wouldn’t he let us stay here.”

The district court rejected Julies contention that because both parties were domiciled in Michigan, the action was moot. Julie relied on Von Kennel Gaudin v. Remis (Gaudin I), 282 F.3d 1178, 1183 (9th Cir. 2002), which held that the Hague Convention “cannot be invoked when the petitioner moves permanently to the same country in which the abductor and the children are located.” The Court did not find its reasoning persuasive. “Article III of the Constitution restricts the power of federal courts to ‘Cases’ and ‘Controversies.’ ” Chafin v. Chafin, 568 U.S. 165, 171 (2013). “The case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. In Chafin, on appeal, the Eleventh Circuit held that an appeal of a return order becomes moot where the child has been returned to the foreign country. The court reasoned that it “became powerless to grant relief.” The Supreme Court disagreed. Although the Court did not address Gaudin, it effectively rejected the decision.

The Court began by determining that the children objected to return, and that they were of sufficient age and maturity to have their views considered. The Court found that the children’s views were properly characterized as legitimate objections to being returned to Mexico, as opposed to a wish or preference to remain in Michigan. The boys both gave particularized reasons why they objected to return, evidencing a thoughtful analysis about why they should remain in Michigan, and conversely, why Mexico would not be a good environment for them. In their meetings with Dr. Haynes, the boys discussed the stability of their life in Michigan, including, “their school education and sports practice, training, and games.” This was reiterated to the Court during its in-camera interviews, where both boys expressed a strong desire for their Michigan school in light of its academics, athletics, and its devotion to their Catholic faith. They also focused on the support system present in Michigan, including their older sister, their grandmother, other extended family, and friends. Their objection to removal from Michigan was strengthened by their statements regarding Mexico. In addition to noting that their school, sports, and faith would be disrupted by a return to Mexico, both boys noted that their father no longer lived in Mexico, and that it was unclear whether he would even be able to return there with them, in light of his relocation to Ford’s Michigan headquarters. They both expressed fear of being sent back to Mexico without clarity regarding who would be responsible for them. Even if Steven was able to move to Michigan, the boys expressed concern regarding his ability to care for them in light of his failure to seek treatment or engage in meaningful reunification therapy with them.

Despite Steven’s claims to the contrary, the Court held that he was now domiciled in Michigan. The children had a well-grounded fear that they would be returned to a country that their father has vacated. While Steven indicated that he would relocate to Mexico if the Court orders return of the children, this did not meaningfully assuage their fear. There was no assurance that Steven would apply to Ford for permission to work permanently in Mexico. And there was no assurance that Ford would allow such an arrangement. The children’s fear regarding his ability to care for them was also supported by the record. They both noted in the Court’s in-camera interviews that Steven has not sought meaningful treatment since the December 2014 incident. This was supported by Dr. Haynes’s report. The report stated that “Steve’s essentially untreated substance abuse and its implications is a central issue in this situation.” Finally, the Court noted that there was no evidence that the boys’ objections were the product of undue influence by Julie, or that Julie engaged in parental alienation. Having found that the boys genuinely object to being returned, the Court determined they were of sufficient age and maturity, such that it is appropriate for the Court to take account of their views. Courts have recognized that “it would be very difficult to accept that a fifteen-year-old should be returned against its will.” Felder v. Wetzel, 696 F.3d 92, 101 (1st Cir. 2012)

In light of all fact and circumstances, the Court held that Julie had shown by a preponderance of the evidence that the boys genuinely objected to return, and that they possessed sufficient maturity to take account of those opinions. As a result, the Court found this basis, by itself, sufficient grounds for declining return of the children.

The Court found that, in addition, Julie had proven by clear and convincing evidence that ordering return would expose the children to a grave risk of physical or psychological harm. The Court’s finding of grave risk rested on the uncertainty the children would face in Mexico following Steven’s permanent relocation to Michigan. If the Court were to order return under the present circumstances, it would be ordering them to live in a country with no parental supervision. The Court believed it obvious why such an order would place the boys in grave risk of harm: they would be forced to navigate a foreign country, where they do not fluently speak the language, all while under the age of sixteen. While the Court believed the children were now mature enough to object to return, it certainly did not believe the boys were capable of providing for themselves abroad.

The Court did not believe that there were any enforceable undertakings that could substantially lessen the risk of harm that would befall the children if ordered returned to Mexico. As a result, the Court declined to order undertakings.

The court denied Stevens requests that the Court enforce orders entered by the Mexican court on April 7, 2017, and April 26, 2017 which granted Steven parenting time every other weekend in Michigan, and also directed Steven and the children to participate in reunification therapy every Tuesday and Thursday. The Court declined to opine on whether the Convention and ICARA grant a judicially enforceable right of access.

Leonard v Lentz, 2017 WL 6887535 ( N.D. Iowa, 2017)[Turkey] [Exercise of Rights of custody] [Petition denied]

In Leonard v Lentz, 2017 WL 6887535 ( N.D. Iowa, 2017) the District Court denied the  Petition by Ozgur Can Leonard for return of his three children to the Republic of Turkey finding that he did not establish a prima facie case..

Both petitioner and respondent were born in Istanbul, Turkey. Petitioner is a dual citizen of Turkey and the United States.  Respondent is a United States citizen but was raised in, and spent most of her life in, Istanbul, Turkey. . On May 29, 2014, petitioner and respondent were married in Turkey. Petitioner and respondent established their marital home in Gokceada, a Turkish island comprising part of the Canakkale Province... In March of 2015, while residing in Gokceada with petitioner, respondent gave birth to petitioner’s son, I.Y.L. In 2016 respondent gave birth to E.M.L. and S.M.L. Following respondent’s discharge from the hospital after giving birth, respondent chose to reside with her parents, rather than return to Gokceada. (Id.).

Immediately following their birth, E.M.L. and S.M.L. were admitted to the Newborn Intensive Care Unit (“NICU”). (Id.). E.M.L. was diagnosed with End–Stage Renal Disease (“ESRD”) and required surgery. On June 14, 2016, respondent filed for divorce in the Istanbul 15th Family Court (“Turkish Family Court”).  In July of 2016, respondent sought an ex parte protective order against petitioner from the Turkish Family Court, alleging that petitioner was not caring for the children, was harassing her with phone calls and messages, and was pressuring her to return to Gokceada from Istanbul. (Id.). On July 11, 2016, the Turkish court issued a protective order, providing, inter alia, that petitioner not approach respondent’s place of residence and cease communications with respondent. (Id. at 10; see also Ex. 6, Doc. 85–7). The protective order did not place any limits on petitioner’s contact with the children. Respondent applied for United States passports for her children and on July 15, 2016, United States passports were issued to all three children. On August 12, 2016, the Turkish Family Court issued a temporary injunction, ordering the children to remain in the jurisdiction during the pendency of the divorce proceedings and further issued an order to all borders to prevent the children’s removal from the jurisdiction without petitioner’s consent. Respondent contended that when she removed the children from Turkey on August 13, 2016, she was unaware of the ne exeat order, and no evidence has been presented to the contrary. On or about August 13, 2016, respondent traveled to the United States with the children, removing them from the jurisdiction. On August 24, 2016, petitioner submitted a request to return the children to the United States Department of State pursuant to the Hague Convention.

 Upon coming to the United States, respondent brought the children to Iowa and had been residing in Eagle Grove, Iowa since... E.M.L. was thereafter admitted to the University of Iowa Health Care system (“UIHC”) in Iowa City, Iowa where she remained from August 15, 2016, through August 18, 2016. On August 21, 2016, respondent emailed petitioner and indicated that “E.M.L.... is just as active and really on par as far as development [when compared to S.M.L.].” (Id.). Following this brief communication, respondent deleted her email account. UIHC records from August 25, 2016, corroborate respondent’s statement to petitioner.  In October of 2016, E.M.L. was again hospitalized at UIHC and had a feeding tube inserted; E.M.L. had also contracted peritonitis.³  Petitioner has requested the Turkish Family Court to review the medical records in this case to determine the severity of E.M.L.’s medical condition. Since early 2017, petitioner has been in contact with one or more of E.M.L.’s physicians at UIHC regarding E.M.L.’s health. The divorce proceedings in the Turkish Family Court were ongoing and no formal divorce decree or custodial order had been entered.

The Court found that the children were habitual residents of Turkey and because under Turkish law, parents of a child share custody of the child “together as long as marriage lasts.” petitioner did have custodial rights at the time of the children’s removal and continued to have those custodial rights during their retention in the United States.

The Court found that custodial rights bestowed upon petitioner were governed by Turkish law, as set forth in the Convention. Petitioner only alleged he was exercising two such custodial rights at the time of the children’s removal from Turkey: 1) the right to dictate, together with the child’s mother, whether the child may leave the home; and 2) the right to decide the child’s religious education. (Turkish Civil Code (providing “[t]he child cannot leave the house without taking his/her parents’ consent ....” and “[p]arents shall have the right to decide on the child’s religious education.”)).

The Court pointed out that it was bound by Turkish law with respect to whether petitioner was exercising his custodial rights. Larbie, 690 F.3d at 307. Under Turkish law, when one parent is deprived of custody of his children, that parent continues to bear the obligation to provide financial support for the children’s care and educational expenses. It follows that providing financial support for one’s children is an obligation under Turkish law, rather than a custodial right. Thus, petitioner’s willingness and seeming ability to provide financial support for his children could not provide support for his exercise of custodial rights.

Bearing in mind petitioner’s obligation to establish the violation of his custodial rights as part of petitioner’s prima facie case, the Court found petitioner was not exercising these rights and would not have exercised these rights had the children not been removed from Turkey. Therefore, the Court was unable to find petitioner made a prima facie case under the Hague Convention. Because petitioner had not made a prima facie showing, there was no basis upon which the Court should order the return of the children to Turkey, and the Court would not do so.

Given the complicated nature of the case, the Court found it appropriate to further analyze whether legal grounds existed to order the children’s return to Turkey, in the event a reviewing Court found the Court’s conclusion that petitioner did not establish a prima facie case erroneous.

Kim v Ferdinand, 2018 WL 721455 (E.D. Louisiana, 2018)[Thailand] [Habitual Residence] [Petition granted]

In Kim v Ferdinand, 2018 WL 721455 (E.D. Louisiana, 2018) the Court granted the mothers petition for the return of her children to Thailand.

 Soonhee Kim was the mother of L.J.F. (born in 2007) and A.J.F. (born in 2009) She alleged that on or before August 13, 2017, Kamau Bakari Ferdinand the children’s father, wrongfully retained them in Louisiana where they now remained.  The Mother and Father first met in Japan in 2002. In 2006, the parties married in Kawasaki, Japan.  The Mother was a citizen of the Republic of Korea, but was born in and lived most of her life in Japan. The Mother held special permanent resident status in Japan. The Mother had no immigration status in the United States. The Mother was permitted to enter the United States as a short-term visitor under the visa waiver program. The Father was a citizen of the United States. Prior to 2017, he lived in Asia for almost eighteen years. The Mother and Father both continued to work in Japan after their children’s births in 2007 and 2009. The Mother was a director and partner at a venture capital firm, and the Father was an English teacher. In December 2011, the parties jointly decided to move the family to Thailand, and resided together in Bangkok.  After the family arrived in Thailand, the Father enrolled in an educational program at a local university. The Father completed the curriculum in 2016. The Father did not work while he was attending school. He then started working as a part-time English teacher in 2016.  While in Thailand, the Mother, Father and children all held Thai visas.  From 2011 until mid-2017, their lives, as well as their children’s, centered in Bangkok, Thailand. The family leased and lived in a luxury condominium in Bangkok.

In 2016, after the family lived in Thailand for nearly five years, the parents began to experience marital discord. Eventually, the Father moved out, and rented another apartment in Bangkok. When the parents parted, they agreed on a schedule for the children to spend approximately equal time with both parents.  In 2017, the Father told the Mother he was thinking about finding a job in the United States and would be interviewing with a potential employer during a trip with the children to see their extended family in New Orleans. When the Father was planning this trip to the United States, the Mother had advised the Father that she would not agree for the children to travel to the United States unless the Father provided proof that he had purchased return plane tickets for the children to return to Thailand at the end of the vacation.  On May 5, 2017, the Father forwarded the Mother an e-mail confirmation of the children’s roundtrip ticket from Bangkok, Thailand to New Orleans, Louisiana.  The e-mail confirmation provided a departure date of June 29, 2017 from Bangkok and a return date of August 13, 2017. The children’s paternal grandfather purchased the tickets. On June 29, 2017, the children departed Thailand with the Father’s sister and arrived in New Orleans, Louisiana.  On August 13, 2017, the Father did not return the children to Thailand, and indicated to the Mother in an e-mail that he believes it was a good idea for them to stay. The Father said the children have outgrown the life Bangkok has to offer.

The district court observed that in determining the habitual residence of the children the threshold test is whether both parents intended for the child to ‘abandon the [habitual residence] left behind.’” (quoting Mozes, 239 F.3d at 1075). “Absent shared intent, ‘prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally to this conclusion.’. When ‘the child’s initial move from an established habitual residence was clearly intended for a specific, limited duration [,]...most courts will find no change in habitual residence.’ ” Larbie, 690 F.3d at 311. Here, the Mother repeatedly asserted that she expected the children to return to Thailand after their summer visit to their grandparents’ home in New Orleans. Very telling was the fact the Father, through the grandfather, purchased round-trip tickets from New Orleans to Bangkok for the children. At trial, the Father confirmed this round-trip plan for the children:

The Court found that the shared intent of both parents was not to relocate the children from Bangkok, Thailand to New Orleans, Louisiana.  The Father contended that Thailand was never intended to be a permanent residence.  The Court found that the children’s home was built in Thailand, where the parents leased a condo, secured jobs, enrolled the children in school and extracurricular activities, and where the paternal grandparents visited them, inter alia.

Respondent further argued that the children were well adjusted in New Orleans. Perhaps this was true. But even though the children had seemingly accustomed themselves to New Orleans, with great support from their grandparents who are both accomplished medical professionals, the Fifth Circuit has cautioned courts not to equate this to establishment of habitual residence. Despite the superficial appeal of focusing primarily on the child’s contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned. Mozes, 239 F.3d at 1078–79. The children’s support network in New Orleans was unrelated to the issue of determining habitual residence. 

From the facts presented at trial, the Court concluded that the Mother has established that, before the removal of the children to New Orleans, the parties had a shared and settled intent to live with the children in Thailand. The Court found the Mother had custody rights under Thai law at the time of the retention. The Mother and Father jointly had “parental power” over the children under Thai law by operation of law because they wee the natural parents of the children. Section 1567 of the Civil and Commercial Code of Thailand provides that parental power includes: (A) the right to determine the child’s place of residence; (B) the right to punish the child in a reasonable manner for disciplinary purposes; (C) the right to require the child to do such work as may be reasonable to his ability and condition in life; and (D) the right to demand the return of the child from any person who unlawfully detains the child.  Parental power under Thai law is considered a right of custody in accordance with Article 5(a) of the Hague Convention because it includes rights relating to the person of the child and to determine the child’s place of residence.  Accordingly, the Mother demonstrated by a preponderance of the evidence that she had rights of custody in Thailand under Article 5(a) of the Convention. See Bader v. Kramer, 445 F.3d 346 (4th Cir. 2006) (holding joint rights of custody are considered “rights of custody” under Article 5(a) of the Hague Convention).

           The Court also found that the Mother was exercising rights of custody in Thailand.

The Court concluded that the Mother met her burden in establishing her prima facie case for the Court to order the return of L.J.F. and A.J.F. to Thailand. It also concluded that none of the discretionary exceptions applied to the children’s return and ordered the return of L.J.F. and A.J.F. to Thailand.

Hernandez v Montes, 2018 WL 405977 (E.D. North Carolina, 2018)[Mexico] [Temporary Restraining order]

In Hernandez v Montes, 2018 WL 405977 (E.D. North Carolina, 2018) the district court granted the Father’s motion for a preliminary restraining order prohibiting the removal of the Child, N.R.A., from the Eastern District of North Carolina pending the preliminary injunction hearing;” and directing the relinquishment of the Child’s travel documents, including his Mexican and American passports, to the United States Marshal.

The court observed that “A plaintiff seeking preliminary injunctive relief must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tip in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council. Inc., 555 U.S. 7, 20 (2008); see The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reissued in relevant part, 607 F.3d 355, 356 (4th Cir. 2010) (per curiam). After examining these factors, the court found that the requested TRO was authorized and necessary in this case.

First, the court found that allowing the Mother to flee with the Child would result in irreparable harm. See Alcala, 2014 WL 5506739. at *6. Second, the court found that any threatened harm to Mother and Barrios was minimal as compared to the probability of irreparable harm to Father and the Child…Third, the court found that Father had demonstrated that he is likely to succeed on the merits. Father’s evidence showed that (1) the Child’s habitual residence was Mexico immediately before the wrongful retention; (2) Father had “rights of custody” under Mexican law; and (3) Father was exercising his rights of custody and would have continued doing so but for Mother’s wrongful retention of the Child in the United States. Fourth, the public interest supported issuing the TRO. See Salguero v. Argueta, No. 5:17-CV-125-FL, 2017 WL 1067758, at *2 (E.D.N.C. Mar. 21, 2017) (unpublished) ( “Finally, a TRO serves the public interest. Since international abduction [and] wrongful retention of [a] child[ ] is harmful to [his or her] well-being,’ a TRO in this case will serve the public interest by protecting the child’s well-being.”; Alcala v. Hernandez, No. 4:14-CV-4176-RBH, 2014 WL 5506739, at *7 (D.S.C. Oct. 30, 2014) (unpublished). The court declined to require bond. A bond is not mandatory and can be waived. See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 n.3 (4th Cir. 1999)

Flores v Elias-Arata, 2018 WL 889023 (M.D. Florida, 2018)[Peru] [Federal & State Judicial Remedies] [Motion to dismiss denied]

In Flores v Elias-Arata, 2018 WL 889023 (M.D. Florida, 2018) Petitioner Miguel Benito Campomanes Flores (Father) initiated this action on January 25, 2018. The  Respondent Maria Fernanda Orbegoso Elias-Arata (Mother) moved to dismiss the Verified Petition for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Upon review, the Court found  that the Verified Petition states a claim for wrongful retention under the Hague Convention, and as such, the Motion is due to be denied.³

In the Verified Petition, Father alleged that he and Mother have had an “intermittent relationship” for several years, during which time the Minor Child, J.C.O., was born. Father attaches to the Verified Petition the Minor Child’s birth certificate which reflects that the Minor Child was born in Peru, in January of 2013. The birth certificate names Petitioner as the father and Respondent as the mother.  Father alleges that he shared responsibility for the care of the Minor Child, spent time with him, and provided for his care and well-being. According to Father, in the spring of 2017, Mother asked Father to allow her to bring the Minor Child to the United States to visit Mother’s parents. Father asserts that, at Mother’s request, he signed a Temporary Consent agreement documenting his consent to this temporary travel. According to Father, the temporary travel plans provided that Mother would return to Peru with the Minor Child on August 25, 2017.  Father alleges that Mother did not return to Peru as agreed upon and has informed Father that she has no intention of returning to Peru with their son.  Indeed, Father maintains that Mother “lied about her travel plans to the United States promising to return to Peru with the [M]inor [C]hild while having no intention of doing so.”  As such, Father asserts that Mother’s removal of the Minor Child from Peru was done in a “deceptive manner” and “without [his] consent.”  Father contends that prior to the events giving rise to this case, the Minor Child had resided in Peru since birth, enjoyed “substantial timesharing” with Father, and “was completely settled and integrated in Peru’s life and culture.”

The district court found that the father had set forth sufficient factual allegations to support a plausible claim for wrongful removal or wrongful retention under the Hague Convention. The Mother argues that Father’s allegations are insufficient because he fails to allege facts supporting a wrongful removal and fails to allege that he has rights of custody under Peruvian law. The Court disagreed. It was not entirely clear whether Father sought to pursue a claim of wrongful removal or one of wrongful retention., Even if Father mistakenly characterized his claim as a “wrongful removal,” it was apparent from the facts alleged that Father has stated a claim for “wrongful retention” under The Hague Convention. Mother also contended that Father failed to adequately plead that he has rights of custody under Peruvian law. This argument was plainly without merit. Father alleged the following facts in support of his custody rights: (1) he is the Minor Child’s father, as listed on the birth certificate, (2) the parties “shared responsibilities for the care of their son”, (3) Father spent time with his son almost every day and provided for his care and well-being, (4) Mother asked Father for permission to take the Minor Child to the United States and requested that he sign a Temporary Consent agreement documenting his consent to this plan, , and (5) prior to the wrongful retention, the Minor Child lived with Mother while enjoying “substantial timesharing” with Father. “The Convention broadly defines ‘rights of custody’ as ‘rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ ” See Hanley v. Roy, 485 F.3d 641, 645 (11th Cir. 2007) (quoting Convention, art. 5). At this stage of the proceedings, the foregoing factual allegations, and in particular, the allegation that Mother asked Father to sign a form consenting to her travel with the Minor Child, were sufficient to give rise to the inference that Father had rights of custody pertaining to the Minor Child within the meaning of the Hague Convention and was exercising those rights.

Dona v Castilblanco, 2018 WL 928976 (N.D. Texas, 2018) [Costa Rica] [Rights of Custody] [Motion for TRO denied]

In Dona v Castilblanco, 2018 WL 928976 (N.D. Texas, 2018) Petitioner brought the action on September 14, 2017, requesting that the court order the return of his three-year old biological son J.S.M.P. to his alleged “habitual residence” of San Antonio de Coronado, Costa Rica. In addition, Petitioner requested: (1) “for the well-being of the child, that he be given immediate access to his child, pending further hearing in this Court”; (2) that the court issue an order immediately prohibiting the removal of J.S.M.P. from the jurisdiction and requiring the turnover of the child’s travel documents; and (3) that the court set the matter for an expedited hearing.  the district court denied Petitioner’s motion for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing.


In support of his Petition for Return of the Child to Petitioner), Petitioner submitted a copy of the Convention; a portion of the Spanish version of Costa Rica’s Family Code or Código de Familia; an unsworn affidavit by Petitioner, which constitutes no evidence; correspondence dated January 6, 2017 from the Patronato Nacional De La Infancia; and a “Formulario de denuncia” or “denunciation form” dated September 6, 2016, that Petitioner filed with the Patronato Nacional De La Infancia in Costa Rica. 

Petitioner alleged that Respondent, the biological mother of J.S.M.P, removed the child to the United States without Petitioner’s consent. It was apparent from the documents relied on by him they are not married. The parties’ pleadings and the documentation submitted by Petitioner also show that Petitioner, Respondent, and J.S.M.P. were all born in Honduras; that Petitioner, Respondent, and J.S.M.P. were residing in Costa Rica immediately before J.S.M.P.’s removal; that Petitioner’s country of habitual residence was Costa Rica; and Respondent’s country of habitual residence was the United States. Petitioner alleged that Respondent wrongfully removed the child without his consent from Costa Rica to the United States on February 27, 2016. Petitioner alleges that Respondent has continued to wrongfully retain the child in the United States, and he believes the child is presently living with his mother in Dallas, Texas, at his maternal grandmother’s residence. Petitioner contended that he had rights of custody under Costa Rican law (Articles 141, 151, and 157 of Costa Rica’s Código de Familia or Family Code); that he was exercising those custody rights before the child was wrongfully removed; and that return of the child to Costa Rica is required under Articles Three and Five of the Convention. On January 2, 2018, Respondent filed her pro se Answer to the Petition, denying Petitioner’s allegations and contending that this action is baseless and frivolous:

On February 13, 2018, Petitioner moved for a temporary restraining order (“TRO”). In his motion for a TRO, Petitioner requests that the court prohibit Respondent, and others acting on her behalf, from removing J.S.M.P. from the court’s jurisdiction until after a determination has been made regarding the merits of his Petition.  The district court observed that a court may grant such relief only when the movant establishes that: (1) there is a substantial likelihood that the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury [to the movant] outweighs the threatened harm to the defendant; and (4) the granting of the preliminary injunction will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted. Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993.. Because a TRO is considered an “extraordinary and drastic remedy,” it is not granted routinely, “but only when the movant, by a clear showing, carries the burden of persuasion.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).

  The court determined that Petitioner had not established that all requirements for a TRO had been met.


Regarding the first requirement, whether there is a substantial likelihood that the movant will prevail on the merits, the court determined that there was no evidence to support Petitioner’s conclusory allegations that: (1) J.S.M.P.’s habitual residence before removal to the United States was Costa Rica; (2) Petitioner has custody rights under Costa Rican law; and (3) Petitioner was exercising those rights before J.S.M.P.’s removal to the United States. The conclusory statement in the Petition and Petitioner’s affidavit that J.S.M.P. has lived with Petitioner in Costa Rica since his birth until his removal were insufficient to establish that Petitioner and Respondent had a shared intent or settled purpose to make Costa Rica J.S.M.P.’s habitual residence. Larbie, 690 F.3d at 310. First, this statement conflicted with another statement in Petitioner’s affidavit that J.S.M.P. was born in Honduras. If the child was born in Honduras, he could have lived his entire life in Costa Rica, and Petitioner does not specify how long J.S.M.P. has resided in Costa Rica. Thus, at most, this statement by Petitioner indicatesdonly that, for some unspecified period of time, J.S.M.P. lived with Petitioner in Costa Rica, before the child was removed by his mother to the United States. Moreover, that J.S.M.P. may have lived for a length of time in Costa Rica with Petitioner must be viewed in light of other facts. Specifically, as noted, the parties’ allegations and the documentation submitted by Petitioner indicate that Petitioner, Respondent, and J.S.M.P. were all born in Honduras and lived in Honduras for a time before they moved to Costa Rica; Respondent has immediate family in Dallas, Texas; and Petitioner acknowledges that Respondent’s country of habitual residence is the United States. Taken together, these facts did not support a finding that J.S.M.P.’s habitual residence was Costa Rica at the time of his removal to the United States.

Further, Petitioner did not establish that J.S.M.P.’s removal or retention breached Petitioner’s custody rights under Costa Rican law. Petitioner alleged in his Petition and affidavit that Articles 141, 151, and 157 of Costa Rica’s Código de Familia provided him with rights of custody and offers the following English translation of Convention Articles 141, 151, and 157: Article 141: The rights and obligations inherent to parental authority cannot be renounced. Neither can they be modified by agreement of the parties as they relate to the custody, upbringing, and education of the children, except for the provisions for separation and divorce by mutual consent. Article 151: The father and mother exercise parental authority over the children with equal rights and duties in the marriage relationship. In the event of a disagreement, at the request of either parent, the Court shall make the decision, even without the formalities of process and without the need for the parties’ hiring lawyers. The Court must decide based on the child’s interest.... Article 157: The provisions of Article 151 shall apply when the mother of a child born out of marriage exercised parental authority together with the father. 

Petitioner offered no explanation as to why he believed Articles 141, 151, and 157 of Costa Rica’s Código de Familia provided him with rights of custody under Costa Rican law. Article 141 appears in Chapter I of the Costa Rican Family Code includes general rules of disposition applicable to the rights and obligations conferred by parenthood. Código de Familia [CDF], art. 141 (Costa Rica). Article 151 appears in Chapter II of the Costa Rican Family Code and applies specifically to the rights of parents when a child is born in wedlock.   The court interpreted these provisions as setting forth the general rule in Costa Rican law that provides a joint or equal right of custody to both parents when a child is born in wedlock. See Fernandez v. Somaru, No. 2:12-CV-262-FtM-29DNF, 2012 WL 3553779, at *7 n.5 (M.D. Fl. Aug. 17, 2012). Article 157, which appears in Chapter III of the Family Code, applies to children like J.S.M.P, who were born outside of marriage, and only provides for joint or equal rights of custody to both parents if the mother exercised parental authority together with the father. According to Article 155,5 which also appears in Chapter III of the Costa Rican Family Code, when a child is born outside of marriage, the mother, even if she is a minor, has the right to exercise parental authority over a child born outside of marriage and has full legal status for these purposes.. The father, on the other hand, only has the right to exercise parental authority together with the mother in special cases, if such authority is conferred by a tribunal or court upon request of a party or the Patronato Nacional de la Infancia and done solely in consideration of the child’s interests.  In Fernandez v. Somaru, an ICARA case, the court reached the same conclusion based on expert testimony and an official translation of Costa Rican law regarding parental custody: Costa Rican law provides, [in the event a child is born out of wedlock], that, [t]he mother, even when she is under age, shall have custody of the children born out of wedlock and shall have legal rights for that purpose. The Tribunal could, in special cases, confer custody to the father and natural mother jointly, according to its judgement, or upon request from Patronato Nacional de la Infancia and concerning solely the minors’ interests.

The court concluded that Petitioner did not share rights of custody under Costa Rican law with Respondent with respect to J.S.M.P. because he did not allege and had not established that: (1) the parties had a legally binding agreement to share custody of J.S.M.P; or (2) the Patronato Nacional de la Infancia had conferred him with rights of joint custody as to J.S.M.P. As a result, Petitioner could not have been exercising his alleged rights of custody together with J.S.M.P.’s mother when the child was removed from Costa Rica by his mother, and the removal was not wrongful. Thus, even assuming that the Petition for J.S.M.P.’s return was not subject to a well-settled defense by Respondent as a result of Petitioner’s allegations regarding the reasons for his delay in filing his Petition more than one year after J.S.M.P.’s removal, Petitioner had not shown a substantial likelihood that he will be able to succeed on the merits of his Petition under the Convention, ICARA, and applicable law, which require a showing that J.S.M.P.’s removal from Costa Rica was wrongful.