In Carnelli v Pas, 2011 WL 1983360 (D.N.J.) Not for Publication, a Petition was filed by Mirna Judith Rodriguez Carnelli ("Petitioner") for the return of her minor child. The District Court denied the Petition based on the "wishes of the child" exception.
Petitioner and Respondent, both natives of Uruguay, were married on May 3, 1988 in Uruguay. In June 1988, Respondent emigrated to the United States, and his wife and young daughter, Virginia, followed in 1990. The family settled in Kearny, New Jersey. On September 20, 1996, Daniel was born in Belleville, New Jersey. The family resided together in Kearny until 2002, when Petitioner and Respondent separated. At that point, Petitioner and her children continued to live in Kearny, New Jersey, while Respondent resided in a separate home in the neighboring town of Harrison. When Petitioner lost her job at a bank in 2004, she was unable to find new employment, a circumstance she attributed to her immigration status. Through personal connections, she was offered a job in Mallorca, Spain. Her emigration to Spain required her to depart from her native Uruguay, where she was a citizen and could obtain the necessary travel authorization. Prior to departing for Uruguay in or about January 2005, she and Respondent reached an agreement regarding the minor children: Virginia would live in the United States in Respondent's care and Daniel would
remain with his mother. Petitioner and Respondent jointly obtained a United States passport for Daniel's international travel to Uruguay, and then to Spain.
While in Uruguay, Petitioner sought to dissolve her marriage with Respondent. Although Respondent also contends that he did not consent to the divorce, he admitted that he signed the divorce documents. The Uruguayan court entered a Divorce Decree terminating the marriage of the parties on or about September 28, 2005. It included a custody agreement, whereby Respondent would continue to exercise custody over Virginia and Petitioner would exercise custody over Daniel.
Petitioner and Daniel moved to Spain, where they remained until January 2009. At that time, a loss of employment prompted Petitioner to relocate. She was offered a job in London, and so in or about January 2009, Petitioner, Daniel, and Petitioner's second husband, whom she married on September 23, 2008, moved to the United Kingdom. Per a signed authorization transmitted from the Uruguayan Consulate in
New York to the Uruguayan Consulate in Palma de Mallorca, Respondent consented to Daniel's residence in Spain and the United Kingdom in the custody of Petitioner. In or about July 2009, Daniel traveled from the United Kingdom to the United States to spend the summer with his father, as he had done every year since leaving the United States in 2005. While Daniel was visiting Respondent, Petitioner's husband returned to
his native Argentina upon the death of his mother, and Petitioner soon relocated there to help her husband care for his ailing father. Petitioner informed Respondent of her situation and asked that he keep Daniel in his care until she was able to sort out her residency, which was necessary for Daniel to obtain his own Argentine residency. She admited that she agreed to his enrollment in school in New Jersey, given the uncertainty regarding how long it would take for her residency to be approved but stressed that she made it clear to Respondent that Daniel should be returned to her once she obtained residency. When the residency was approved on October 15, 2009, Petitioner asked for Daniel to return but Respondent refused. Petitioner claimed that at that point, she began to encounter consistent difficulty in establishing contact with Respondent and ultimately was unable to establish contact at all. Daniel remained in the physical custody of his father since July 2009 to the present. Petitioner filed the Petition in this Court on June 16, 2010. At that time, Daniel was 13 years old. He was currently 14.
The Court found that Petitioner met her burden of proving that Daniel was wrongfully retained. The retention occurred in or about October 2009, when, according to Petitioner's testimony, she asked that Daniel be returned to her and Respondent failed to comply with her wishes. Petitioner conceded that the United Kingdom was the child's place of habitual residence. Petitioner's request for Daniel's return showed her exercise of her custody rights. Having found a wrongful retention, the Court noted that this case presented a slightly unusual situation with regard to the interplay between Article 3, which sets forth the standard for wrongful removal or retention, and Article 12, which directs the return of the child forthwith if that standard is met. The country in which Daniel was habitually resident immediately before his wrongful detention--which Petitioner conceded was the United Kingdom–was not the country to which Petitioner sought he be returned. Petitioner relocated to Argentina after Daniel traveled to the United States. Nor was Argentina a place Daniel ever called home, such that his return to his mother would effect the Convention's goal of having custody disputes resolved in the home country, as opposed to the place where the child has been wrongfully removed or retained. Petitioner argued that the discrepancy between the country of habitual residence, as defined by the Convention, and the country to which she sought Daniel's return should not foreclose the relief she sought because Article 12 of the Convention was deliberately silent on the matter of where the return of a wrongfully removed or retained child should be ordered. Petitioner appeared to be correct. Article 12 simply provides that "the authority concerned shall order the return of the child forthwith," without specifying, as the preamble to the Convention contemplates, that the return be to the country of habitual residence. (see also Von Kennell Gaudin v.
Remis, 282 F.3d 1178, 1182 (9th Cir.2002) (noting that Convention does not make
clear to what country a child must be returned and pointing out difference between
Convention's preamble and its actual text). The Convention's official commentary, cited
by Petitioner in support of her argument, bears out the view that a court handling a
Convention claim may order the return of a child to the custodial parent even if the
parent is not in the place of the child's habitual residence. ( See Elisa Perez Vera, Explanatory Report P 110, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 459-60 (1982).
Though the Court agreed with Petitioner's argument that it was authorized under the Convention to return Daniel to his mother's custody in Argentina, the Court found that Respondent had proven, by the required preponderance of the evidence standard, that Article 13's "wishes of the child" defense applied. Article 13 provides that "[t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its [sic] views." Daniel unequivocally testified that he wished to remain in the United States with his father. There is no set age under the Convention at which a child is deemed to be sufficiently mature; rather, the Third Circuit guides that the district court hearing the matter must make this fact-intensive determination on a case-by-case basis. Tsai-Yi Yang, 499 F.3d at 279. Daniel, who is 14, expressed his wishes to stay with his father in a cogent and well-reasoned manner. He explained that he enjoyed meaningful and close relationships with many family members also living in or near his father's home in Kearny, New Jersey, including specifically his sister, Virginia, his cousin Michael and his Aunt Betsy. He also testified that he was happy with his schooling as a student in Kearny High School, where he enjoyed friendships and, as the records demonstrated, had achieved good grades. In contrast, he described an itinerant and somewhat lonely lifestyle with his mother. He also testified that while he spoke a little Spanish, he was not fluent in the language, which further provided a reasoned basis for his desire to remain with his father in the United States. Moreover, there was no indication that Daniel's wishes to remain with his father were somehow the product of undue influence by his father or some other family member or third-party. The Court also noted that his wishes did not appear to arise from a teenager's rebellious streak or some aversion to his mother. Daniel made it very clear that he loved both of his parents and wished to have a harmonious relationship with both of them. His preference to remain in the United States with his father would seem to stem, rather, from a desire for a more stable lifestyle than his mother was able to provide. Petitioner drew attention to the fact that during this period of time that Daniel had been living with his father, it has been very difficult for her to contact Daniel and that, moreover, the infrequent contact she did have with him (mostly over computer chats, as opposed to telephone) had been strained. She indicated her belief that this breakdown of communication with her son evidenced Respondent's efforts to alienate Daniel from Petitioner. The Court observed that communication between Petitioner and her son had been lacking. Daniel did display feelings of resentment toward his mother, but based on his testimony, the Court understood this tension to stem from Daniel's frustration with his mother's lack of candor with respect to her pursuit of this Petition and her role in the commencement of an ultimately unsubstantiated child welfare investigation by New Jersey's Division of Youth and Family Services. The Court listened attentively to Daniel's testimony, and it did not perceive the communication problems between Daniel and Petitioner to be indicative of any manipulation by Respondent of Daniel's thoughts and feelings but rather of the boy's difficult position in which he is caught in a tug-of-war between his adversarial parents. The Court weighed this unfortunate circumstance and concluded that it does not diminish the reasonableness of Daniel's wish to remain in the United States with his father. The Court found that Daniel presented as a thoughtful and intelligent young man, who, at the age of 14, demonstrated a degree of maturity at which it was appropriate for the Court to consider his views regarding whether to stay with his father or be returned to his mother. Accordingly, the Court denied the Petition under Article 13 of the Convention and the implementing statutory provision, 42 U.S.C. 11603(e)(2)(B).
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