In Application of Garcia v Varona--- F.Supp.2d ----, 2011 WL 3805778 (N.D.Ga.) the District Court granted the petition for return. Petitioner and Yanine Hernandez Varona ("Respondent") were the unmarried parents of two children, A.J.H. and F.J.H. Petitioner was a Spanish national. Respondent was a Cuban national, who possessed a Spanish residency card. Both were born in Seville, Spain and were Spanish nationals. Petitioner was the biological father of both children.
From April 2004 until separating in April 2010, Petitioner and Respondent lived together with the Children in Seville, Spain. Petitioner moved out of the family home in April 2010 because the situation between he and Respondent became intolerable and he had concluded that moving to his mother's house was best for the Children. Between April 2010 and the removal of the Children from Spain in December 2011, the Children resided principally with Respondent. During this period, Petitioner visited the Children every Tuesday and Thursday and the Children lived with him every other weekend. Petitioner also provided 400 Euros a month to Respondent for the support of the Children; paid for A.J.H's English classes; and paid the mortgage and a portion of the utility bills for the home in which Respondent and the Children were living. In July 2010, Respondent visited Florida with the Children to vacation with her maternal relatives there. Petitioner supported the visit to Respondent's family. While driving back from the airport following the vacation to Florida, Respondent claimed she told Petitioner that her and the Children's future was in the United States, and she claimed Petitioner said she could live where she wanted. Petitioner denied that he ever gave consent to allow Respondent to remove the Children to the United States if she chose to reside there.
Believing that Respondent may remove the Children from Spain without telling him, on September 24, 2010, Petitioner initiated a proceeding in Spain to establish "provisional measures" regarding his parental rights. On November 24, 2010, the Spanish Court issued its preliminary order regarding the Emergency Petition. The Spanish Court considered Petitioner's request for "provisional measures," "accepted that the couple have children who are minors," and required Petitioner and Respondent to appear at a hearing on December 15, 2010. The summons and complaint filed in the Spanish Court apparently was not served upon Respondent before she departed Spain. On November 30, 2010, Petitioner went to the Children's school and learned they were absent. Distressed about the location of Respondent and the well-being of the Children, Petitioner began a search to find the Children, and ultimately learned from Respondent's relatives in Spain that she had departed Seville, taking the Children with her that morning. After Petitioner learned Respondent and the Children were no longer in Seville,the parties had a telephone conversation on the evening of November 30, 2010. In the November 30, 2010, telephone conversation, Respondent did not disclose to Petitioner her plans to depart Spain the next day for the United States and to take the Children with her. On or about December 9, 2010, just days before the December 15, 2010, hearing, Respondent informed Petitioner by phone and by a letter sent by facsimile that she had moved to the United States with the Children.
On December 9, 2010, the Spanish Court, after being advised of the possibility that the Children might be removed from Spain by Respondent without the Petitioner's consent, issued a second order. The Spanish Court noted "the possible exit" from Spain of A.J.H. and F.J.H.. The court further noted that the Children had "stopped going to the school where they were registered, [which] reinforces the possibility that the mother wants to leave the country with the minors.". The court's December 9th order prohibited the departure of A.J.H. and F.J.H. from Spain, prohibited the issuance of passports to the Children, and recalled any passports issued to the Children. (Id.). The Spanish Court imposed the removal prohibition "to save, the minors' interests and their rights to relate to their father" as set forth in Article 156 of the Spanish Civil Code. The Spanish Court stated in its order: "In addition in respect
to the article 156 of the Civil Code, Paternal authority will be exercised together by both parents or just by one of them with the other's clear or tacit consent, and in this case there is evidence that the father has expressed his negativity towards leaving the country."
After departing Spain, Respondent took up residence with the Children in Georgia at the residence of Mr. Hinojosa. Respondent and the Children were currently living with Mr. Hinojosa. Respondent represented to the Court that she and Mr. Hinojosa were engaged and he was assisting Respondent in obtaining a work permit to remain in the United States. On May 12, 2011, Petitioner filed with the Office of Children's Issues, United States Department of State, an application for the return of the Children. On July 29, 2011, Petitioner filed his Motion Under the Hague Convention for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing [2],as well as his Verified Complaint and Petition for Return of the Children [1]. Petitioner sought a temporary restraining order ("TRO") and expedited hearing on his motion for injunctive relief.
A hearing was held by the Court on August 4, 2011, and an order was issued prohibiting the Children from being removed from this jurisdiction and setting an August 25, 2011, date for a trial on the merits.
The District Court observed that non-emancipated children in Spain are under the authority of their parents. C.C., Art. 154. A biological, unmarried parent has the same status under the Spanish Civil Code as a married parent or an adoptive parent. C.C., Art. 108. Article 108 of the Spanish Civil Code uses the term "filiation." C.C., Art. 108. Black's Law Dictionary defines "filiation" as "the fact or condition of being a son or daughter; relationship of a child to parent" and as "judicial determination of paternity." Black's Law Dictionary (9th ed.2009). Spanish parental authority is normally exercised by both parents, or by one of them with the express or tacit consent of the other. C .C., Art. 156. Parental authority includes the duties towards one's children of "looking after them, keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. "Separation, annulment and divorce shall not exonerate parents from their obligations to their children." C.C., Art. 92.1. When parents are living separately, parental authority will normally be exerted by the parent with whom the child is living. C.C., Art. 156. However, when parents are living separately and do not agree on a custodial arrangement, then a judge will decide which parent will take care of the children under legal age. C.C., Art. 159. A judge may also, on request of the other parent and acting on behalf of the child, assign parental authority to be exerted jointly between the parents. C.C., Arts. 156, 158. All parents under Spanish law, including those who are not granted custodial rights, have the right to keep in touch with their underage children, unless a judicial body determines otherwise. C.C., Art. 160. An additional component of parental responsibility in Spain is the doctrine of patria potestad. This doctrine is codified in the Spanish Civil Code at Articles 154 and 156 and translates, respectively, as "authority of the parents" and "parental authority." C.C., Arts. 154, 156; Patria potestad includes the right of a Spanish parent to "make decisions regarding a child's education, well-being, protection, upbringing, and place of residence." See C.C., Arts. 154, 156, 160; Moreno, 2008 WL 4716958, at * 8. Patria potestad encompasses more than the parental authorities and responsibilities in the Civil Code and extends to "parental authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside," and "decisions about ... the children's residence or those which will affect the scholar, health, and religious limits." Black's Law Dictionary defines "patria potestas" as "[t]he authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated." Black's Law Dictionary (9th ed.2009).
The Court further observed that under the Convention, rights of custody include "rights relating to the care of the person of a child," and in particular, "the right to determine the child's place of residence." These rights of custody may be based on the law of the state of habitual residence or a judicial decision having legal effect under the law of that state. Because the Children lived in Spain for their entire lives prior to being removed, Spain was their habitual residence and Spanish law applied in determining Petitioner's rights of custody.
The District Court held that the Petitioner had rights of custody under spanish law. Spanish parents have the duty of "looking after [their children], keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. Under the doctrine of patria potestad, Spanish parents also jointly possess authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside. These obligations continue even when parents separate. C.C., Art. 92.1. Although parental authority is principally exercised by the parent with whom the children are living during a separation, that authority is not exclusive to that parent and is subject to a judicial determination where there is disagreement. C.C., Arts. 154, 159. When parents cannot agree on a custodial agreement for minor children or the scope of the parental authority each may assert after separating, the Spanish Court determines these issues. C.C., Arts. 156, 159. Until that determination occurs, both parents continue to enjoy the rights of custody afforded to them as parents under Spanish law, to include those specifically enumerated in Articles 154 and 160 of the Spanish Civil Code, as well as those arising from patria potestad. See C.C., Arts. 92.1, 154, 156, 159-160. Under Spanish law, Petitioner, as a parent, enjoyed authority to communicate with and make decisions regarding the Children that "fall within the ambit of decisions relating to the 'care of the person of the child' within the meaning of Article 5 of the Convention. This decision-making parental authority qualifies as rights of custody as defined by the Convention and understood by our courts. Thus, the Court found that Petitioner established by a preponderance of the evidence that he enjoyed rights of custody under the Convention and Spanish law and that the removal of the Children from Spain violated Petitioner's rights of custody. The Court's conclusion that Petitioner had and was exercising rights of custody when the Children were removed from Spain by Respondent was further supported by the December 9, 2010, judicial decisions of the Spanish Court and Spanish Justice Court. These decisions expressly recognized Petitioner's rights of custody under Spanish law with respect to his relationship with the Children as their biological father, including the right to decide where the Children lived.
The recognition of these rights led to these Spanish judicial decisions to prevent the Children from departing Spain and to issue a criminal indictment against Respondent based on her wrongful removal of the Children from the country. In determining if there has been an exercise of rights of custody, courts within the Eleventh Circuit have favorably used the standard adopted by the Sixth Circuit that "[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find 'exercise' whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." See, e.g., Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir.1996) Once a court "determines that the parent exercised custody rights in any manner, the court should stop-- completely avoiding the question whether the parent exercised the custody rights well or badly." Friedrich, 78 F.3d at 1066. Lastly, when one parent removes the child without seeking a ne exeat holder's consent, it is clearly an instance where the right would have been "exercised but for the removal or retention." Convention, Art. 3(b); Abbott, 130 S.Ct. at 1992. The Court found that Petitioner had established by a preponderance of the evidence that he was actually exercising the rights of custody he had under Spanish law at the time of removal. Petitioner sought to be a continual presence and influence in the life of the Children up until the day of their wrongful removal, seeing them every Tuesday and Thursday, living with them every other weekend, providing a variety of financial support to them, and resorting to the Spanish Courts to formally establish his ne exeat and custody rights under Spanish law. The Court further found that Petitioner would have exercised his ne exeat right of custody, as validated by the Spanish Court's judicial decision of December 9, 2010, but for the removal of the Children from Spain without Petitioner's knowledge and without his consent.
Respondent raised the defenses of consent and abandonment. Consent or "acquiescence under the Convention requires 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; see De Vasconcelos v. De Paula Batista, No. 4:10-CV-00628, 2011 WL 806096, at *7 (E.D.Tex. Mar. 1, 2011) (applying the Friedrich standard for acquiescence) Respondent, however, did not offer any factual basis for her claim that Petitioner consented or acquiesced to her removal of the Children to the United States beyond her self-serving testimony that Petitioner said she could take the Children anywhere. The Court, having observed Respondent testify on this matter at trial, found her testimony unconvincing and not believable. Having had the benefit of observing Petitioner during his testimony, the Court found highly credible that he did not and would not have consented to the removal of the Children from Spain. The Court found Respondent has not met her burden of proving by a preponderance
of the evidence that Petitioner consented to the removal of the Children. With regard to the affirmative defense of abandonment, this argument was, at most, based on Respondent's contention that Petitioner, having moved five minutes away to reside with his mother, was not actually exercising his custodial rights when the Children were removed. The evidence showed, however, that while Petitioner moved out, he did so in the best interests of the Children, intending to and
remaining actively engaged in their lives, including by being available to care for the Children when Respondent called to say she had to run errands or attend to other matters. A court cannot find a failure to exercise custody rights by a parent "short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066; see Moreno, 2008 WL 4716958, at *9. There was simply no evidence of abandonment in this case.
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