R.S. v. D.O., 2012 WL 874833 (N.Y.Sup.), 2012 N.Y. Slip Op. 50479(U) [Italy] [State and Local Judicial Remedies]

In R.S. v. D.O., 2012 WL 874833 (N.Y.Sup.), 2012 N.Y. Slip Op. 50479(U),
Petitioner R.S. (Father) sought, inter alia, an order pursuant to Article 3 of the Hague Convention and the International Child Abduction Remedies Act directing the return to him in Italy of the parties' children, D and E .The Mother opposed the motion, and cross-moved for an order dismissing the Father's petition. The Court granted the father’s Petition and denied the cross motion.
The parties were never married. The Father was an Italian citizen, and the
Mother was a citizen of the United States. They met in Rome, Italy in or about
2003. The Father was a medical doctor and dentist, licensed to practice in Italy.
He resided and worked in Rome. The parties' first child was born in New York on
July 18, 2006, while the Mother was visiting her family here. Both children were
Italian citizens. Shortly after D was born, the Father joined the Mother and D, and they returned to Italy, where they resided together. Their second child, E, was born on July 26, 2008 in Rome, Italy. Both children attended preschool, and had friends, extended family, and their primary care physician in Rome. Although the parties and their children sometimes visited New York, frequently staying with friends in New York City, they resided in Italy since the children were born. In or about 2010, the parties' relationship deteriorated, and the Father moved out of their home in Rome and into an apartment nearby. He later moved to a home on the same property as the Mother and children. After the parties separated, they shared time equally with the children. In winter 2011, the parties became involved in custody litigation in Italy, and attended mediation. On or about November 14, 2011, however, the Mother took the children to New York. The parties had discussed the Mother taking the children to Florida for the upcoming Christmas holiday with the children, and returning to Italy by December 26 to spend time with their Father and his family. However, they had not agreed on a departure date, and the Father was alarmed when he found the Mother and children had disappeared, without a word from the Mother. The Mother claimed that the Father hit her on one occasion, but did not specify the date, time, location, or any other details about this allegation. She also alleged that the Father did not put the children in car seats when he drove with them, and that he used cocaine. The Husband denied these claims, noting that he was subject to periodic drug testing for compliance with various licenses and permits required by his profession. He submitted copies of two drug tests taken on May 10, 2010 and January 25, 2012. Although the tests were not translated into English, they appeared to be hair follicle test results showing a negative result for
cocaine.
On November 15, 2011, the Mother obtained an ex parte temporary order of
protection from the Suffolk County Family Court, which directed the Father to stay
away from her and from the children . On November 16, 2011, the Mother filed custody petitions in Suffolk County Family Court, in which she alleged that her and the children's address was in Commack, New York. Her petitions further alleged that each of the children resided at both that address with her and at the Father's address in Italy from birth. By order dated November 16, 2011, the Mother's custody petitions were dismissed based on a lack of "home state" jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act, and a finding that the Mother and children had resided in Italy since October 2006, and had been in New York for only a matter of days at the time the petitions were filed. On December 22, 2011, the Father filed his Petition and Motion. Because he did not know where the children were staying, he filed in New York
County, since the parties had stayed in Manhattan when they had visited New York
together, and because he understood from a mutual friend, whose affidavit was
attached to the Father's reply papers, that the Mother had been seen in Manhattan.
The Father had sought assistance from the Deputy Counsel to the Consulate General in Italy, who contacted the maternal grandmother, who would not provide any information about the Mother's or the children's whereabouts.
Supreme Court observed that pursuant to 42 U.S. C. 11603(a), the court had original and concurrent jurisdiction with the Federal courts to enforce the Hague Convention (citing People ex rel. Geiser v. Valentine, 17 Misc.3d 1117A [Sup Ct Richmond Co 2007] ). An affirmation submitted by the Husband's Italian counsel stated that under Italian law, both parents jointly exercise parental authority by operation of law, absent an agreement or order to the contrary. The Supreme Court held that the finding in the November Family Court Order that Italy was the children's home country was now res judicata. It was undisputed that the children had resided in Italy their entire lives, that the Father exercised his joint parental rights with the Mother on a regular basis prior to the children's removal, and that the Mother removed the children from Italy with the intention to remain in New York with them, and without the Father's consent, on or about November 13, 2011. Therefore, the children were wrongfully removed from their home country .The court found that the Mother had also failed to make a prima facie case that returning the children to Italy would pose a grave risk to them of physical harm or otherwise place them in an intolerable situation (citing Geiser, supra ).
The Mother did not base her request that the court decline jurisdiction to hear the Father's Petition on any exception to the Convention's and/or ICARA's requirement that the children be returned to Italy. She claimed that "the children were not residing in New York County when the Petition was filed. " The Court found that the children's only residence, as a matter of law pursuant to the November Family Court Order, and as was undisputed by the Mother, was Rome, Italy. It was not clear where the Mother's residence was. In order for a particular venue "to qualify as a residence a party must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency'" ( Bennet v. Bennet, 49 AD3d 949, 949-950 [3d Dept 2008][quoting Hammerman v. Louis Watch Co., 7 A.D.2d 817, 818 [3d Dept 1958]]; see also Neu v. St. John's Episcopal Hospital, 27 AD3d 538 [2d Dept 2006] ). The Mother did not clearly state where she had lived since she left Italy, and she did not state an intent to remain in any particular place. Accordingly, the Court found that she did not establish that her residence was Suffolk County either.
The Mother argued that the court should decline jurisdiction based on
improper venue. CPLR 503 states that, where neither party is a resident of the State of New York, as was the case here, venue shall be "in any county designated by the plaintiff." Furthermore, where a party wishes to move venue to a more convenient location, she must serve a written demand prior to seeking a change of venue by motion (CPLR 511[b] ). The Mother had never done so, and had failed to state any reason why Suffolk County would be a more convenient venue. The Mother also argued that the Father's Petition should be brought in Suffolk County because she filed petitions in Suffolk County Family Court for custody, paternity, and an order of protection. However, the Court found most relevant of these petitions to this Petition was the custody proceeding, and that proceeding was dismissed for lack of jurisdiction. Furthermore, the Temporary Order of Protection was issued without the Father's presence in court and without any findings being made. Accordingly, that was not a basis for the Father's Petition to be transferred to Suffolk County. In addition, dismissal of the Father's Petition, or transfer of it to Suffolk County, would only serve to frustrate the purposes of the Convention and ICARA, which require courts to act quickly to return children to their place of habitual residence, where custody disputes may be determined by a court that has jurisdiction to decide such matters. The Father could have brought, and still could bring, his Petition in Federal Court, in which case the Mother might have had to travel to New York City to litigate in any event, since the federal courthouse for the Eastern District of New York is located in Brooklyn. The Mother's cross-motion to dismiss the Father's Petition was denied and the court granted the petition.

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.

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.