In Carrasco v. Carrillo-Castro, --- F.Supp.2d ----, 2012 WL 1948996 (D.N.M.) Petitioner Flor Jazmin Carrasco ("Flor") and Respondent Daniel Carrillo-Castro ("Daniel") were both from Mexico. The parties met in Albuquerque, New Mexico, and began a romantic relationship. They began living together shortly thereafter. In 2007, their son, N.C., was born. Flor, Daniel and N.C. lived together as a family in Albuquerque until January 2010, when the parties separated. Flor testified that they separated because of domestic violence: Daniel would beat her up, and hurt her. At the time of their separation, Flor and N.C. remained in the family home, and Daniel moved out. Soon thereafter, Flor and N.C. moved in with a sister of their social worker for one month, and then moved in with Flor's sister in Los Lunas, New Mexico, where they lived until June 2010. During that period, Daniel saw N.C. on weekends, and had regular telephone contact with him.
In June 2010, Flor and N.C. with Daniel's consent, left for Chihuahua, Mexico. Both parties testified that they did not discuss a specific date on which Flor and N.C. would return to the United States. According to Flor, in advance of that trip, she told Daniel on several occasions that she wanted to move back to Mexico to be near her family, and intended to find a place to live and work there. With regard to the June trip in particular, Flor testified that she told Daniel that she planned to look for a place to live and a job while she was in Mexico, and that if she found a job, she might not return to the United States. According to Daniel, Flor told him she had already gotten a job in Mexico, and that she and N.C. would live there while she was working. He further testified that although they did not discuss how long Flor and N.C. would be in Mexico, it was supposed to be temporary, "for a relatively short time." .According to Daniel, he told Flor that he did not want N.C. to live in Mexico, and that Flor assured him that she and N.C. would return to Albuquerque in several months..
While they were in Mexico, Flor and N.C. lived with Flor's mother in Chihuahua. Until January 2011, Flor's mother cared for N.C. while Flor was at work. Beginning in January 2011, N.C. attended a daycare center in the mornings and stayed with Flor's mother in the afternoons. N.C. spent time with family at social gatherings, and played with cousins and friends from the neighborhood. His health was good, and according to Flor, he had a regular doctor that he saw every month. Daniel spoke to N.C. almost daily. In September 2010, Flor sent N.C. to Albuquerque with her mother to see Daniel.
Flor picked N.C. up at the end of the visit and brought him back to Mexico. In November 2010, Flor's mother again brought N.C. to Albuquerque to see Daniel. Flor, too, came to Albuquerque at that time, and stayed with her sister. N.C. stayed with Flor for the month of November and the first two weeks of December. He stayed with Daniel for the last two weeks of December for the holidays. While N.C. was with Flor, he saw Daniel daily. In November, Flor took N.C. for a check-up with his primary care physician in Albuquerque. Daniel testified that during Flor's stay in Albuquerque, she advised him that she intended to remain in Mexico, where she had gotten a good job. The parties together decided to enter into a written agreement regarding N.C.'s care and the distribution of their assets. Flor testified that the intent of the agreement was for N.C. to stay with her in Mexico, and to prevent future problems with visitation. .Daniel similarly testified that he entered into the agreement in order to "stay in contact" with N.C. while he and Flor were in Mexico. .He further testified that he understood that Flor would stay in Mexico, and while she was in Mexico, she would guarantee that he would see his son. Accordingly, on November 4, 2010, the parties entered into a written agreement, which was signed and notarized. The agreement provides as follows: By means of this document, we the interested parties Flor Jazmin Carrasco Lopez and Daniel Carrillo Castro arrived at an agreement as to the care of our son [N.C.]. In which we understand that for every 2 months that [N.C] spends living with his mom Flor Jazmin Carrasco in the city of Cuahutemoc Chihuahua. The following month he shall spend in the care of his dad Daniel Carrillo Castro in the city of Albuquerque New Mexico. In addition in this document we record how our assets were distributed as of our separation.
The agreement did not include any time limits on the arrangement for N.C.'s care, or any date on which Flor and N.C. would return to the United States. Despite his testimony that Flor advised him of her intention to remain in Mexico, where she had gotten a good job, Daniel also testified that he believed the agreement would be temporary, and that he repeatedly asked Flor to move back to Albuquerque. Daniel provided no factual basis, such as evidence that Flor's job was a temporary position, to support his testimony as to the temporary nature of Flor's stay in Mexico.
Both parties testified that they understood the agreement would have to change when N.C. started school. Flor testified that she told Daniel that once N.C. started school, N.C. should visit Daniel during school vacations. However, Flor also testified, as did Daniel, that Daniel had always intended for N.C. to attend school in the United States, and had made that intention known to Flor. When asked in what grade he thought N .C. would start school, Daniel responded, kindergarten. Flor and N.C. returned to Mexico at the end of December 2010. In keeping with the parties' written agreement, in March 2011, Flor sent N.C. to Albuquerque with her mother to see Daniel. N.C. remained in Albuquerque for one month, and then returned to Mexico. Although, pursuant to the parties' written agreement, N.C. was to spend the month of June 2011 with Daniel, N.C. did not travel to Albuquerque at that time. Flor testified that she did not bring or send N.C. to Albuquerque both because Daniel had threatened to keep N.C. in the United States if she did, and because neither Flor nor her mother was able to bring N.C. to the United States. Specifically, Flor's visa had expired and she was unable to procure a new visa, and Flor's mother was unavailable. The Court found Flor's testimony credible.
Flor testified that for approximately one week in June, she and N .C. traveled to an area that made it difficult to have telephone contact. .According to Flor, she told Daniel in advance about the trip. On the other hand, Daniel testified that he was unable to reach N.C. by telephone for approximately one week, and had not been advised by Flor that they would be traveling and unreachable. Daniel testified that because he had not heard from N.C, he decided that N.C. should stay with him in the United States, and sought legal assistance to effectuate that decision.
Flor testified that after June 2011, Daniel changed. He stopped threatening her and "became nice" again. In September 2011, in keeping with the parties' written agreement, Flor sent N.C. to Albuquerque with her sister. Flor expected that Daniel would send N.C. back to her at the end of the month. At that time, N.C. spoke no English.
Although the parties' agreement required him to return N.C. to Flor at the end of September, Daniel refused to allow N.C. to return to Mexico. Flor testified that Daniel told her at the end of September that he was not going to send N.C. back. Consistent with Flor's testimony, at one point in the hearing, Daniel admitted that he decided to retain N.C. at the end of September and then began a custody proceeding so that Flor would not find out about the proceeding until it was too late for her to refuse to send N.C. to see him. At another point in the hearing, Daniel provided contradictory testimony that he had told Flor in August that he intended to start a custody proceeding, and that she would not be able to take him back to Mexico at the end of September .Daniel testified that Flor "knew perfectly well what [he] was going to do" before she sent N.C. to the United States. The Court did not find credible Daniel's testimony that Flor knew in advance of the September trip that he intended to keep N.C. This testimony was simply not believable, and inconsistent with Flor's testimony, which the Court found credible.
In November 2011, Daniel filed in the Second Judicial District Court, State of New Mexico, a Petition to Establish Parentage, and to Determine Child Custody, Timesharing, and Child Support Obligation, in which he sought primary physical custody of N.C. In that proceeding, Daniel specifically requested that the state court enter an order prohibiting the removal of N.C. from the United States. Accordingly, on November 15, 2011, the state court entered a temporary order prohibiting the removal of N.C. from the State of New Mexico by one parent without the written consent of the other parent. Since sending him to Albuquerque in September 2011, Flor has spoken to N.C. daily, but has not been able to see him. Flor attempted to travel to Albuquerque in November 2011, but was unable to enter the United States. To date, Flor was unable to procure the necessary documents to travel to the United States.
On March 13, 2012, Flor filed the Petition, seeking, inter alia, an order directing prompt return of N.C. to Mexico, his habitual residence, and an order directing Daniel to pay her legal costs and fees. On April 10, 2012, Daniel filed an answer denying the allegations in the Petition. On May 3, 2012, the Court held an evidentiary hearing at which both parties testified. The Court observed term "habitual residence" is "not defined by either the Hague Convention or the ICARA." Kanth v. Kanth, 232 F.3d 901, 2000 WL 1644099, *1 (10th Cir. Nov. 2, 2000). Rather, a child's habitual residence "is defined by examining specific facts and circumstances." Accordingly, the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case." Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). The federal circuit courts have interpreted the term "habitual residence" differently. In Feder, the Third Circuit held that a child's habitual residence is "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." 63 F.3d at 224. Considering N.C.'s past experiences and the parties' shared intentions, the Court found that Mexico was the place where N.C. had been physically present for an amount of time sufficient for acclimatization, and which has a "settled purpose" from his perspective. See Feder, 63 F.3d at 224. Since he was born, N.C. lived with Flor. When Daniel and Flor separated, N.C. continued to live with Flor. When Flor left for Mexico in June 2010 to look for work and a place to live, N.C, with Daniel's permission, went with her. At the time, N.C. was two and one-half years old. In November 2010, when Flor told Daniel that she had found a job and would remain in Mexico indefinitely, Daniel again consented to Flor taking N.C. with her. At no point did the parties discuss a specific date on which Flor and N.C. would return to the United States. Other than three trips to visit his father, N.C. lived with Flor in Mexico until his retention in the United States in September 2011, when he was just over four years old. N.C. spoke only Spanish. From the time he first arrived in Mexico until his September 2011 trip, N.C.'s grandmother cared for him, at least for part of the day each weekday, and beginning in January 2011, N.C. attended daycare every weekday morning. N.C. established a relationship with his extended family, spending time at social gatherings, and playing with cousins. He also established friendships with neighborhood children. Although he had primary care physicians in New Mexico as well, N.C. established a relationship with a doctor in Mexico, whom he saw every month. N.C.'s fifteen months in Mexico-which, at four years old, was almost thirty percent of his life-living with the primary caretaker he had always known, surrounded by his extended family, and speaking the only language he had ever known, was sufficient for him to become acclimatized. See Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass.1994) (finding twenty-one month old child had become "completely accustomed to life in this country and with his father and grandparents" where he had been living in the United States for eight months). Further, from his perspective, N.C.'s purpose of living in Mexico-to remain with his mother where she had decided to make a life for herself-had a sufficient degree of continuity to be properly described as settled. The fact that N.C. spent some time during this fifteen-month period in Albuquerque does not change this analysis, as "[i]t is clear ... that an existing habitual residence in a country is not lost by the mere fact of leaving the country for a temporary absence which is intended to be of a short duration."E.M. Clive, The Concept of Habitual Residence, 1997 Jurid. Rev. 137, 142. This is true even if Daniel intended for N.C. to return to the Albuquerque two years later to attend kindergarten, or, indeed, even if Daniel was under the impression that Flor was planning to return to the United States after a short time. As Feder makes clear, one need not intend to stay somewhere permanently, or even indefinitely, so long as "the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." Feder, 63 F.3d at 223. Accordingly, "Feder requires only a degree of settled purpose to accompany the move, even if such purpose is only for a limited period." Whiting, 391 F.3d at 549 (holding that shared intent by parents that child live in Canada for period of two years fulfills Feder requirement that her move to Canada was accompanied by a degree of settled purpose). That requirement was met easily here. Both parents agreed that Flor would return to Mexico for some period of time with N.C. The amount of time was left open, and Daniel agreed that N.C. should go
with Flor. These arrangements "amounted to a purpose with a sufficient degree of
continuity to enable it properly to be described as settled." Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993) . For these reasons, under the Feder test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court reached the same conclusion under the Mozes test. The circumstances surrounding N.C.'s stay in Mexico were such that, "despite the lack of perfect consensus", the Court found that Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. See Mozes, 239 F.3d at 1077-78. Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. As this is the case, the Court inferred a mutual abandonment of N.C.'s prior habitual residence in the United States. Daniel's stated intention that N.C. return to Albuquerque to attend kindergarten did not change this analysis. Flor and N.C. left for Mexico in June 2010. Daniel was not eligible to begin kindergarten until September 2012. Accordingly, even if the parties shared a settled mutual intent that N.C.'s stay in Mexico last for two years, this period was too long to expect N.C. to live abroad-in his parents' native country-without acquiring habitual residence. Under the Mozes test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court noted that its determination regarding N.C.'s habitual residence was further supported by the fact that Daniel has no legal status in the United States. "An unlawful or precarious immigration status ... is [ ] a highly relevant circumstance where, as here, the shared intent of the parties is in dispute." Although N.C, himself, is a United States citizen, he was only four years old, and thus needs to rely on the stability of his primary caretaker for several years to come. Unfortunately, Daniel is unable to offer that stability. Accordingly, although not determinative of this Court's decision, Daniel's status is a factor weighing in favor of finding Mexico to be N.C.'s habitual residence.
N.C.'s habitual residence at the time of retention was the State of Chihuahua, Mexico. Accordingly, the law of Chihuahua, Mexico governs the decision as to whether Flor had custody rights at the time Daniel retained N.C. in the United States. Title Eighth of the Civil Code for the State of Chihuahua contains several provisions defining the scope of parental authority/responsibility, or patria potestas. Under this Title, the Code provides that parental authority/responsibility over children will be exerted by the father and mother. Civil Code, Art. 391(1). Further, the Code provides that in the event of a separation between the parents, both parents are required to continue fulfilling their obligations, and may agree upon the terms of its exertion, particularly in all things concerning the care and custody of the minors. Art. 393. In the case of disagreement between separating parties, a judge will decide the matter. Id. The Code specifies that those who exert parental authority/responsibility have a
right to coexist (spend time) with their children, even if they do not have custody, unless it represents a danger to the child. Id. Art. 394. Further, the Code provides that as long as the child is under parental authority/responsibility, he shall not leave the house of those who exert it without their permission. Id. Art. 398. Finally, the Code provides that the abduction or retention of the minor outside of his habitual residence without the permission of those exerting parental authority/responsibility or custody grants the right to initiate the restitution procedure contemplated in the Code of Civil Procedure.
The doctrine of patria potestas set forth in the Code "implies a meaningful, decision making role in the life and care of the child." Whallon, 230 F.3d at 458. Accordingly, the rights of parental authority/responsibility afforded to Flor, as N.C.'s mother, pursuant to these Code provisions was sufficient to establish that she had rights of custody for purposes of the Hague Convention. Under the Code, Flor had the right to exert parental authority/responsibility, and the right to spend time with N.C. Daniel violated those rights by retaining N.C. in Albuquerque after the date upon which the parties agreed N.C. would be returned to Mexico. Assuming the Mexican courts would honor the parties' agreement here, Daniel was in violation of that agreement when he retained N.C. Further, Daniel retained N.C. outside of his habitual residence without Flor's permission, thus violating the Code. Accordingly, the Court found that Daniel's unilateral decision to retain N.C. was in breach of Flor's custody rights under the laws of N.C.'s habitual residence at the time of his removal.
The Court "liberally find[s] "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child ." Friedrich, 78 F.3d at 1067. Accordingly, "if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention
short of acts that constitute clear and unequivocal abandonment of the child." The evidence demonstrated that, far from abandoning her child, Flor was living with and caring for N.C. in Mexico. Although, pursuant to the parties' agreement, she sent N.C. to spend the month of September with Daniel, she intended to continue to live with and care for Daniel upon his expected return at the end of the month. Accordingly, the Court found that Flor was exercising her custodial rights at the time of Daniel's retention of N.C. in the United States.
The Court concluded that Flor established by a preponderance of the evidence that Mexico was N.C.'s habitual residence, that Daniel's retention of N.C. in the United States was in breach of Flor's custody rights under Mexican law, and that Flor was exercising her custody rights at the time of retention. Accordingly, Flor made a prima facie case of wrongful retention. The burden thus shifted to Daniel to establish a defense. Daniel, however, did not assert any defense to Flor's prima facie case of
wrongful retention. Accordingly, the Court ordered the return of N.C. to Mexico.
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