In Font Paulus ex rel. P.F.V. v. Vittini Cordero, 2012 WL 2524772 (M.D.Pa.) Alberto Eugenio Font filed a Verified Petition for Return in which he alleged that P.F.V.'s mother, Respondent Ana Virginia Vittini Cordero, wrongfully retained P.F.V. in the United States without his permission. He sought the return of his child P.F.V. to the Dominican Republic where the Petitioner and his daughter were citizens.
The Court observed that it must first determine when an alleged wrongful removal or retention occurred so that it could establish the relevant date of the child's habitual residence. ( Karkkainen, 445 F.3d at 290). Wrongful removal refers to the
noncustodial parent's physical taking of the child out of the country. Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir.2005). Thus, a noncustodial parent may remove a child from the country with permission, but then wrongfully retain the child outside the country. The assertion in this matter was not that P.F.V. was wrongfully removed to the United States, but that she was unlawfully retained here by her mother.
The Court observed that in determining the date of a wrongful retention, the Third Circuit Court of Appeals held that it "does not begin until the noncustodial parent...clearly communicates her desire to regain custody and asserts her parental right to have [her child] live with her." Karkkainen, 445 F.3d at 290. Here, it appeared that the wrongful retention occurred on July 8, 2010. Mr. Font Paulus signed an agreement limiting the period in which his former spouse could keep his daughter outside of her home country. That agreement specifically stated that she would be "returning to [Santo Domingo] on July 8, 2010." Therefore, the wrongful retention occurred when Ms. Vittini Cordero did not return P.F.V. to the Dominican Republic on that date: July 8, 2010.
It was necessary to determine "the State in which the child was habitually resident immediately before the removal or retention. "Convention Art. 3a. The Court noted that the Third Circuit Court of Appeals has defined a child's habitual residence as "the place where he or she has been physically present for an amount of time sufficient or acclimatization and which has a 'degree of settled purpose' from the child's perspective." Baxter, 423 F.3d at 368. The inquiry focuses on the child and "consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." "When a child is too young to have an intent regarding her habitual residence, the touchstone inquiry is 'shared parental intent.' " In re Application of Adan, 437 F.3d 381, 392 (3d Cir.2006) The focus is the "degree of settled purpose." It is not necessary that the person intends to stay in a place indefinitely. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. Where the parents have stipulated to the child's residence in a written agreement, their shared intent need not be inferred from their actions. Mr. Font Paulus successfully demonstrated that P.F.V.'s habitual residence at the time of the wrongful retention was in the Dominican Republic. P.F.V. was born in the Dominican Republic and there was no evidence presented that, prior to her departure in June of 2010, she had ever been to another country. She had lived in the Dominican Republic for ten years, meaning she was acclimatized and settled there. While there was evidence presented indicating that P.F.V.'s parents perhaps did not envision P.F.V. remaining forever in the Dominican Republic, including Mr. Font Paulus's consent to P.F.V. obtaining United States citizenship, this was immaterial to the termination. Mr. Font Paulus testified credibly that he believed permanent residency status would be used for P.F.V. to travel to the United States for vacations only, and that P.F.V. would ultimately decide her residence upon turning eighteen. Moreover, as to the particular trip at issue, the power of attorney / authorization to travel explicitly provided for P.F.V.'s return to the Dominican Republic after just one month. Mr. Font Paulus testified that he had rejected attempts at longer periods and that it was his expectation and intention that P.F.V. would return to her school in the Dominican Republic in the fall. Together, this indicated that P .F.V. was a habitual resident of the Dominican Republic at the time she was retained in the United States.
The third inquiry considered whether there had been a breach of the Petitioner's rights of custody. The testimony presented at the hearing established that Ms. Vittini Cordero left P.F.V. with Mr. Font Paulus from 2003 until December of 2009. During this period, on June 6, 2005, the two parties signed a divorce agreement stating "that they have agreed by means of the present act to transfer the mother Ana Virginia the watch and tutelage of the girl [P.F.V.]." Conversely, in a May 11, 2009 agreement, the parties acknowledged that the Father had exercised de facto custody of P.F.V. for the preceding seven years. From the testimony before the Court, it appeared that the de facto custody arrangement would have continued except that Ms. Vittini Cordero took possession of the child in December of 2009 and would not return her to Mr. Font Paulus. This caused Mr. Font Paulus to file a petition for custody on April 5, 2010, which was denied on October 13, 2010 as it was "physically impossible" for that court to secure the girl's testimony.
This general arrangement was in accordance with the Court of Appeals for Children and Adolescents of the National District of the Dominican Republic which determined that, when affirming the denial of Ms. Vittini Cordero's request for unilateral authorization to take P.F.V. out of the Dominican Republic, while the divorce settlement agreement gave Ms. Vittini Cordero custody of her daughter, that Mr. Font Paulus had been exercising de facto custody. Like the lower court, the appellate court held that "it is not appropriate to grant permission to depart until the custody of the minor and the place where she is to reside (abroad or in the Dominican Republic) is definitively decided upon."
However, by the time of that decision, June 28, 2010, P.F.V. was already in the
United States with her mother by operation of the power of attorney / authorization to travel. This authorization was necessary as the Court for Children and Adolescent of the National District of the Dominican Republic denied Ms. Vittini Cordero's petition requesting authorization for P.F.V. to travel. This would have been necessary as the
Dominican Code for the Protection of Children and Adolescents, Act No. I4-94,
Article 116 provides that "No child or adolescent may travel outside the country
unless accompanied by a parent or guardian."Pertinent to this matter, Article 117
elaborates on this by establishing that a court is responsible for granting such
permission "in the event of disagreement about it between their parents or legal
representatives."
This restriction conferred a ne exeat right on the Petitioner over his child. Such is "[a]n equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction . And, such a right will be found where a parent has a right to consent before the other parent removes the child from the jurisdiction. The Supreme Court has held that ne exeat rights are sufficient to support right of custody under the convention. In this case, having failed to secure a proper court order, Ms. Vittini Cordero's authority to take P.F.V. outside of the country was predicated on the power of attorney, which expired on July 8, 2010. Therefore, it was unnecessary to analyze the complexities of the de facto custody arrangement between the parties as it was clear that as of July 8, 2010, Ms. Vittini Cordero was retaining P.F.V. in the United States in violation of Mr. Font Paulus's ne exeat rights. Such a right triggered "the Convention's protection of a parent's custodial"right to determine the child's place of residence."
The Respondent presented evidence that from the end of December 2009 to the
departure on June 8, 2010, some six months, P.F.V. lived with her at the home of
Respondent's mother. Moreover, the evidence was that Petitioner was not permitted
to see P.F.V. and saw her only when he went to her school. Respondent contended
that during this period she was exercising custody rights conferred by the divorce
settlement. Without analyzing whether these rights were abandoned by Respondent's
absence for two years, it sufficed to say that this six-month period did not
overcome the ne exeat rights of Petitioner, assuming arguendo he did not have de
facto custody during this period. Therefore, Mr. Font Paulus was exercising his custody rights at the time of the wrongful retention and he established a wrongful
detention.
The Court noted that the well-settled exception only applies where the proceedings have been commenced after the period of one year from the date of the wrongful retention. The wrongful detention in this case began on July 8, 2010. As these proceedings were initiated on May 24, 2012, they were commenced more than one year from the date of the wrongful retention. In determining whether a child is so well-settled, Courts review a list of factors. Within this Circuit, district courts had considered: (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.
The court noted that the most important factor in the analysis will usually be "the length and stability of the child's residence in the new environment." In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir.2009). Most pertinent to the instant case, however, was the recognition in element nine (9) above that concealment is a relevant factor in the analysis. Though the Third Circuit has not addressed the issue, the Ninth and Eleventh Circuits have applied the doctrine of equitable tolling to the Convention. See Duarte v. Bardales, 526 F.3d 563, 569 (9th Cir.2008); Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.2004) . Under this rule, "equitable principles may be applied to toll the one-year period when circumstances suggest that the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return." Duarte, 526 F.3d at 570. The Eleventh Circuit noted that federal limitations periods are customarily subject to equitable tolling, Furnes, 362 F.3d at 423, and the Ninth Circuit reasoned that "awarding an abducting parent an affirmative defense if that parent hides the child from the parent seeking return would not only encourage child abductions, but also encourage hiding the child from the parent seeking return."The U.S. State Department similarly stated in its public notice on the Convention that "[i]f the alleged wrongdoer concealed the child's whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.”
The Court held that based on the credible testimony of Mr. Font Paulus, equitable tolling was properly applied to this matter. Mr. Font Paulus testified that after July 8, 2010, he had contact with his daughter once on August 1, 2010 when she called him and did not leave a telephone number or the address at which she was staying. Following that date, Mr. Font Paulus was unable to ascertain her whereabouts until December of 2011 when he developed a belief that P .F.V. could be in Pennsylvania based on a birthday phone call received by Mr. Font Paulus's mother on December 31, 2010. Conversely, Ms. Vittini Cordero testified that she informed her ex-husband as to their move to Pennsylvania and that Facebook somehow provided the specific addresses, but this testimony was confusing, uncorroborated, and lacking in credibility. The Court declined to credit P.F.V.'s specific statements that she had kept her father updated on the addresses since it did not find it particularly credible due to the child's lack of maturity and her mother's influence. Instead, it found that even through the exercise of appropriate diligence that Mr. Font Paulus could not determine the location of his daughter from July 8, 2010 until December 31, 2010. Therefore, the one-year period for the application of the well-settled defense was tolled until December 31, 2010, and since the application was filed on May 24, 2012, this defense could not apply on its face.
However, the court held that even if the period were not tolled, the defense would be inapplicable since the facts did not suggest a stable residence in the United States. While there was very little evidence proffered at the hearing suggesting that P.F.V. was well-settled in the United States, there was significant testimony that her stay here had actually been rather chaotic. There was no affirmative evidence suggesting stability in the child's new residence, any consistency in the child's religious activities, whether the mother was employed or providing support, or whether there were any useful support structures which could assist the child and her mother within the United States. Instead, the testimony reflected a series of moves within New York City and within Pennsylvania, a disastrous fire which apparently destroyed all of P.F.V.'s possessions and killed her neighbors, and a subsequent period in which Ms. Vittini Cordero was so pressed to secure housing that she was unable to even contact friends or family members. The only fact which suggested that P.F.V. was well-settled was her uncorroborated statement that she had attended Trinity Academy since 2010. Even taken as true, this singular fact did not render her well-settled within the Untied States. Therefore, since the exception did not apply based on tolling, and since there were inadequate facts to support its application, it was not be applied to this case.
The Court found that the “wishes of the child” defense failed for the same reason, that any attachment P.F.V. has developed to the United States had largely been the product of the time she was wrongfully retained here and was not derived from the period in which Mr. Font Paulus permitted her to be here on vacation. P.F.V. did not express any strong attachment to the United States. Although P.F.V. testified that she did prefer life in the United States, this preference was largely based on that she had more friends and things here, and that she was getting better grades in her classes. This could hardly be characterized as a strong attachment. Even more fundamentally, the Convention looks to whether the child objects to being returned, and P.F.V. candidly explained that she would not object returning to the Dominican Republic where she also liked school and had friends. Therefore, since the child did not object to returning, this exception was denied.
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