Tuesday, July 3, 2012
In Reyes v Jeffcoat, 2012 WL 2428587 (D.S.C.) the Petitioner, Maritza Meszaros Reyes and the Respondent, Harry Lee Langford Jeffcoat were married and had three children, one of whom was over the age of 16. On January 21, 2012, Petitioner commenced a suit by filing a Verified Petition for Return of Child to Petitioner and for Issuance of a Show Cause Order. Petitioner and Respondent filed divorce proceedings in Venezuela and in the United States, respectively. Both proceedings were stayed while this court decided the issues. Over the course of the trial, the court heard testimony from live witnesses who came from both the United States and Venezuela, witnesses by video conference from Venezuela. The court took in camera testimony from all three children.
The Court found that Petitioner and Respondent were married in Venezuela in 1993. They had three children-an oldest son, born in 1994; a daughter, born in 1996; and a youngest son, born in 2000. All three children had dual citizenship. Petitioner was a citizen of Venezuela. Since 2003, she held a United States Permanent Resident Card (also known as a green card), which she used each time she entered the United States. Respondent was a citizen of the United States. Between 1992 and 2003, he
possessed a Venezuelan resident visa, allowing him to permanently reside in Venezuela. That visa expired in 2003. He had not been authorized to live or work in Venezuela since 2003. Each time Respondent entered Venezuela since 2003, he entered as a tourist and was prohibited from staying in Venezuela for longer than 90 consecutive days. The family resided in Venezuela from 1993 until 2001. The Respondent was employed in Venezuela from 1993 to 2000. The Petitioner remained continuously employed in Venezuela, except for a two-year period beginning in 2001 when the Respondent took a job in South Carolina and Petitioner took a "leave of absence" from her employment. In 2001, the family moved to South Carolina.
Between 2001 and 2011, all three children spent substantial amounts of time in
both the United States and Venezuela. They participated in various activities, including educational, religious, social, musical, and athletic endeavors while present in each country. Since 2006, the Petitioner owned a large apartment in Caracas, Venezuela, and, since 2008, the Petitioner and the Respondent jointly owned a large house in Lexington, South Carolina. Both properties were capable of being a home for the entire family. Between 2006 and 2008, the father and children resided in Lexington, South Carolina. During this time, the children attended school at Heritage Christian Academy in Lexington, South Carolina. The parties' daughter began attending Heritage in the 2005-2006 school year. Both the daughter and the youngest son attended Heritage for the full 2006-2007 and 2007-2008 school years. Beginning in September 2008 and continuing until September 2011, the father and the children frequently traveled between the United States and Venezuela. The father and children never spent more than 90 consecutive days in Venezuela. The only time that they spent more than 90 consecutive days in the United States was from June 9, 2011 until September 12, 2011, the time period immediately preceding the date on which the mother alleged that the wrongful retention began.
Since 2008, the children were home schooled through the South Carolina
Association of Independent Home Schools. Mostly, the children worked on their studies in Caracas, Venezuela; however, educational activities also took place while the children were present in Lexington, South Carolina. Between September 2008 and September 2011, the children regularly traveled between the United States and Venezuela, using their United States passports when entering and exiting Venezuela and the United States. When they entered Venezuela, the children entered as tourists.
In October 2009, the parties renewed the three children's United States passports. The renewal applications for the United States passports listed the Lexington, South Carolina address as the children's permanent address. In May 2011, the parties renewed the daughter's and the oldest son's Venezuelan passports. The renewal applications for the Venezuelan passports listed the Caracas, Venezuela address as the children's current residence. Since 2008, the children were covered by a United States based health insurance plan through the mother's employer. The children's primary pediatrician and dentist were located in South Carolina. The children had received pediatric and dental care in Venezuela. The children's only orthodontist and eye doctor were located in South Carolina. They never received orthodontic or ophthalmologic care in Venezuela. The children indicated that they considered themselves Americans and wished to remain in the United States.
The Court concluded that because only two of the parties' children were under the age of sixteen, it would only make a determination as to whether those two children were wrongfully retained by the Respondent on or about September 12, 2011. It observed that Federal courts have developed a two-part framework to assist in the habitual residence analysis." Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). Under the two-part framework, courts evaluate the following: (1) shared parental intent-whether the parents shared a settled intention to abandon the former country of residence; and (2) acclimatization-whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment. With regard to shared parental intent, federal courts have cautioned that " 'the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence.' "(quoting Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir.2005)). Federal courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence. The question of acclimatization " 'is not simply whether the child's life in the new country shows some minimal degree of settled purpose,' but whether the 'child's relative attachments to the countries have changed to the point where ordering the child's return would now be tantamount to taking the child out of the family and social environment in which its life has developed.' " (quoting Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). With regards to the acclimatization of the children, courts have considered the following: school environment; participation in social activities; the length of stay in the relative countries; and the child's age.
The Court found the facts of the case distinguishable from those of other cases were federal courts have explored the habitual residence of children under the Hague Convention. Because this family was a family of considerable means, many of the factors that federal courts consider in determining habitual residence (both those under shared intent and acclimatization) were unhelpful in the analysis of habitual residence in this case. It was clear from the facts presented that the parties' children had full and active lives in the United States and in Venezuela. The parties had very nice homes in both countries, and the facts show that the children spent considerable time in both places throughout their lives.
The following facts supported the mother's argument that as of September 12, 2011, the parties' children were habitually resident in Venezuela: the mother, the sole provider of the family since 2006, was employed as an attorney in Venezuela and is only licensed to practice in Venezuela; between September 2008 and September 2011, the children completed the majority of their homeschool activities while physically located in Venezuela; and * between September 2008 and September 2011, the children's time in the United States was during times traditionally considered holiday/vacation. The following facts supported the father's argument that as of September 12, 2011, the parties' children were habitually resident in the United States:
the children lived and attended school in South Carolina from 2006 to September 2008; the children participated in a South Carolina homeschool curriculum; the father was prohibited from remaining in Venezuela for more than 90 consecutive days; since 2008, the children always entered Venezuela as tourists using their United States passports; and the children's primary pediatrician and dentist were located in South Carolina, and the children's only eye doctor and orthodontist were located in South Carolina.
In balancing all of the facts, this court resolved the issue of habitual residence in favor of the father and found that since approximately 2006, the children's habitual residence had been the United States. Importantly, although the children stayed in Venezuela for an appreciable period of time from September 2008 to September 2011, they continued to travel in and out of Venezuela as tourists using their American passports. Also, their father, who administered their homeschool lessons, entered Venezuela as a tourist and was prohibited from staying in Venezuela for more than 90 days at a time. As such, neither the father nor the children were ever present in Venezuela for 90 consecutive days or more during the three-year period from September 2008 to September 2011. It may have been the mother's intent for her family to move to Venezuela in September 2008; however, the father did not share her intent, and the children's pattern of travel and their activities from September 2008 to September 2011 were not sufficient to establish Venezuela as their new habitual residence. Thus, from September 2008 to September 2011 the habitual residence of the children remained the United States.
Accordingly, the court found that Petitioner had not proven a prima facie case of wrongful retention and denied the petition.