Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) [El Salvador] [Well-Settled in New Environment]

In Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) Dinora del Carmen Rivera Rivas filed a Petition for Return of Child to Petitioner. Both parties testified at the hearing, with Petitioner appearing telephonically from El Salvador. Petitioner had local counsel present in the courtroom, and Salvadoran counsel present with her in El Salvador. An interpreter was also provided by the Court.

The minor child, K.S.R., was born to Dinora del Carmen Rivera Rivas and Nathan Christian Segovia in El Salvador on August 30, 2003. The parents were never married . Both parents were born in El Salvador, but Segovia, previous to his relationship with Rivas and the birth of K.S.R., immigrated to the U.S. and obtained dual citizenship. The Respondent was a citizen of both the United States and El Salvador. K.S.R. was granted U.S. citizenship shortly after birth in addition to her Salvadoran citizenship. After her birth, K.S.R. lived continuously with her mother in El Salvador. Segovia visited K.S.R. occasionally in El Salvador but maintained his home with his family in Arkansas. Segovia also spoke frequently with K.S.R. by telephone.

On April 5, 2009, Segovia took K.S.R., with Rivas's permission, to the United States for what was to be a one week vacation to Disneyland and an opportunity for K.S.R. to meet her half-siblings. Segovia and K.S.R. were scheduled to return to El Salvador on April 11, 2009. Rivas contends that when she called to check on K.S.R. after the flight to the US, Segovia informed her that they had not gone to Disneyland but were, instead, in Arkansas at Segovia's residence. Segovia at some point told Rivas that he thought it would be better for K.S.R. if she lived with him in the United States.

K.S.R. was now 7 years old. Segovia presented evidence indicating that K.S.R. was well-adjusted to her life and family in the United States. She attended school and received good grades. She went on family trips with her father, step-mother, and half-siblings, and evidence presented by Segovia indicated that she got along well with her half-siblings. Phone records filed by Segovia, and testimony from both parties, indicated that Rivas had frequent contact with the family since K.S.R.'s arrival in the United States, although Rivas claimed that her contact with K.S.R. has been limited by Segovia.

Rivas filed a complaint pursuant to the Hague Convention on the Civil Aspects of International Child Abduction on July 9, 2010. Segovia contended that more than a year passed between retention of the child and commencement of proceedings in contravention of Article 12 of the Convention, and the child was now "settled in her environment." Segovia contended that Article 13 of the Convention does not require return of the child if it is established by clear and convincing evidence that return of the child will result in psychological or physical harm. Segovia contended that the child need not be returned, under Article 12, if the child has "attained an age and degree of maturity at which it is appropriate to take account" of their views and they object to being returned.

The Court noted that some of Segovia's allegations were previously considered in Arkansas State Court, in an ex parte proceeding which ultimately granted custody to Segovia. The Court emphasized that Article 16 of the Hague Convention provides that proceedings in an abducted-to-nation (here the United States) may not determine custody issues. Hague Convention, Art. 16. The Convention imposes and requires a preliminary determination of which country has jurisdiction to consider custody questions. Silverman v. Silverman, 338 F.3d 886, 890 n. 8 (8th Cir.2003). While this Court, in its discretion, may take into consideration the reasoning behind the Arkansas State Court's findings, Miller v..Miller, 240 F.3d 392,402 (4th Cir.2001), the Court is not bound by those findings and limits itself to consideration of only the narrow question presented by Rivas's Petition under the Convention.

Segovia did not dispute that Rivas could meet her initial burden of establishing wrongful retention under the Convention. Accordingly, the Court found that Rivas could satisfy her burden of establishing that K.S.R. was wrongfully retained in the United States by Segovia.

The Court found that Segovia left El Salvador with K.S.R. on April 5, 2009. They were to return to El Salvador on April 11, 2009. Rivas did not file this Complaint until July 9, 2010. Using either of the April dates, more than a year passed between the wrongful removal/retention and the commencement of proceedings. However, the Respondent should not benefit from the effects of his own actions and the barriers the Petitioner faces in bringing an action. Antunez-Fernandes, 259 F.Supp.2d at 815; see also 51 Fed.Reg. 10,494, 10,509 (1986) ("The reason for the passage of time, which may have made it possible for the child to form ties to the new country, is also relevant to the ultimate disposition of the return petition."). In this case, both parties admitted that there were ongoing discussions about arriving at a mutual agreement for the return of the child. Although an agreement was never reached, it would not be a stretch of logic for Rivas to have believed that Segovia may have eventually returned K.S.R. without the intervention of the courts. Rivas started the process required by the Convention, by filing an Application with the Central Authority in El Salvador, in October of 2009. The Court held that Segovia should not be allowed to benefit from any lingering hope that Rivas may have had in reaching a more amicable solution or for any obstacles Rivas may have faced in ensuring that her application was processed expeditiously. For these reasons, the Court found that the reasons for the passage of time after K.S.R. was removed from El Salvador, mitigate against allowing Segovia to benefit from the effects of his own actions in wrongfully retaining K.S.R. in the United States.

Segovia presented much evidence that K.S.R. was well-settled in Arkansas. K.S.R. received good grades in school and her artwork was entered into a local contest. Segovia provided pictures of her interacting with family and friends in various situations. Both Rivas and Segovia testified that K.S.R. continued to have frequent contact with her mother. K.S.R. had other family in El Salvador as well, including half-siblings. Therefore, although K.S.R. had, naturally, grown accustomed to her environment in the United States over the past year, she also maintained consistent ties with her habitual residence of El Salvador. The Court had no doubt that K.S.R. would be academically successful in El Salvador. K.S.R., in speaking directly with the Court in camera, with only the judge and a clerk present, expressed that, while she enjoyed living in the United States, she missed her mother. The Court found that Segovia had not met his burden of establishing, by a preponderance of the evidence that the "well-settled defense" should apply in this case and prevent the return of K.S.R.

to her habitual residence of El Salvador. Even had Segovia, been able to establish this affirmative defense, the Court stated that it would find, in its discretion, that ordering K.S.R.'s return would nevertheless be necessary to further the aims of the Convention. The Court noted that Segovia retains Salvadoran citizenship but chose not to avail himself of any judicial remedies available to him in El Salvador to seek custody of his daughter. Instead, he chose to retain his daughter in the United States and seek custody of K.S.R. here. This was precisely the kind of situation that the Convention was designed to discourage.

At the evidentiary hearing, Segovia argued that K.S.R. would be at risk if returned to El Salvador because she may have witnessed an act of domestic violence between her mother and another woman. Rivas denied that any such incident had ever taken place. The Court held that regardless of whether the incident occurred, the type of risk Segovia sought to establish would not rise to the kind of "grave risk" contemplated by the Convention. "[O]nly severe potential harm to the child will trigger this Article 13b exception." Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995). There are two types of grave risk that are appropriate under Article 13(b): sending a child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect." (Friedrich II, 78 F.3d at 1060 and Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001)). This exception was not intended to apply to a "return to a home where money is in short supply, or where educational or other opportunities are more limited ... An example of an 'intolerable situation' is one in which a custodial parent sexually abuses the child." 51 Fed.Reg. 10494.

The Court observed that "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, Art. 13. Pitts, 481 F.3d 1279, 1286 (10th Cir.2007)). A child's expression of a generalized desire to remain in a familiar place, without more particularized objections to being returned, are generally insufficient to invoke the application of this exception. The Court, without making a finding as to whether a seven-year-old may have the sufficient age and maturity to invoke this exception, found that K.S.R. was not of sufficient age and maturity to warrant the application of the exception in this particular case. Furthermore, K.S.R. did not express any particularized objections to being returned to El Salvador during in camera conversation. Therefore, the Court found that application of this exception was not appropriate in this case. Accordingly, Petitioner Dinora del Carmen Rivera Rivas's Petition for Return of Minor Child was granted.