Darin v. Olivero-Huffman, 2012 WL 3542514 (D. Puerto Rico)[Argentina] [Habitual Residence] [Consent]

In Darin v. Olivero-Huffman, 2012 WL 3542514 (D. Puerto Rico) on February 11, 2012, Lisandro Jonathan Darin (Petitioner) filed a Verified Petition for Return of Child against Lua Cecilia Olivero-Huffman (Respondent). The parties consented to proceed before this Magistrate Judge for all proceedings, including the entry of judgment On July 17 and 20, 2012 and on August 2 and 8, 2012, the trial was held.

Lisandro Jonathan Darin, Petitioner, and Lua Cecilia Olivero-Huffman, Respondent, were the natural parents of the child, who was born in Buenos Aires, Argentina on April 20, 2008. The child was citizen of the United States of America and of the Republic of Argentina. In 2007, Respondent traveled to Argentina to study dance therapy. Respondent bought an apartment in Argentina together with her sister.

In 2007, Respondent began a relationship with Petitioner and they began to live together in Respondent's apartment located in # 3357 Sarmiento Street, 1st floor, Apt. D, Buenos Aires. During her pregnancy, Respondent traveled with Petitioner to Puerto Rico and returned to Argentina. After their child was born, they moved with the child to an apartment, which belongs to Petitioner's family and was located in Villa Luro neighborhood. The parties traveled with the child to Puerto Rico on December 11, 2008, and returned to Argentina on February 9, 2009. While in Puerto Rico, they stayed at Respondent's mother's house located in # 514 Sagrado Corazon Street, San Juan.

The parties traveled with the child to Puerto Rico on March 24, 2009 for Respondent to take advantage of a work opportunity, and they returned to Argentina on August 7, 2009. While in Puerto Rico, they stayed at Respondent's mother's house. Respondent traveled alone with the child to Puerto Rico on January 19, 2010 under the terms agreed to and set forth in a Power of Attorney signed by the parties in Argentina, pursuant to which the child was authorized to travel to any country in the world accompanied by either of his parents, leaving the country and coming back when he/she considers it convenient, until the child becomes an adult. Respondent and the child returned to Argentina on April 2, 2010. While in Puerto Rico, they stayed at Respondent's mother's house. Petitioner revoked the Power of Attorney which authorized either of child's parents to travel with the minor. In mid-2010, the parties separated, and Respondent moved back with the child to her apartment.

The child began attending day care facility "Dulce de Leche", located near Respondent's apartment. On November 9, 2010, Respondent traveled to Puerto Rico alone and left the child with Petitioner under the agreement that the child would return under the care of Respondent upon her return to Argentina. The parties again moved in together and attempted a reconciliation. In late 2010, Respondent and her sister sold their apartment in Argentina. On January 31, 2011, the parties traveled to Orlando for vacation, and then traveled with the child to Puerto Rico on February 4, 2011. Upon arriving in Puerto Rico the parties and their child again stayed in Respondent's mother house. While in Puerto Rico in the first half of 2011, Respondent told Petitioner about her intentions to reside permanently in Puerto Rico with the child. Petitioner left Puerto Rico on July, 2011. Prior to Petitioner's departure to Argentina, Petitioner and Respondent subscribed and signed an affidavit on July 7, 2011, before Notary Public Jose Guillermo Perez Ortiz. Since February 4, 2011, Respondent and child had been living at # 514 Sagrado Corazon Street, San Juan, Puerto Rico. Since Petitioner's departure to Argentina he had continuous and frequent communication with his son by the use of telephone and internet. On December 19, 2011, Petitioner filed an application in Argentina to request remedies under the Hague Convention. On February 21, 2012, Petitioner filed a Verified Petition for Return of Child in the Federal Court for the District of Puerto Rico. During the 2011-2012 academic year, the parties' child had been attending school at "Escuela del Pueblo Trabajador" in Rio Piedras, Puerto Rico, and was enrolled for the 2012-2013 school year at the same school.

The Court pointed out that Respondent recognized in her answer to the petition that Petitioner was actually exercising custody rights when the alleged wrongful retention or removal occurred. The date on which the removal or retention took place was not an issue. It was undisputed Petitioner left Puerto Rico to Argentina on July 2011 and left his son under the care and supervision of his mother after signing an affidavit, as explained in detail herein below.

The Court observed that a majority of the circuits approach the question of habitual residence beginning "with the parents' shared intent or settled purpose regarding the child's residence." However, the Circuit courts are divided on the extent that parental intent should factor into the acquisition of a habitual residence. The First, Second, Fourth and Seventh Circuits place the primary focus upon parental intent, following the Ninth Circuit's decision in Mozes v. Mozes, 239 F.3d at 1067. The focus is on the parents' last shared intent in determining habitual residence. Under the Mozes' approach, the first inquiry when deciding whether a new habitual residence has been acquired is: did the parents demonstrate a shared intention to abandon the former habitual residence. This intent could develop during the course of the stay and need not be settled at the time of departure. The second inquiry under the Mozes' rationale is whether there has been a change in geography for an "appreciable period of time" that is "sufficient for acclimatization." Following Mozes, cases raising issues regarding parental intent fall into three general categories. The first category deals with cases where there was a mutual settled intent to change habitual residence. In this situation, courts are likely to find that the child's residence has changed. The second category consists of those cases where both parents intend the relocation to be temporary in which courts will not find a change in habitual residence if one parent decides to resettle in the temporary location. The third category under Mozes entails situations where parents agree to allow a relocation, but for an ambiguous or uncertain period of time. In these cases, it seems that the result centers on whether the stay was intended to be indefinite or whether there was a conflict in the parental intent. Where the intent points to an indefinite stay, courts have tended to find an abandonment of the prior habitual residence. Mozes further finds that parental intent cannot effect a change in the habitual residence "by wishful thinking alone," but that it must be accompanied by an actual "change in geography" plus an "appreciable period of time." Mozes recognizes that despite a lack of uniform parental intent, a relocation to a different country for a longer period of time may result in such a degree of acclimatization that the child acquires a new habitual residence.

According to the testimony of Petitioner, he traveled with Respondent and the child to Puerto Rico in February 2011 for vacation purposes with the intent to return to Argentina. While in Puerto Rico in the first half of 2011, Respondent told Petitioner about her intentions to reside permanently in Puerto Rico with the child. Petitioner averred this decision was against their original intent which was to return to Argentina by mid March 2011. Respondent testified that several times during her relationship with Petitioner and, since the beginning of the relationship she told him and his family, about her desire to live permanently in Puerto Rico with the child. At times, Petitioner was in agreement with Respondent's wish. When the couple traveled to Puerto Rico in February 2011, Petitioner was aware of Respondent's prior attempts to reside in Puerto Rico with the child and her intentions to do so. Respondent testified that during the stay in 2011, she delayed her return to Argentina because she had a car accident and was waiting for her sister to come to Puerto Rico to spend time with her and develop a business for their mother. During this period, Respondent found two part time jobs in Puerto Rico, bought a car and the child was sharing with his maternal family where he lived with Petitioner and Respondent, including grandparents, a cousin about his age, among other family members. Petitioner took care of the child at the house while Respondent worked. Petitioner made some attempts to start a business in Puerto Rico and he contacted a friend in Texas to try to start a business of selling used cars in Puerto Rico with no positive results. Petitioner also contemplated opening a restaurant in Puerto Rico. By mid March 2011, Respondent told Petitioner of her intentions to reside permanently in Puerto Rico with the child. Knowing already by mid 2011 that Respondent had intentions of residing in Puerto Rico permanently with the child, Petitioner left Puerto Rico to Argentina on July, 2011 after subscribing and signing with Respondent an affidavit on July 7, 2011, before a Notary Public. Petitioner testified he had to leave Puerto Rico because the family business in Argentina was falling apart and his visa was about to expire.

The affidavit which was signed in Puerto Rico by Petitioner and Respondent before a Notary Public, in its pertinent parts reads as follows: WE, LUA CECILIA OLIVERO-HUFFMAN, of legal age, single, employee and a resident of San Juan, Puerto Rico, and LISANDRO JONATHAN Darin, of legal age, single, property owner, and a resident of Buenos Aires, Argentina, under the most solemn oath do hereby declare: 3. Lisandro Jonathan Darin, for reasons beyond his will, must leave the country. 4. The son of the parties, Lucio Alejandro Angel Darin-Olivero, is not being abandoned by his father since he will be in charge of all of the events relative of the minor, who will be under the care and supervision of his mother, Lua Cecilia Olivero-Huffman, with the absence of his father Lisandro Jonathan Darin. 5. For the best well-being of the minor, Lisandro Jonathan Darin authorizes Lua Cecilia Olivero-Huffman to make all the necessary arrangements on behalf of their son in the areas of education, health, and in everything that may be necessary for the best interests and well-being of the minor. 6. The son of the parties, Lucio Alejandro Darin-Olivero, is authorized to travel with either of his parents in the absence of the other to any country in the world, returning to the same when deemed convenient, until he reaches legal age.

The Court found that the clear language of the affidavit showed a different residence at the time of signing the document for Petitioner and Respondent. Respondent identified herself as resident of San Juan, Puerto Rico and Respondent as resident of Buenos Aires, Argentina. The affidavit demonstrated that, before leaving to Argentina on July 2011, Petitioner voluntarily left the child in Puerto Rico under the care and supervision of his mother, Lua Cecilia Olivero-Huffman, with the absence of his father Lisandro Jonathan Darin. Petitioner authorized Respondent, for the best well-being of the child, "to make all the necessary arrangements on behalf of their son in the areas of education, health, and in everything that may be necessary for the best interests and well-being of the minor."Petitioner also agreed for the child "to travel with either of his parents in the absence of the other to any country in the world, returning to the same when deemed convenient, until he reaches legal age."

Respondent testified that their agreement and intent in signing the affidavit was for her to stay in Puerto Rico with the child and Petitioner would travel to Argentina for a period of time and would come back to Puerto Rico. After Petitioner left on July 2011 to Argentina, he did not make any child support payments to Respondent for the benefit of the child. Thus, Petitioner was exercising his joint custody rights with Respondent when, prior to his departure from Puerto Rico to Argentina, he voluntarily signed with Respondent an uncontested agreement before a Notary Public, in which Petitioner expressly consented to the child staying in Puerto Rico for an indefinite period of time, under the care and supervision of Respondent. Petitioner admitted the terms of the affidavit were for an indefinite amount of time.

The affidavit clearly showed the parents' last shared intent in determining habitual residence. It was hard to think of a more formal acquiescence or alternatively a waiver of Hague Convention rights than voluntarily entering into an agreement signed before a Notary Public as the one signed in this case. Based on the testimonies of Petitioner and Respondent, their intention when they left Argentina in January 31, 2011 to travel to Orlando and Puerto Rico on vacation was to return to Argentina, as they had done on the prior occasions they had traveled to Puerto Rico. However, that intention changed during their stay in Puerto Rico and by the signing of the affidavit. As the Mozes' court noted, one need not have a settled intention at the moment of departure; the intention may coalesce during the course of a stay abroad originally intended to be temporary. Petitioner and Respondent unequivocally agreed on July 2011 that their child would remain in Puerto Rico for an indefinite, extended period of time for a settled purpose as described in the affidavit. Thus, at the time Respondent allegedly removed or retained the child in Puerto Rico, Petitioner  had acquiesced/consented and, thus, the settled purpose was still in force. The Court concluded (under the Mozes' approach) that, a new habitual residence in Puerto Rico was acquired based on the parents' shared intention in signing the affidavit in which it was agreed the child was going to remain under the care and supervision of Respondent in Puerto Rico for an indefinite period of time. Moreover, there was a change in geography for an "appreciable period of time" that is "sufficient for acclimatization."

The Court concluded that Petitioner has failed to meet his burden and the alleged removal or retention of the child was not wrongful under the meaning of the Hague Convention. Because the parties' shared intent, as evidenced by the affidavit subscribed by both, was for the child to remain in Puerto Rico for an indefinite period of time under the care and supervision of Respondent, the court found the child was a habitual resident of Puerto Rico at the time of the claimed removal or retention. Because the child was habitually a resident in Puerto Rico, Respondent's alleged removal or retention of the child in Puerto Rico was not wrongful and the court did not need to engage in any further analysis. As such, the Petition was denied.