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Saturday, December 28, 2013

Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) [Singapore] [Consent or Acquiescence] [Motion to Dismiss]

[Singapore] [Consent or Acquiescence] [Motion to Dismiss]

In Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) on August 21, 2013, Petitioner Fred Jay Skolnick filed a Verified Petition seeking the return of his five minor children to Singapore. Respondent  moved to dismiss the Amended Petition for failure to state a claim. Respondent contended that Petitioner has "waived" his right to seek relief under the Hague Convention or alternatively that he "acquiesced" in  the retention of the children in the United States by stipulating during the proceedings to the Respondent having  temporary physical custody pending the outcome of the action. Respondent's motion was denied.

According to the Amended Verified Petition Petitioner and his wife, Respondent Andrea Wainer, were both American citizens and were married in the United  States in November 1999, but  never lived here together as a married couple. They had five minor children together ranging in ages from four to twelve years old,  all of whom were born in either Hong Kong or Tokyo.   In June 2011, while the parties were living in London, Ms. Wainer filed for divorce in the Principal Registry of the Family Division, London, England (the "London Action").  In January 2012, the parties mutually agreed to move to Singapore with their children while the London Action was pending. In May 2013, with the aid of a meditator, the parties reached an agreement for shared custody in which the children  would continuously live in the same apartment, and Petitioner and Respondent would alternate between living in this apartment with the children and their own studio  apartments in the same building. Petitioner alleged that shortly after reaching this agreement, Respondent unlawfully removed the children from Singapore to the United States.    Starting in April 2012 and up until the time of removal on May 31, 2013, Petitioner alleged that the parties and their five children were habitual residents of Singapore within the meaning of the Hague Convention. Petitioner contended that under Singaporean law, he had rights of custody and was actually exercising such rights up until the wrongful removal.  On July 10, 2013, Petitioner filed an action in the High Court Republic of Singapore  seeking the return of the children.   Petitioner filed this action in the United States District  Court for the Eastern District of New York, on August 21, 2013, which was transferred to this Court on September 20, 2013.  

 On October 17, 2013, the parties entered into a stipulation which provided, inter ali, that "the parties shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer, and the children remaining enrolled in Greenwich public schools.  "After an initial period of reunification" with the children, Mr. Skolnick was to have "liberal and reasonable access to the Minor Children by phone, fax, e-mail, text message and/or Skype, as well as visitation as to be agreed upon by the parties."

            On November 22, 2013, the Court held a hearing on Petitioner's motion for an emergency order for visitation with the children. The parties were able to come to an agreement to retain the services a child psychologist "to facilitate reunification between the children and Mr. Skolnick" starting the next morning with the purpose of enabling him to have "reasonable and liberal access to the children going forward" until Mr.
Skolnick's departure to Singapore on December 1, 2013, and thereafter upon future visits pending the resolution of this action.

        The District Court observed that to survive a motion to dismiss, a complaint must contain sufficient  factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)  (quoting  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."  Conclusory allegations are not sufficient. .

        Ms. Wainer contended that there "is a dearth of factual allegations in the Petition regarding Petitioner's custody rights and the exercise of those rights"to state a plausible claim.  Respondent also contended that by  signing the Stipulation providing Ms. Wainer with primary physical custody, Petitioner "waived" his right to seek relief under the Hague Convention, or in the alternative, that by doing so, he "acquiesced" in the retention of the children in the United States
           The district court observed that to state a claim under the Hague Convention, Petitioner must allege (1) that the children were habitually resident in Singapore and removed to or retained in the United States, (2) that Petitioner had a right of custody under Singaporean law, and (3) that he was actually exercising this right at the time of removal. The Court found that under these standards, the Amended Petition amply alleged a Hague Convention claim. Petitioner alleged that as the natural parent of the children, he had a right of  custody under Singaporean law.  The Amended Petition further alleged that the parties mutually agreed to relocate to Singapore and establish it as their  habitual residence, and up until the children's removal in May 2013, exercised joint  physical custody over the children. The Amended Petition also detailed how the parties reached an elaborate agreement for shared custody in Singapore whereby the children would continuously live in the same apartment, and Ms. Wainer and Mr. Skolnick would alternate between the children's apartment and their respective separate studio apartments in the same building. Once the five children were removed from Singapore, the Amended Petition described how Petitioner attempted to pursue legal remedies in Singapore and the United States, and traveled to Connecticut in an attempt to reunite with his children. Accordingly, Petitioner stated a plausible claim for relief under the  Hague Convention. See  Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir.2013)  ("Hofmann's multiple visits to New York as well as his participation in family vacations demonstrated that he was exercising his custodial rights up to the time the divorce  proceedings were initiated."); Norden-Powers v. Beveridge, 125 F.Supp.2d 634, 640  (E.D.N.Y.2000).

      Respondent argued that by signing the Stipulation, "Petitioner waived his rights under the Hague Convention by stipulating to primary physical custody of the parties' children" with Respondent.  Respondent also asserted that by signing the Stipulation, Petitioner "acquiesced" in the retention of the children in the  United States. The Court found that Respondent's "waiver" argument was really one of ripeness or jurisdiction. She asserted that "Petitioner does not have a claim for wrongful retention at this time because, pursuant to the parties' agreed upon Stipulation, Ms. Wainer is to have physical custody of the children in Greenwich at least until January 8, 2014. And, there is no express or implied provision in the Stipulation that on January 8, 2014, Ms. Wainer is to return the children to Singapore."  Because Respondent was entitled to exercise primary physical custody over the children under the Stipulation, she asserted that Petitioner's Amended Petition alleged no more than an "anticipatory breach of the parties' Stipulation."    An Article III court cannot entertain a claim that is not ripe, i .e. one "which is based upon contingent future events that may not occur as anticipated, or indeed may not  occur at all." Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir.1998)

        The Court noted that a Hague Convention claim can allege either "wrongful removal or retention," 42 U.S.C. § 11603(f)(2) and, Petitioner amply alleged wrongful removal. This allegation was sufficient to state a justiciable claim for relief. To the extent that Respondent asserted that due to the Stipulation her retention of the children was no longer "wrongful," this assertion went to the affirmative defense of acquiescence Respondent cites two cases purporting to  support her jurisdictional argument:  Toren v. Toren, 191 F.3d 23, 25 (1st Cir.1999) and Falk v. Sinclair, 692 F.Supp.2d 147 (D.Me.2010) for the proposition that "there can be no wrongful retention until such time as the children are required to be returned to Singapore" under the terms of the Stipulation. As an initial matter, the Court held that whether events subsequent to the filing of the Amended Petition defeat Petitioner's claim speak to the affirmative defense of acquiescence. Respondent's invocation of this affirmative defense is not properly considered on  Respondent's motion to dismiss. Affirmative defenses may only "be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment  procedure, if the defense appears on the face of the complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). The Stipulation upon which Respondent relied was not signed until after Petitioner filed the Amended Petition. The resolution of this defense on a motion to dismiss is especially inappropriate here given that "even where the grounds for one of [the] 'narrow' exceptions have been established, the district court is not  necessarily bound to allow the child to remain with the abducting parent," and must exercise its discretion in light of the entire record developed at a hearing on the merits to consider whether such an order would further the aims of the Convention. Blondin, 189 F.3d at 246 n.4.
        On the merits, Respondent's argument failed as well. As Respondent acknowledged "acquiescence under the Convention requires either: an act or statement with the  requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period  of time." Friedrich, 78 F.3d at 1070. The showing required is "stringent."   Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir.2005). The Stipulation was drafted to modify the First Superior Court Ex Parte  Protective Order, which was entered without Petitioner's consent and prevented him  from exercising custody or visitation rights. Rather than evincing Mr. Skolnick's intent to renounce his rights, the Stipulation expanded his rights in contrast to the limitations imposed by the First Superior Court Ex Parte Protective Order.

   The parties agreed that they "shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer.  The Stipulation also provided that it was entered into "without prejudice to either party's claims" before this Court, "the action pending in London or the Singapore Action including, but not limited to, any claims regarding custody of or visitation with the Minor Children." Another provision appeared to not only undermine Respondent's  argument, but also to prohibit her from even advancing it: "No adverse inference shall be drawn from the continuation of the Conditions of  Protection pursuant to this Stipulation or the underlying Order, and neither party nor its  attorneys in any jurisdiction shall request any tribunal to do so."    Far from "a convincing written renunciation of rights," Friedrich, 78 F.3d at 1070, by its own terms the Stipulation evinced the parties' intent to reach a temporary agreement for custody, and for Mr. Skolnick to gain, not renounce, his access to the children pending the outcome of this case. The parties' Stipulation clearly evinced their intent only to preserve the  status quo pending the resolution of this action. Thus, this provisional agreement does not meet the stringent standards for a finding of acquiescence.

Monday, December 23, 2013

Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) [Scotland] [Habitual Residence]

In Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) Mr. Chaffin appealed the decision of the district court granting Lynne Chafin's (Ms. Chafin) petition for wrongful removal following remand from the United States Supreme Court. Chafin v. Chafin, --- U.S. ----, 133 S.Ct. 1017, 1028 (2013). The Supreme Court held that Mr. Chafin's appeal was not rendered moot because it was uncertain whether the determination of his daughter's habitual residence was correct.  The Court of Appeals affirmed finding that Mr. Chafin had not  demonstrated that the district court's findings of fact were clearly erroneous, and that it  correctly applied the law to the facts.

           Mr. Chafin, a United States citizen, married Ms. Chafin, a citizen of the United  Kingdom, in 2006. While Mr. Chafin was deployed to Afghanistan, Ms. Chafin took their  daughter, E.C., to Scotland. Later, Mr. Chafin was transferred to Alabama. It was around this time that the couple began to experience marital conflict. In February 2010,  after several years of living in Scotland, Ms. Chafin took E.C. to Alabama for what the district court concluded was "at most ... a trial period, which did not work out. Following
attempts at reconciliation, Mr. Chafin filed for divorce and custody in Alabama. The district court found that Mr. Chafin removed E.C.'s passport, wrongfully retaining E.C. in the United States and  effectively preventing Ms. Chafin from returning to Scotland.  In February 2011, following a charge for domestic violence which was subsequently dropped, Ms. Chafin was deported.  After a bench trial, the district court found that E.C.'s country of habitual residence was Scotland and that Mr. Chafin failed to establish by clear and convincing evidence that returning E.C. to Scotland would expose her to grave risk of harm.

The Court of Appeals observed that under the Convention and the ICARA, judicial determinations of ICARA petitions requesting the return of children who have been wrongfully taken or retained must be  done in an expeditious manner.  The Convention proposes a six-week timeframe from the initial filing of the petition to a decision regarding return. Art. 11. While other countries have enacted provisions containing mandatory timeframes for return proceedings and appeals, Congress did not provide such a timetable when enacting the ICARA. The  Supreme Court has recommended that "courts ... take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation." Chafin, 133 S.Ct. at 1027. It observed that this case had been ongoing for more than three and a half years.  E.C. was four years old when Ms. Chafin filed the petition; she was now at least six years old  and the question of her habitual residence still remained.
The Court noted that it employed  a mixed standard of review for determining habitual residence  under the Convention. It reviews the district court's findings of fact for  clear error and its legal determinations and application of the law to the facts de novo.  When analyzing the question of habitual residence, after an initial finding that parents lack a settled intent to abandon their child's prior  habitual residence for a new one, the burden is on the party asserting a change in habitual  residence increases.  In such cases, courts should be hesitant to find a change in habitual residence unless the facts point "unequivocally to a change," or the court can confidently conclude that the child's attachments have changed such that returning them to the original forum would be extremely disruptive.

   Mr. Chafin argued that the district court clearly erred in finding that he retained E.C.'s U.K. and U.S. passports because Ms. Chafin had E.C.'s U.S. passport and could have returned to Scotland with E.C. but chose not to leave; that the district judge erred by deciding to credit Ms. Chafin's testimony during the bench trial more heavily than Mr. Chafin's evidence that she intended to remain in Alabama permanently. In contrast, Ms. Chafin insisted that the  objective facts indicated that she came to Alabama on a tourist visa for a trial period to work on her strained marriage and was prevented from returning to Scotland with E.C. because Mr. Chafin hid E.C.'s passports.

   The Court indicated that its  analysis in the Ruiz case was instructive. There, it affirmed the district court's  initial finding that the parents lacked a shared intention to abandon their prior U.S. residence and make Mexico the habitual residence of their children.  Ruiz, 392 F.3d at 1254. In the absence of a settled intention to change residence, the court looked to the objective facts, finding that they pointed to a determination that the prior residence had not been abandoned and habitual residence in Mexico was not established. Despite several facts pointing toward the conclusion that Mexico was their new residence, including the family's length of stay, the construction of a new house, and Mr. Ruiz's employment, it concluded that the entirety of the evidence tended to show that  the move from the United States to Mexico was conditional.  In the present case, the district judge found that the testimony and evidence established that Ms. Chafin decided to return to Scotland with E.C. in early May 2010, and that but for Mr. Chafin serving her with a petition for divorce and an emergency  custody restraining order, she would have left the United States with her  daughter. Ms. Chafin testified that she and E.C. came to the United States in February, 2010 on a ninety-day visitor visa that is only issued with proof of a return ticket. The district court noted that this evidence was not contradicted. In an attempt to save their marriage, Mr. and Ms. Chafin took a trip together in April, 2010, which both agreed was unsuccessful. Ms. Chafin testified that, following that trip, she and Mr. Chafin agreed to work out a separation so that she and E.C. could return to Scotland.  However, before Ms. Chafin could return, Mr. Chafin served her with an emergency custody petition and removed E.C.'s passports from their location. The district court found credible Ms. Chafin's testimony that she could not leave the United States without E.C.'s U.K. passport. The district court found that E.C. was wrongfully retained in the United States as of May 15, 2010, when Mr. Chafin removed her passport from its location. Further, Ms. Chafin's testimony that she believed Mr. Chafin  would be transferred to Germany in September, 2010 indicated to the district court a  lack of intent to allow E.C. to remain in the United States permanently. Finally, the district court emphasized the fact that Ms. Chafin maintained her residence in Scotland and did not cancel E .C.'s planned enrollment in Scottish school when she came to Alabama in February, 2010.

       Here, as in Ruiz, the district court found that the parties did not have a settled intent to  change E.C.'s habitual residence from Scotland to Alabama.  It was not clearly erroneous.  If there is no settled intent on the part of the parents to abandon a child's prior habitual residence, "courts should be hesitant to find a change in habitual residence unless objective facts point unequivocally to a change or the court can 'say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount' to changing the child's family and social environment."(quoting  Mozes, 239 F.3d at 1081). Here, there were objective facts pointing to each country, and the de novo review confirmed that it was not unequivocally clear that E.C.'s habitual
residence in Scotland was abandoned for a new habitual residence in Alabama. Therefore, it affirmed the district court's decision to grant Ms. Chafin's petition.

Weintraub v Waite, 2013 WL 6622899 (W.D.Wash.) [Sweden] [Federal & State Judicial Remedies] [Summary judgment]

          In Weintraub v Waite, 2013 WL 6622899 (W.D.Wash.) Petitioner moved for    Summary judgment . The district court observed that the moving party is entitled to judgment as a matter of law when  the nonmoving party fails to make a sufficient showing on an essential element of a  claim in the case on which the nonmoving party has the burden of proof.  Celotex Corp.  v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present  specific, significant probative evidence, not simply "some metaphysical doubt."). See alsoFed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986);  T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir.1987).

     The record showed that the children of the parties were retained in the United States after a vacation trip from Sweden on August 3, 2013, when their return to Sweden was planned.    It appeared clear from the record that immediately prior to the retention of the children in the United States, the children were habitual residents of Sweden, where their family home had been established with their mother and father. The retention of the children in the United States breached the rights of custody of the petitioner under the law of Sweden.    The petitioner was exercising parental rights at the time of the retention of the children in the United States. There was no material issue of fact as to whether he was exercising parental rights in Sweden and during their visit to the United States prior to August 3, 2013. The Court found that the children were wrongfully retained in the United States. However, a material issue of fact remained as to whether there was a grave risk that the childrens' return that would  expose them to the physical or psychological harm, or otherwise place the child in an intolerable situation, under the Hague Convention Article 13(b), if  ordered returned to Sweden. The court held that the question of whether respondent's proof reached the clear and convincing standard could best be resolved at hearing.   Another question remained as to whether the children would be at grave risk if they returned to Sweden in the company of their mother. The court set the matter down for a hearing limited to the issue of whether the return of the children to Sweden would present such a grave risk to them. To the foregoing extent, the petitioner's Motion for Summary Judgment was granted in part and denied in part.

Monday, December 16, 2013

Mendoza v Silva, 2013 WL 6491479 (N.D.Iowa)[Mexico] [Habitual Residence] [Consent or acquiescence] [video testimony] [Petition Granted] [Stay pending appeal denied]

In Mendoza v Silva, 2013 WL 6491479 (N.D.Iowa) Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed an action to secure the return of her daughters, five-year-old K.G.M.A. and four-year-old M.K.M.A.. At the consolidated trial on the merits and preliminary injunction hearing, Ms. Mendoza testified by video conference from Mexico .The parties wer married on September 15, 2006, in Celaya, Guanajuato, Mexico. At the time, Ms. Mendoza was a Mexican citizen, but Mr. Medina had been living in the United States since he was about five years old, and he had been a naturalized United States citizen since September 17, 2004. Mr. Medina lived in Storm Lake, Iowa, with his parents. Ms. Mendoza gave birth to the parties' first child, K.G.M.A., a daughter, in 2007, and their second child, M.K.M.A., also a daughter, in 2009, both in Celaya, Guanajuato, Mexico. The parties had a third daughter, K.V.M.A., who was born in 2011, but who had remained in the custody of Ms. Mendoza in Mexico. The parties' two older children were United States citizens.

After the parties married in 2006, Mr. Medina lived primarily in the United States. He would live in the United States for about six months at a time, he would visit Ms. Mendoza and the children in Mexico for about two months, then he would return to the United States alone for another lengthy period. During Mr. Medina's visits to and absences from Mexico, the children consistently lived with Ms. Mendoza in Mexico. Ms. Mendoza lived with Ms. Mendoza's mother in her mother's house, and Ms. Mendoza paid rent to her mother. After the parties' children were born, they also lived with Ms. Mendoza and her mother when they were in Mexico. After M.K.M.A. was born, both of the older children attended daycare and preschool in Mexico and received regular medical care there. K.G.M.A. was registered for and assigned to an elementary school in Celaya.

The parties separated permanently in July 2012. Ms. Mendoza testified that the separation came after Mr. Medina assaulted her. Ms. Mendoza testified that, prior to their separation, Mr. Medina assaulted her on a regular basis. Mr. Medina did not dispute the separation, but asserted that Ms. Mendoza's definition of "assault" was simply raising his voice. The only divorce proceeding initiated by either party was one filed by Mr. Medina in the Iowa District Court for Buena Vista County. Mr. Medina's Petition For Dissolution Of Marriage was filed on November 15, 2013.

Mr. Medina asserted that Ms. Mendoza had contacted him and demanded that he take the children, because she no longer loved them or wished to care for them. The only circumstantial evidence that Mr. Medina offered in support of this position were some text messages that Ms. Mendoza sent to Mr. Medina on May 12, 2012, although the parties disputed both the significance and the translation of these text messages. Mr. Medina testified that he and Ms. Mendoza thereafter arranged for the two older girls to come to the United States permanently, beginning in December 2012. Ms. Mendoza described the text messages as a momentary venting of frustration, but that she never agreed nor wanted the children to go to the United States permanently.

Ms. Mendoza contended that, when Mr. Medina and his mother, Lucina Medina, arrived at the boarder to pick up the children, they told Ms. Mendoza that Mr. Medina planned to keep the children for at least six months, instead of returning the children in six or eight weeks, as previously agreed, and that Ms. Mendoza objected. Mr. Medina and his mother testified that there had been no prior agreement for a short visit by the children; rather, the agreement was for the permanent transfer of the two older children to the United States. They testified that Ms. Mendoza suddenly reiterated her prior demands that Mr. Medina again take her across the border illegally, as well as the children, this time so that Ms. Mendoza could go to Texas to be with a man with whom she had struck up a relationship over the internet. A physical altercation between Ms. Mendoza and Mrs. Medina occurred on December 8, 2013. The Mexican federal police intervened and that Ms. Mendoza was detained overnight by the Second Agency of the Public Ministry of Family Protection for assaulting Mr. Medina's mother. The parties reached an agreement to resolve the dispute at the border (Exhibit S), but their versions of that agreement differed very substantially. Mr. Medina and his mother both testified, however, that the only agreement reached with anyone was that Lucina Medina would drop the charges against Ms. Mendoza arising from the altercation on December 18, 2012, and that Mr. Medina and his mother would be allowed to take K.G.M.A. and M.K.M.A. to the United States permanently, as previously agreed. Lucina Medina testified that what purported to be her signature on Exhibit S is "the way [she] writes it." She also testified, however, that she did not read or write much Spanish or English, and that trying to read something as long as Exhibit S would have given her a headache. She testified that, to the extent that anyone explained any agreement to her, she understood that it was for her to drop the charges against Ms. Mendoza and for her and Mr. Medina to take the children to the United States. Mr. Medina admitted that his mother's signature was on Exhibit S, but denied that what purported to be his signature was his signature. He also denied that there was ever any agreement for the return of the children on February 2, 2013. He also testified that he was not a party to any agreement and that the only agreement at the border was between his mother and Ms. Mendoza to drop the charges against Ms. Mendoza, so that she would not have to spend any time in prison and so that he and his mother could take the children to the United States. Mr. Medina also denied ever having read either Exhibit S or the English translation of it prior to reading it while in the witness box on the second day of the consolidated trial and preliminary injunction hearing on December 5, 2012, notwithstanding that it was an exhibit that was served on him with Ms. Mendoza's Verified Complaint. Ms. Mendoza testified that when she called Mr. Medina to talk to the children in the United States in January 2013, Mr. Medina told her that she should not bother showing up to pick up the children on February 2, 2013. Ms. Mendoza objected and told Mr. Medina that she expected him to return the children as agreed. That telephone conversation was the last contact that Ms. Mendoza had with Mr. Medina or her two oldest children until these proceedings were initiated. On February 2, 2013, Ms. Mendoza arrived at the bus station in Nuevo Laredo and waited until 7:00 p.m., the time that the parties had agreed that the children would be returned, but Mr. Medina did not arrive with the children.

Mr. Medina also argued that, after he retained the children in the United States, Ms. Mendoza acquiesced in his doing so. Ms. Mendoza testified that, after her last call to Mr. Medina in January 2013, he changed his telephone number and his address, because she was unable to contact him or the children by telephone, and that she did not have any means of contacting or locating the children, Mr. Medina, or Mr. Medina's family. She contended that her attempts to contact Mr. Medina or the children by telephone, e-mail, or "facebook" had been ignored by Mr. Medina. Mr. Medina admitted that he and his parents had obtained a new telephone number in January 2013, which he had never provided to Ms. Mendoza, and that he and his parents (with his children) moved to a new address in Storm Lake, Iowa, in August 2013, which he admitted that he also had never provided to Ms. Mendoza. He testified that he did not take any steps to convey his new contact information to Ms. Mendoza, because he believed that she wanted nothing to do with her children and that such conduct in a mother was unacceptable. He also asserted that Ms. Mendoza could have found a way to contact him.

Ms. Mendoza testified that she had not received any calls from Mr. Mendoza after the last call in January 2013. Mr. Medina testified that he had called Ms. Mendoza's home phone number two or three times in January 2013, but had not left a message, because Mexican telephones have caller ID, just like United States telephones. He admitted that he had not tried to call her home telephone numbers since January 2013. Although Mr. Medina testified that he thought that Ms. Mendoza could contact him by e-mail, he then testified that he rarely checked his e-mail. Mr. Medina also initially denied that he had a "facebook" page. When pressed by Ms. Mendoza's counsel, however, Mr. Medina admitted that he had had a "facebook" account, but had taken it down after only a few months, because it didn't interest

On March 6, 2013, Ms. Mendoza submitted a Request For Return Of Children to the
United States Department of State through the Mexican Central Authority. The court found that K.G.M.A. and M.K.M.A. were "removed" from Mexico to the United States in December 2012. The parties initially agreed that K.G.M.A. and M.K.M.A. could visit Mr. Medina in the United States. Mr. Medina "retained" K.G.M.A. and M.K.M.A. in the United States when he did not return them to Mexico on February 2, 2013, as the parties had agreed. It found that Exhibit S confirmed Ms. Mendoza's testimony that the parties had an agreement for the return of the children to Mexico after a temporary stay in the United States and undermined Mr. Medina's testimony that the parties had an agreement for a permanent transfer of the children to his custody in the United States. Thus, the date of the "retention" here was February 2, 2013, when Ms. Mendoza was to meet the children at the United States/Mexico border, but they did not appear as Ms. Mendoza and Mr. Medina had agreed at the time of the children's "removal" to the United States.

The district court observed that the Eighth Circuit Court of Appeals had upheld a determination that the country where the children had lived for their whole lives or for a number of years immediately before their removal or retention and where the children had attended school was the children's "habitual residence," where there is no indication that the children had spent any significant time in another country and the intent of the parents to stay in that country or another country was uncertain or differed between the parents. Here, prior to their retention in the United States, K.G .M.A. and M.K.M.A. had lived almost their entire lives in Mexico, with only one stay out of that country for both M.K.M.A. and K.G.M.A .-a stay in the United States with Mr. Medina for eleven months, which was longer than the two months that the parties had agreed that visit would last-and a prior, illegal stay of four months in the United States by K.G.M.A. It was clear that, even at the time of these visits, from the perspective of the children and the parents, K.G.M.A.'s first stay was a temporary, illegal visit, and the longer stay by both children in the United States was also temporary-although Mr. Medina kept the children longer than the parties had agreed. In both instances, the children ultimately returned to Mexico for an extended period of time and, from their perspective, those returns were to their habitual residence. A determination of "habitual residence" is not overturned by consent judgments or agreements, either on the basis of res judicata or contracts. Thus, the court found that Mexico was the children's "habitual residence" prior to their allegedly wrongful retention in the United States on February 2, 2013.

The Court concluded that Mexican law (patria potestas) afforded Ms. Mendoza a custody right to determine where K.G.M.A. and M.K.M.A. resided at the time that the children were "retained" by Mr. Medina in the United States, and that Ms. Mendoza was exercising that custody right "[a]t the time of ... retention" or that her right "would have been so exercised but for the ... retention."Ms. Mendoza had been actually exercising her custodial rights over K.G.M.A. and M.K.M.A. up until the time that they went to visit Mr. Medina in the United States in December 2012; and, but for Mr. Medina's failure to return the children, she would again be exercising parental rights as the person actually in sole custody of the children. Mr. Medina's retention of the children was "wrongful."

The court noted that "Consent" and "acquiescence" were separate affirmative defenses. "Consent" involves an agreement to removal or retention before the removal or retention occurred, and "acquiescence" is specifically identified in Hague Convention as "subsequent acquiescence," that is, it considers agreement to the responding party's retention of the children after the retention occurred. The only circumstantial evidence that Mr. Medina offered in support of a "consent" affirmative defense were some text messages that the parties did not dispute that Ms. Mendoza sent to Mr. Medina on May 12, 2012, although the parties disputed both the significance and the translation of these text messages. The Court found credible Ms. Mendoza's explanation of the text messages as a momentary venting of frustration, and that they were not an indication that she ever agreed to or wanted permanent transfer of the children to the United States. These text messages, by themselves, did not constitute consent by Ms. Mendoza, before the removal or retention of the children, to a permanent transfer of the two older children to the United States. The court found that the evidence of Ms. Mendoza's actions all indicated that Ms. Mendoza had not consented to a permanent transfer of the children to the United States. Nor had Mr. Medina has proved "acquiescence" by Ms. Mendoza after the removal and retention of the children by the preponderance of the evidence. Mr. Medina appeared to base his "acquiescence" affirmative defense on his contention that Ms. Mendoza did not attempt to contact him or any of his family members after January 2013. The court found that the credibility of Mr. Medina's contention that Ms. Mendoza did not attempt to get in contact with him or the children or his family members after he retained the children to be completely undermined by Ms. Mendoza's evidence that she made repeated attempts to call and e-mail Mr. Medina and that she did not have a current telephone number or address for him or the children. Her testimony on this point was confirmed by Mr. Medina's own admissions that he changed his telephone number in January 2013 without notifying Ms. Mendoza of the change; that he and his family moved to a new address in Storm Lake in August 2013, again without notifying Ms. Mendoza of his new address; his admission that he "rarely" looked at his e-mail or his "facebook" page, after he asserted that they were adequate means for Ms. Mendoza to contact him; and his unsubstantiated suggestion that Ms. Mendoza's e-mails to him might have been filtered into a "junk" file. The court concluded that Mr. Medina could not rely on an "acquiescence" defense, where he actively thwarted Ms. Mendoza's attempts to contact him or the children. Moreover, Ms. Mendoza's protests at Mr. Medina's statement that she need not bother to come to the border on February 2, 2013, to get the children; her actually going to the border to get the children on February 2, 2013, when they did not appear; her prompt efforts, beginning March 6, 2013, to obtain return of the children by submitting a Request For Return Of Children to the United States Department of State through the Mexican Central Authority; her pursuit of legal assistance both in Mexico and in the United States; and her prosecution of this action undermine
Mr. Medina's contention that Ms. Mendoza simply "acquiesced," after the fact, to his failure to return the children as agreed on February 2, 2013, or his retention of the children thereafter in the United States.


The Court denied the Respondents motion for a stay pending appeal, but gave him 30 days to move in the Court of Appeals for a stay, observing that in an ICARA case courts apply the four traditional stay factors in considering whether to stay a return order pursuant to ICARA: " '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." ' In Chafin, the Court held that the return of the children to their state of habitual residence does not "moot" an appeal of the order for return. Id. at ----, 133 S.Ct. at 1025-26. The Court did not find not find that Mr. Medina made a strong showing that he was likely to succeed on the merits of an appeal of the order for return because its decision turned on credibility issues, and concluded that he would not be irreparably injured absent a stay of the order for return.

Mauvais v. Herisse, 2013 WL 6383930 (D.Mass.) [Canada] [Federal & State Judicial Remedies ] [Temporary Restraining Order]

In Mauvais v. Herisse, 2013 WL 6383930 (D.Mass.) Plaintiff Manel Mauvais filed , inter alia, a Verified Complaint and Petition for the Return of Children Pursuant to the Hague Convention and a Motion for Temporary Restraining Order and Expedited Hearing. The Petition sought to compel Nathalie Herisse ("defendant") to appear in court to show cause why the minor children MM and RM should not be returned to Canada. The complaint alleged that RM was brought from Canada to the United States on August 25, 2013 by the defendant's aunt, and had been retained here without plaintiff's consent. The complaint alleged that plaintiff last saw MM on September 13, 2013, and it was presumed that she traveled to the United States with defendant's aunt as well as the defendant and RM.

The Court observed that it had authority to prevent a child's concealment or removal from the District until the Petition is ruled upon. 42 U.S.C. § 11604(a); Fed.R.Civ.P.65. ICARA expressly authorizes a court to "take or cause to be taken measures under Federal or State law, as appropriate, ... to prevent the child's further removal or concealment before the final disposition of the petition."42 U.S.C. § 11604(a). The court found that given the representations made to the Court by plaintiff, and the very serious irreparable harm that was likely to result both to the children and to plaintiff in the event the children were wrongly removed from this jurisdiction, a Temporary Restraining Order was justified to preserve the status quo pending a hearing. For purposes of Fed.R.Civ.P. 65(b), plaintiff has made a sufficient showing that unless the injunction is granted, he may sustain immediate and irreparable injury before there is an opportunity to hear from all parties. From the present record, it does not appear that irreparable harm to defendant will result from the granting of this temporary injunction. The balance of hardships tipped in favor of plaintiff. Issuance of an injunction without prior notice to defendant was necessary due to the possibility (judging by plaintiff's submissions) that the children might be concealed or taken from this jurisdiction before the injunction can be served. The Court, in the exercise of its discretion, declined to require plaintiff to post a bond as a condition of obtaining this injunction. Thus, plaintiff's Motion for Temporary Restraining Order was granted as to prohibiting the defendant from removing the minor children MM and RM from the Court's jurisdiction pending the final disposition of this matter. 42 U.S.C. § 11604.

Carvajal v. Chavarria,--- F.Supp.2d ----, 2013 WL 6442704 (D.Conn.) [Costa Rica] [Rights of Custody] [Consent ] [Grave risk of harm] [Petition Granted]

In Carvajal v. Chavarria,--- F.Supp.2d ----, 2013 WL 6442704 (D.Conn.) petitioner, Pablo E. Vasquez Carvajal, ("Vasquez") brought an action against respondent, Diana Gonzalez Chavarria, ("Gonzalez") seeking, inter alia, the return to Costa Rica of their seven-year-old son, L.V. On December 9, 2013, the court held a consolidated hearing on the petitioner's motion for a preliminary injunction and trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2), at the request of the petitioner and with the agreement of the respondent. Respondent Gonzalez did not contest the court's determination that petitioner Vasquez has established the elements of a prima facie cause of action for return. Gonzalez contended that the court was not bound to order the return of L.V. to Costa Rica because Gonzalez had established (i) that Vasquez consented to the removal of L.V. to the United States, and (ii) there was a grave risk that L.V.'s return to Costa Rica would expose the child to harm.

The Court granted the petition for return. It found that Vasquez and Gonzalez were living together prior to the birth of L.V. in 2006, and continued to live together with L.V. until September 2010. In September 2010, Gonzalez left their home, and Vasquez and L.V. continued to reside together. Then in February 2011, L.V. went to live with Gonzalez On November 29, 2011, the Family Court of the Second Judicial Circuit of San Jose issued a judgment ("Family Court Judgment") based on an agreement between Gonzalez and Vasquez. The judgment set forth, inter alia, the times during which L.V would stay with his father. It is undisputed that at all times before Gonzalez brought L.V. to the United States on or about May 29, 2013, L.V. resided in Costa Rica. Thus, the petitioner established that the child was habitually resident in Costa Rica and then removed to the United States. The court concluded that L.V. was wrongfully removed in breach of Vasquez's custody rights under the laws of Costa Rica  because, as held by the United States Supreme Court in Abbott v. Abbott, 560 U.S. 1, 10, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), Vasquez's "ne exeat right is a right of custody under the [ Hague] Convention." Both Vasquez and Gonzalez testified that Vasquez consistently spent time with L.V. during the periods he was authorized to do so under the Family Court Judgment up to the time when L.V. was removed to the United States by Gonzalez. Thus, Vasquez has established he was exercising custody rights at the time L.V. was removed to the United States.

Gonzalez relied on a Minores Exit Permit and a conversation she had Vasquez in February 2013 to attempt to establish the consent defense. The Exit Permit was obtained in June 2007 and lists both parents as companions of the minor. It was modified on July 14, 2010, to reflect that L.V. may travel with "either of his parents  Diana Gonzales Chavarria ... Pablo Esteban Vasqeuz Carvajal...." The Exit Permit was obtained and modified at times when Vasquez and Gonzalez were living together. They did not separate until September 2010. The court found significant the fact that the Family Court Judgment made no reference to the possibility of Gonzalez and/or L.V. relocating outside of Costa Rica. For this reason, the court credited Vasquez's testimony that by applying for this Exit Permit and agreeing to the modification, he was not consenting to Gonzalez's removal of L.V. from his habitual residence in Costa Rica. In addition, a Letter of Advice from the Central Authority made it clear that the issuance of the Exit Permit is separate and apart from consent by a parent to removal of his or her child from Costa Rica. As to the February 2013 conversation, the court credited Vasquez's testimony to the effect that when Gonzalez broached the idea of relocating L.V. to the United States, Vasquez said "no" and did not elaborate because they were in the presence of others and he did not want to have an argument. Even Gonzalez testified that Vasquez did not consent, but rather that Vasquez said he would think about it.

The Court found that Gonzalez did not establish "there is a grave risk that his ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, Art. 13(b). At most her testimony created an issue as to whether living conditions in the United States might be better.

As to physical or psychological harm, Gonzalez offered evidence as to incidents
between Vasquez and herself or Gonzalez's boyfriend, all of which predated the Family
Court Judgment. This court found that the Family Court Judgment was the best evidence as to whether there was any risk to L.V. as a result of his being in Costa Rica and spending time with his father. As to a grave risk that L.V. would otherwise be placed in an intolerable situation, Gonzalez testified that L.V. was doing better in school in the United States and had better access to medical care. The testimony was disputed by Vasquez, who testified as to L.V.'s schooling in Costa Rica, the availability of medical care, and the fact that he took L.V. for dental appointments in Costa Rica. Gonzalez also testified that she could earn more here than in Costa Rica. Her testimony in substance was to the effect that there is a higher standard of living in the United States than in Costa Rica; even if she was correct, that fact would not support a conclusion that L.V. would be placed in an intolerable situation.

Application of Gavia v Hernandez, 2013 WL 6115725 (D. Utah) [Mexico] [Guardian ad litem] [Well-Settled] [Age and Maturity] [Petition Denied]

In Application of Gavia v Hernandez, 2013 WL 6115725 (D. Utah) Alma Rosa Ornelas Gavia ("Petitioner" or "Ms. Ornelas") on October 29, 2013 filed a Verified Complaint and Petition for Return of Minor Children. Petitioner was a Mexican national residing in the City of Leon, Mexico in the State of Guanajuato. Respondent was a Mexican national residing in Sandy, Utah. Petitioner and Respondent were married in Leon, Mexico on March 19, 1999. After their marriage in 1999, Petitioner and Respondent moved to the United States. ABTO was born in Los Angeles, California on February 28, 2001. MZTO was born in Los Angeles, California on February 15, 2002. ABTO and MZTO were both United States' citizens. They lived in California until 2009, with the exception of a period prior to 2009 when the Petitioner took the Children to Mexico. On or about July 7, 2009, Petitioner and Respondent separated. After the separation, Petitioner returned with the children to her parent's home in Leon, Mexico. Respondent relocated from California to Utah. Respondent testified that as Petitioner was preparing to leave him and take the Children to Mexico, she told him that if he would not agree to them residing with her in Mexico that she would take them and disappear in Mexico. Respondent therefore acquiesced to the Children residing with Petitioner in Mexico. Shortly after Petitioner moved to Mexico, she gave birth to a third child SCTO, who was the daughter of Petitioner and Respondent and the sister of ABTO and MZTO. Between July 2009 and late June 2012, Petitioner and the children lived with Petitioner in her family home in Leon, Mexico. The children's mother, the Petitioner, worked in Mexico as a secretary 20 hours per week. Petitioner had a boyfriend. In approximately January 2012, he came to live with Petitioner and the Petitioner's three children in Petitioner's parents' house. In approximately March 2012, the boyfriend's three children also came to live in the house. Petitioner's boyfriend and his three children continued to reside with Petitioner. While the Children were living in Mexico, the Petitioner did not regularly cook for them, often leaving one of the Children to prepare the family meals. One of the Children was often sent alone to buy food, which made her nervous. The Petitioner "partied" and sometimes left the Children to care for themselves and their younger sister for long periods while Petitioner was away. . On occasion, Petitioner threw things at the Children, once throwing her cell phone at one of the Children. On one occasion, Petitioner struck one of the Children in the back of the head, which caused the child to strike her front tooth, breaking it. Although the Petitioner testified that the area where they lived was safe, the Children said that they feared going out onto the streets because of a fear of gang activity. Petitioner did not take the Children to the doctor in Mexico, but relied on their grandfather to make medications to care for them when ill. The Children did not feel safe living with Petitioner in Mexico. While the Children were living in Mexico, the Respondent regularly sent money to the Petitioner for the support of the Children, including tuition for private schooling.

In April or May of 2012, Petitioner and Respondent began to discuss the possibility of the Children coming to live with the Respondent in Utah. The Petitioner testified that in June of 2012, she agreed to allow ABTO and MZTO to travel to Utah to be with their father. Petitioner testified that the children were to remain in Utah for only two weeks at which time they were to return to Mexico. The Children testified that their mother told them they were coming to Utah to visit for two-weeks. The Respondent testified that the children wanted to come to Utah and remain indefinitely. He testified that they were to remain in Utah until they decided they wanted to return to Mexico. He denied that there was any agreement that the children would return to Mexico after two-weeks. The Children arrived in Utah on July 3, 2012. Upon arrival in Utah, the Children carried with them a passport, social security cards, child identification cards issued by the state of California, immunization records for both Children, and birth certificates which had been given to them by the Petitioner before they left Mexico. Petitioner testified that once the two-weeks had passed, Respondent refused to return the Children to Mexico and told her she would never see her Children again. Petitioner testified that she contacted the FBI and the Mexican Consulate in Salt Lake City, Utah in an effort to have her Children returned. On August 2, 2012, Petitioner filed with the Secretary of Foreign Ministry in Guanajuanto, Mexico, a request for the return of the Children, claiming they had been wrongfully retained in Utah. Petitioner testified that she did not know the address where the Children were residing and was unable to find their location until shortly before the Verified Complaint was filed in this case on October 29, 2013. Since July of 2012, the Children remained in the United States, residing at all times at the same address in Utah with Respondent. Respondent testified that he has made no effort to conceal the Children or hide their whereabouts.

ABTO was now 12 years old and lived in the United States for 9 of her 12 years, except for the short period she lived in Mexico with her mother prior to 2009. MZTO was now 11 years old and has lived in the United States for 8 of her 11 years, also with the exception of the short period in Mexico prior to 2009. The Children were both fluent in English and are well acclimated to living in the United States. At the end of the summer of 2012, the Children were enrolled in public schools in Sandy, Utah, where they participated for a full school year. They were now in their second year since returning to the United States. Both Children are doing well in school. The Children each had friends at school and in their current neighborhood and were well integrated in their current family, school, neighborhood and community. Respondent's sister lived next to Respondent and the Children like spending time with her and their cousin. They also associated with other members of Respondent's extended family who lived in the State of Utah. Respondent resided at the same address for the past three years. Respondent and the Children lived in a mobile home trailer with Respondent's girlfriend and his girlfriend's two daughters. Although the home only had two bedrooms, the Children testified that the bedrooms were large and they had enough room for their things. They also testified that they have a good relationship with the Respondent's girlfriend and her children. They did not express concern or complaints about their living arrangements in Sandy, Utah. Respondent, his girlfriend, her two daughters, and the Children lived as a close, loving and mutually supportive family.

Respondent testified that the Petitioner agreed that the Children could remain with him in Utah. The Children testified that after they arrived in Utah, Respondent told them that Petitioner had agreed that they could remain in Utah until they chose to return to Mexico. Sometime after the controversy arose, Respondent put Petitioner on the speakerphone with Respondent and the Children. Respondent told Petitioner in that conversation, in the presence of the Children, that it was not up to him or Petitioner, but that it was up to the Children where they lived. Both Children said that they wanted to remain in Utah with Respondent, to which Petitioner responded that would be fine. Respondent told Petitioner and the Children that if the Children wanted to go to Mexico, he would pay for their tickets to return. Respondent repeated his statement in court that he not only would allow, but would pay for the Children to return to Mexico whenever it is their wish to do so.

The court observed the Children and their demeanor in chambers. Through the course of the interview, it became clear that they strongly desired to remain in Utah with their father. They expressed an emotional and strong objection to being required to return to their mother in Mexico. They expressed their view that they would not feel safe living in the neighborhood where Petitioner's home was located. They also expressed they would not feel comfortable living in the home with their mother and her boyfriend. If there were to be a visit, they wanted another adult to accompany them. The court found the Children to be mature for their ages and capable of formulating their own ideas and feelings about where they want to live. Based on the court's observations, it found that the Children had attained an age and degree of maturity at which it is appropriate to take into account their views. It found that Children had a strong desire to stay with their father in Utah and to not be forced to return to Mexico. More than one year had elapsed between the date since Petitioner alleged the Children were wrongfully retained by Respondent in the United States and the date Petitioner commenced these proceedings. The Children were now settled in their new environment with Respondent in Utah, having become so settled in Utah that forcing them to return to Mexico against their wishes would be against the Children's best interest.

Petitioner demonstrated that the Children were habitual residents of Leon, Mexico before coming to the United States in June 2012 and that under Mexican law petitioner had the right as a parent to custody of the Children. The evidence was undisputed that the Children came to Utah at the end of June 2012, with the permission and consent of Petitioner. Their removal to Utah was not wrongful. Petitioner contended that after the two-week visit, to which she agreed, Respondent wrongfully retained the Children in Utah. Petitioner contended that she demanded return of the Children, but Respondent refused, telling her she would never see her Children again. Respondent testified that it was understood when the Children came to Utah that they would remain indefinitely in Utah, that after they were here Petitioner agreed to their remaining and that she changed her mind only later. The evidence was inconclusive on this issue. Petitioner's claim that she did not know the Children's location lacked credibility. Because Petitioner had the burden of proof on this issue, and the evidence was inconclusive as to whether there was agreement for the Children to remain in Utah, the court found that Petitioner has failed to prove that the retention of the Children in Utah was wrongful.

The Court observed that the Convention requires that a child shall be returned to the state from which he originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "well settled" in her new environment. Bernal v. Gonzalez, 923 F.Supp.2d 907, 926 (2012).

n determining whether a child is settled within the meaning of Article 12, a court considers a number of factors that bear on whether the child has "significant connections to the new country." 51 Fed.Reg. at 10509. These factors include: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. The most important factor is 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 Cir2009). ABTO and MZTO resided in Utah with Respondent for just over one (1) year. Under Second Circuit precedent, which had been followed in this district, equitable tolling does not apply even where a parent acts to conceal the whereabouts of a child. See Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012). Moreover, even were equitable tolling to apply, the evidence in the case did not support that Respondent acted to conceal the Children. The evidence strongly supports that both ABTO and MZTO were well-settled as that term is used in the Hague Convention. Each of the six factors to be considered by the court weighed heavily in favor of the Respondent, which supported a conclusion that the Children had significant connections to Utah. The court found that it would be disruptive and traumatic to remove them from the family they now accepted and from a school which they enjoyed and at which they were thriving. The well-settled exception was satisfied and the court found under this exception, that even were the Children wrongfully removed, they should remain in Utah.

The Court also observed that the Hague Convention provides that "[t]he judicial or administrative authority [considering a petition] 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. ABTO was twelve years old and MZTO was eleven. Both children were interviewed in chambers with counsel and other court personnel present. The Children demonstrated by their behavior and responses that they understood the circumstances and understood the gravity of the decision to be made. ABTO and MZTO each expressed a desire to remain in Utah. They expressed reservations about returning to Mexico. The views they expressed were sincere and strongly felt. The strong preference to remain in Utah expressed by each of them was consistent with their own description of what their lives were like in Utah compared to their lives in Mexico. Both ABTO and MZTO expressed goals for the future that assumed they would remain here. They unequivocally expressed their love for their "step mother" and their family association. They did not express similar feelings for family or relatives in Mexico. They found living in a two-bedroom mobile home preferable to living in a four-story house in Mexico. They strongly preferred school here. The court found that they had the level of maturity to express meaningful and well-considered opinions about their own future and preference for remaining in the United States. The court was influenced by the recommendation and persuasive argument of the Guardian Ad Litem that the Children's interest was best served by remaining in Utah. He met with the Children, considered their circumstances and had no interest other than their best interest in making that recommendation. The court found that the evidence strongly supported that it was in the best interest of each of ABTO and MZTO to remain in Utah and the United States.

Londona v Gonzalez, 2013 WL 6093782 (D. Mass) [Colombia] [Habitual Residence] [Petition Denied]

 In Londona v Gonzalez, 2013 WL 6093782 (D. Mass) petitioner Francelly Sanchez Londono,  the mother of E.G, a minor child filed a petition against. Respondent Nelson Gonzalez, E.G.'s father, seeking the return of E.G. from Massachusetts to Colombia. Francelly Sanchez Londono was a Colombian citizen. She was a native Spanish speaker, and spoke very little English. In college, Sanchez met Jorge Andres Agudelo.  They did not marry, but they had a daughter, C.A., who was born on September 12, 1998. In 2004, Sanchez decided to move to the United States for professional and financial reasons, and to help support her mother and daughter. She came to the United States illegally at the end of 2004. She paid smugglers to take her across the Mexican border into Texas. At no time between 2004 and 2011 was Sanchez legally present in the United States. On entering the United States, she made her way to Marlborough, Massachusetts.  She took a position at New Horizons.  Gonzalez became a naturalized United States citizen on April 13, 2000. He had a seventeen-year-old daughter, K.G., from a previous relationship, who lived in Massachusetts. On December 30, 2005, Sanchez and Gonzalez were married in Framingham, Massachusetts. Sanchez and Gonzalez had a daughter, E.G., born on October 12, 2006.  E.G. is a citizen of both the United States and Colombia. The family lived together in Framingham until December 7, 2008. According to Sanchez, Gonzalez was frequently worried because he was afraid immigration would arrest her.  Beginning in 2006, the couple sought advice from several individuals on how to make Sanchez's presence in the United States legal.  In 2008 she was pulled over by a police officer for a traffic violation. She gave him her Colombian driver's license and her American marriage certificate. The police officer called Gonzalez, who had to come pick up Sanchez. The police officer gave Sanchez a citation for $400. Because of this incident, Gonzalez became increasingly concerned about the fact that Sanchez was not legally in the United States, and that she could get arrested and deported.

 At some point in 2008, Sanchez and Gonzalez agreed that she would move back to Colombia. Both believed that it would be easier for Sanchez to obtain legal residency in the United States if she returned to Colombia and applied from there. They also agreed that Sanchez would take E.G. with her to Colombia. At the time, Sanchez and Gonzalez planned that Sanchez and E .G. would move back to the United States when the mother could legally return. Sanchez and Gonzalez intended for C.A. to come live with them in the United States once the immigration issues had been resolved.  Sanchez and E.G. moved to Colombia on December 7, 2008. E.G. was two years old at the time. Beginning in December 2008, Sanchez, E.G., and C.A. lived together in Manizales, Colombia with Sanchez's mother. While Sanchez and E.G. were living in Colombia, Gonzalez and E.G. spoke two or three times a day by telephone. They also communicated through Skype video conference by computer. Gonzalez visited Colombia on one occasion for five days in 2010.

  In 2008, Gonzalez started working on petitions to the United States immigration authorities seeking permission for Sanchez and C.A. to immigrate into the United States. Gonzalez filed a petition for Sanchez in January 2009. Gonzalez filed a petition for C.A. in December 2009.  As of December 2008, when Sanchez moved back to Colombia, she and Gonzalez expected that the stay would be relatively short. Specifically, they expected that Sanchez and C.A. would be granted admission into the United States in approximately seven to nine months. In 2009, Gonzalez met Erin McShane. (Tr. III: 25). He began a romantic relationship with her about a year later. (Tr. III: 25). On December 30, 2010, C.A.'s petition was granted and she was given an immigrant visa into the United States for one year of permanent residence. Sanchez's petition was not granted because she was excluded from the country for ten years for having entered the country illegally. Sanchez applied for a waiver of the exclusion so she could enter the country. On January 10, 2013, Sanchez received a letter from United States Customs and Immigration Services (“USCIS”) telling her it would act favorably on her application for waiver of her exclusion from the United States. No further action appeared to have been taken on that application by the United States since that time.

  Sanchez and Gonzalez decided to send C.A. to the United States to prevent C.A.'s visa from expiring.  They agreed that Gonzalez would come to Colombia and take C.A. back with him to the United States.  Sanchez and Gonzalez also agreed that E.G. would return to the United States with Gonzalez and C.A. Sanchez testified Gonzalez told her that the presence of the two daughters in the United States would pressure the American government into granting her appeal of her waiver. In May 2011, Gonzalez traveled to Colombia.  On May 28, 2011, he took E.G. and C.A. with him from Colombia to Massachusetts. After Gonzalez returned to the United States with E.G. and C .A., he told Sanchez it might take a few more months for her to get into the country. E.G. and C.A. lived with Gonzalez in Framingham, Massachusetts, beginning in May 2011. Sanchez began to suspect Gonzalez was in a relationship with another woman in August or September 2011. In December 2011, Sanchez and Gonzalez had a telephone conversation in which Gonzalez told her he was sending C.A. back to Colombia. Sanchez demanded that Gonzalez return E.G. as well, and he refused.C.A. returned to Colombia in February 2012. In September 2011, E.G. began attending daycare at Metro West Center Care in Framingham. Sanchez periodically called the daycare center and spoke to E.G.'s teacher about E.G.  Sanchez testified that after the telephone call in December 2011, when Gonzalez refused to send E.G. back to Colombia, he cut off all contact with her. Sanchez also testified that Gonzalez changed his telephone number and address. On April 4, 2012, Gonzalez filed for divorce from Sanchez in the Middlesex Probate and Family Court. Notice of the divorce action was sent to Sanchez in Colombia by registered mail. In May 2012, Gonzalez and E.G. moved from Framingham to Quincy. (Tr. III: 88–89). McShane moved in with them. Gonzalez did not inform Sanchez of the move or provide her with his new address. In the fall of 2012, E.G. started kindergarten at the Beechwood Knoll Elementary School in Quincy. Sanchez had no communication with E.G. from December 2011 until October 2013. Gonzalez interfered with Sanchez's ability to communicate with her daughter by failing to provide Sanchez with appropriate contact information. (Tr. III: 87–89).Gonzalez did not tell the Family Court that Sanchez had been in contact and did not want him to have sole custody of E.G.  On November 21, 2012, the Family Court granted Gonzalez's petition for divorce, granting him sole legal and physical custody of E.G. Sanchez did not contest the divorce in court.  She testified she had no opportunity to do so.At some point after his divorce from Sanchez, Gonzalez married McShane.

 On June 27, 2012, Sanchez filed an official application for return of E.G. to Colombia under the Hague Convention. On January 2, 2013, Gonzalez sent an e-mail to the United States Citizenship and Immigration Services (“USCIS”), asking them to terminate Sanchez's immigrant visa petition. That e-mail stated Gonzalez was legally divorced from Sanchez and that he no longer supported her request to enter the United States. On January 10, 2013, Sanchez received a letter from USCIS telling her that it favorably on her application for waiver of her exclusion from the United States. The letter did not permit Sanchez legal entry into the country. Sanchez testified that if she gained legal entry into the United States, she would live here. In December 2012, Sanchez sent C.A. back to the United States to renew her visa. C.A. currently lived with Maria Ortiz, the sister of Sanchez's sister-in-law. Sanchez was granted a special visa to enter the United States to pursue her Hague Convention petition. She entered the United States on September 27, 2013. Sanchez informed Gonzalez she was in the country on October 1, 2013, four days after she had arrived.

 The parties agreed there was no wrongful removal of E.G. from Colombia, because Gonzalez had permission to bring her into the United States. The Court observed that whether there was a retention depended on the agreement of the parties.  Sanchez demanded E.G.'s return from the United States to Colombia in a December 2011 telephone call with Gonzalez. Because the parties did not agree on where E.G. should live after that telephone call in December 2011, the Court found that E.G. was retained at that time.

 The Court pointed out that whether there has been a breach of Sanchez's custody rights over E.G. depended on the law of the state where E.G. was a habitual resident immediately before the wrongful retention. The Court had to determine E.G.'s habitual residence. Hague Convention art. 3; see also Redmond v. Redmond, 724 F.3d 729, 742 (7th Cir.2013) (“If a child has not been moved from its habitual residence ... relief under the Hague Convention must be denied without further inquiry into whether the petitioning parent's custody rights have been breached or whether the petitioning parent was actually exercising those rights at the relevant time.”). It noted that according to the First Circuit, “[t]he Hague Convention does not define ‘habitual residence,’ but the majority of federal circuits to consider it have adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence.” Nicolson, 605 F.3d at 103–04, n. 2 (collecting cases); see also Zuker v. Andrews, 1999 WL 525936, at *1–2 (1st Cir. Apr.9, 1999).  The circuits are split as to whether this is the proper test for a change in habitual residence. The Second, Fourth, Seventh, Ninth, and Eleventh Circuits have adopted a two-part test, considering first the parents' shared settled intention, and second the extent of the child's acclimatization to the new country of residence. Gitter v. Gitter, 396 F.3d 124, 131–32 (2d Cir.2005); Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009); Koch v. Koch, 450 F.3d 703 (7th Cir.2006); Mozes v. Mozes, 239 F.3d 1067, 1075 (9th Cir.2001); Ruiz v. Tenorio, 392 F.3d 1247, 1252–54 (11th Cir.2004). The Sixth and Eighth Circuits have concluded that the settled purpose of a child's move must be viewed from the child's perspective. Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007); Stern v. Stern, 639 F.3d 449, 452 (8th Cir.2011). The Third Circuit takes into account intent from both the parents' perspective and the child's. Feder v. Evans–Feder, 63 F.3d 217, 224 (3d Cir.1995). Because Nicolson explicitly endorsed analysis of the parents' intent, the Court followed the circuits that utilized that analysis.

 The Court explained that in a case alleging a wrongful retention, a child's habitual residence is generally determined by asking whether the prior place of residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time. The parties disagreed as to whether they had a shared intent or settled purpose about E.G.'s habitual residence before December 2011. Gonzalez contended that the shared intent and settled purpose of the parties was for E.G. to live in the United States, and that Sanchez was to join them after gaining legal entry.Sanchez contended that Gonzalez obtained her assent to take E .G. to the United States by deceit, because she was unaware that he was romantically involved with another woman at the time they made the decision. She further contended that she did not know at the time that Gonzalez's intent was to take E.G. to the United States without regard to whether she was later able to enter the country. She contended that her intent was to always have E.G. with her, regardless of what country they were in.

 The Court found that the shared intent and settled purpose of the parties was for E.G. to live in the United States. The parents' shared plan was for E.G. to return to the United States and that Sanchez would follow when she could enter legally. There was never a plan for E.G. to remain in Colombia. Neither party evidenced an intent to abandon the United States as E.G.'s residence. Sanchez continuously attempted to gain entry into the United States by applying for a visa, requesting a waiver of her exclusion, and appealing the denial of that waiver. Sanchez also testified she would move to the United States if she were allowed entry. Gonzalez's behavior in conducting an extramarital affair, and hiding that affair from Sanchez, did not change the fact that both parties believed E.G. should live in the United States. There was no condition, agreed or otherwise, that E.G. would return to Colombia if Sanchez could not gain admission into the United States. The Court found that the shared intent of the parties was for E.G. to live in the United States.

 Although the inquiry of a child's habitual residents begins with the shared intent or settled purpose of the parents, “tests of habitual residence must be applied to the circumstances of the case.” Nicolson, 605 F.3d at 105. The Courts of Appeals have split on what other factors are key to a finding of habitual residence. In cases the First Circuit has cited approvingly, the courts have engaged in a two-step process. First, they have looked toward the shared intent or settled purpose of the parents. E.g., Hofmann v. Sender, 716 F.3d 282, 291–92 (2d Cir.2013). Second, they have looked at the extent of the child's acclimatization in the new country of residence. E.g., Hofmann, 716 F.3d at 291–92; If “the evidence unequivocally points to the conclusion that the child has acclimatized to the new location,” it becomes the child's new habitual residence. Guzzo v. Cristofano, 719 F.3d 100, 108 (2d Cir.2013). However “in the absence of settled parental intent, courts should be slow to infer ... that an earlier habitual residence has been abandoned.” Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir.2001). An acclimatization requires “ ‘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.’ “ Maxwell 588 F.3d at 251 (quoting Papakosmas, 483 F.3d at 622).

 After more than two years in Colombia, it was clear that E.G. was acclimatized to the country at the point of her departure in May 2011. The difficulty in this case was that by the retention in December 2011, E.G. had been back in the United States for almost seven months. By that time, E.G. was at least somewhat acclimatized to the United States. While in the United States, she had spent time with her stepsisters in Massachusetts, went on trips to the park or swimming pool with Ines Rosario, and been in daycare for almost four months. These activities suggested she was acclimatized to the United States. Although this was a relatively short period of time in her life, such short periods support acclimatization when buttressed by the parents' intent. See Mozes, 239 F.3d at 1078 (acclimatization easy to find if in conjunction with parental intent); Feder, 63 F.3d at 219 (six-month period sufficient for acclimatization under the circumstances).  A” parent cannot create a new habitual residence by wrongfully removing and sequestering a child.” Miller v. Miller, 240 F.3d 392, 400 (4th Cir.2001); see also Diorinou v. Mezitis, 237 F.3d 133, 141–42 (2d Cir.2001); Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006); Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th Cir.1995). These cases, however, have all involved situations where one parent used fear, coercion, or violence to force the family to stay in the new country. The record did not support the conclusion that Gonzalez so dominated Sanchez through force or coercion that she did not intend E.G. to live in the United States. The child's return to the United States, coupled with the parents' shared intent for her to live in the country, showed that E.G .'s acclimatization to Colombia did not defeat the parents' intent that the United States be her permanent home. The Court  found that E.G.'s habitual residence at the time of retention was the United States; therefore her  retention was not wrongful under the Hague Convention. Sanchez's request for a remedy of return was denied.

Thursday, November 21, 2013

Montero-Garcia v. Montero, 2013 WL 6048992 (W.D.N.C.) [Dominican Republic] [Attorneys Fees]


In Montero-Garcia v. Montero, 2013 WL 6048992 (W.D.N.C.) the district court pointed out that after trial concluded, it issued ian Order finding that the children had been wrongfully retained and directed that the children be returned to their habitual place of residence. Finding that it was appropriate for the children to remain with the respondent until the flight home and that both parents should accompany the children on the flight, the court directed petitioner to purchase tickets for the children as well as the respondent for the return flight to the Dominican Republic. In so finding, the court determined based on the undisputed financial information submitted at trial that petitioner was the sole financial provider for the family, that his income of some $2000 a month would place this family above the poverty line in the Dominican Republic, and, absent some other source of income, they would be living in poverty if they remained in the United States. Further, while it appeared that the children had aunts in the United States willing to furnish housing, they had maternal grandparents in the Dominican Republic who had, based on past actions, the means to provide housing and some financial support when needed. The determination was based on respondent's unrefuted testimony that she was completely dependent on the support of petitioner, had to go on public assistance while in this jurisdiction, and that the family depended on some support from her parents before they came to the United States. Determining that it would be clearly inappropriate for respondent to bear the costs, expenses, and fees incurred in this action due to her complete dependence on income from petitioner, the court denied petitioner's request that respondent pay his costs, expenses, and fees under 42 U.S.C. § 11607.

Petitioner filed a request for reconsideration of the costs and fees portion of the Order after respondent had returned to the Dominican Republic and obtained counsel to represent her in the domestic action in her home country. In support of petitioner's request for attorney's fees and costs, petitioner contended that the court erred in relying on respondent's uncontroverted trial testimony concerning her lack of income and being on public assistance. A hearing was conducted at which counsel for the parties were present. Counsel for petitioner volunteered that he would submit detailed time records if requested by the court. The court noted that petitioner did not file a motion for attorney's fees and costs and did not demand fees in his Petition. The request for fees was found, for the first time, in a post-trial Brief in Support of Hague Petition. The Court observed that while petitioner clearly asked for an opportunity to submit "evidence regarding Petitioner's costs and fees," the evidence concerning respondent's ability to pay such costs and fees was already before the court. As there was no evidence that respondent had any ability to pay any fees or costs, the court found no reason to ignore the mandate of the convention and delay the return of the children simply to allow petitioner to submit evidence of his fees and costs. At the trial, counsel for respondent called respondent and asked a series of questions concerning respondent's financial situation. Such sworn testimony indicated to the court that respondent had absolutely no personal assets, all her income came from petitioner, and since being in the United States, she relied on public assistance as well as help from her church and sister to support her and her four children. It was apparent that respondent had no prospects for gainful employment outside the home. Petitioner cross-examined respondent, but her testimony concerning her financial situation was neither challenged nor impeached. Respondent testified that before coming to the United States, the family of six relied on petitioner's income, but that after petitioner lost his job with Verizon, the family's finances were so dire that the family depended on support from respondent's parents to pay certain bills, including health insurance premiums.

The court fully credited petitioner's assertion that respondent now had the assistance of paid counsel in the Dominican Republic in the domestic action that ensued upon the family's return. There was no evidence that she, rather than her parents, paid those attorneys. In light of petitioner's undisputed testimony, the fact that she now had the assistance of retained counsel in the Dominican Republic did not unsettle the court's conclusion that imposition of costs and fees was "clearly inappropriate" based on an inability to pay. The court noted that it is a very common practice for concerned relatives-especially concerned grandparents-to hire counsel to represent indigent parties in court, especially in domestic matters that could impact child custody and grandparental visiting rights. The fact that respondent had counsel in the Dominican Republic was not, standing alone, sufficient cause for revisiting the earlier determination that respondent has no ability to pay. It was pure speculation that respondent had a source of funds that she did not reveal to the court. Petitioner did not submit evidence (such as bank records, wage statements, or property records from the Dominican Republic) that would support a conclusion that respondent committed perjury before the court or had a post-return windfall that would justify reopening the issue of attorney's fees. The court did not consider it appropriate to reopen this matter and conduct what would now be expensive, international, court-sanctioned discovery (which would also need to meet requirements of other aspects of the Hague Convention concerning international judicial assistance) based on petitioner's speculation as to the source of his wife's attorney's fees in the Dominican Republic. Respondent's at-trial testimony concerning her financial condition was clearly intended to provide the court with information with which to make the §

11607(b)(3) determination, as it was not helpful in proving any of the defenses available under the International Child Abduction Remedies Act ("ICARA"). Petitioner was afforded an unfettered opportunity to examine respondent at trial, but in no way challenged her testimony concerning her finances.

The Court observed that while petitioner clearly proved that respondent had wrongfully retained the children in this jurisdiction, the court found that shifting petitioner's fees and costs to respondent would be "clearly inappropriate" as respondent established at trial that she had no ability to pay and was completely indigent. There was no evidence to suggest that respondent would be able to pay any amount of an award. While the court was unfamiliar with the laws of the Dominican Republic concerning distribution of debt incurred during a marital relationship, respondent's argument at the hearing that awarding fees, costs, and expenses to petitioner would simply serve to convert counsel's pro bono work into a marital debt was a compelling argument. The evidence adduced at trial indicated that respondent was a stay-at-home mother of four with no income or assets, with no prospects for working outside of the home, and who intended to home school her four children. While in this jurisdiction, it was respondent's testimony that she relied on public assistance as well as assistance from her church and sister. Although counsel for petitioner cross-examined respondent, her testimony concerning her lack of income and assets was in no manner impeached. Petitioner also testified, but presented no testimony that respondent had any hidden income or assets in the Dominican Republic or elsewhere. The court concluded from all the evidence and testimony that petitioner lost his job at Verizon, that his attempt at entrepreneurship in the cheese business led to a large tax liability, and that as a result, petitioner could no longer provide for all the needs of his wife and four children, falling back on respondent's parents to provide for certain expenses. With the respondent and children all being dual citizens of the United States and the Dominican Republic, the family came to the United States in search of a better financial life and with hopes of the parents saving their marriage, neither of which came to fruition.

Counsel for petitioner also argued that, at a minimum, his costs should be allowed under Rule 54(d)(1), Federal Rules of Civil Procedure. The Court found that petitioner's reliance on Rule 54(d) was misplaced.

The Court denied the motion for reconsideration. It cited case law holding that shifting fees under ICARA is clearly inappropriate where the "child[ren] will be significantly adversely affected by the court's award," Whallon, 356 F.3d at 140, and where a respondent "would be unable to pay any amount of an award." East Sussex Children Servs., 919 F.Supp.2d at 734. The testimony at trial was compelling that respondent was totally dependent on income from petitioner, had no assets, and was on public assistance while in this jurisdiction. As it did at the conclusion of the trial based on careful consideration of all the evidence before it, the court reaffirmed its conclusion that the litigants' four children would be significantly adversely affected by the shifting of any award as respondent has no ability to pay such award, has no assets, and has no prospects for future employment, all of which would push these children further into poverty.



Saturday, November 16, 2013

Valenzuela v Michel, 2013 WL 6038240 (9th Cir., 2013) [Mexico] [Habitual Residence]

In Valenzuela v Michel, 2013 WL 6038240 (9th Cir., 2013) in late 2006, Steve Michel and Blanca Reyes Valenzuela chose to live together in Nogales, Mexico. Their twins were born in 2008. According to Steve's undisputed testimony, the couple lived together in Nogales, Mexico. The couple agreed in 2009 that to avoid having to cross the border for work, Steve should move to the Arizona side. They agreed to "set a pattern to keep [the twins] in the United States" in order to take advantage of education, medical help and government support in the United States. After the twins received their passports in May 2009, until the fall of 2010, they split their time between Mexico and the United States. They lived with Blanca in Mexico Monday through Wednesday and lived with Steve in the United States from Thursday through Sunday. In September 2010, the relationship between Blanca and Steve soured. Blanca threatened to have him beaten up or killed. For around two months in the fall of 2010, Blanca did not allow him to have any contact with the twins. Under the belief that she posed a danger to the children, Steve reported Blanca to Arizona Child Protective Services and to its Mexican equivalent, DIF, in November 2010. From Christmas 2010 to February 2011, the twins split their time between Steve and Blanca evenly. In February 2011, Blanca would not regularly meet Steve or respond to his messages to go to the border so he could take the twins to the United States. Steve did take the children on March 24, 2011. He told Blanca he would return them at 7 PM on March 27th, but he sent Blanca a text message on March 27th saying he would not bring them back.

Blanca filed her application two days after Steve retained the twins and filed a petition for Writ of Habeas Corpus for Return of Child in the District Court. At trial, Blanca and her witnesses testified via telephone from Mexico with the help of an interpreter. Steve testified that Blanca agreed to keep the twins in the United States to send them to school and get them better medical care. Blanca disagreed with much of what Steve had said during his testimony. She also talked over some of her witnesses. The District Court found Steve's testimony to be more credible, noting that Blanca seemed to be coaching her witnesses. Based on Steve's testimony and the testimony of Fernando Leal, the DIF social worker, the district court held that the parties "abandoned Mexico as [the children's] habitual state of residence when their parents decided they should, for an indefinite period, spend the majority of their time in the United States."

The Ninth Circuit affirmed. It observed that it had rejected a purely factual approach to habitual residence for reasons laid out by Chief Judge Kozinski in Mozes v. Mozes. 239 F.3d 1067, 1071–73 (9th Cir.2001) It was undisputed that Blanca was exercising her rights of custody at the time of retention. The question was whether the children were habitually resident in Mexico, the United States, or both, at the time of their retention. The Court of Appeals noted that the district court based its findings of fact primarily on three key credibility determinations. First, it found that Steve's version of the facts was credible. Second, it found that Blanca's account was not consistent with her earlier statement to the social worker about how long the twins were living in the United States. Finally, it found that Blanca's witnesses either lacked independent foundation for their testimony or were being audibly coached while they were testifying, possibly by Blanca herself.
The Court pointed out that in the Ninth Circuit, they look for the last shared, settled intent of the parents in an attempt to determine which country is the "locus of the children's family and social development." Mozes, 239 F.3d at 1084. Mozes requires that there be a shared intent to abandon the prior habitual residence, unless the child "consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each." Once intent is shown, Mozes requires an "actual change in geography" combined with an "appreciable period of time" to establish a change in habitual residence. Following Mozes, the district court ruled that Steve and Blanca had a shared, settled intent to abandon Mexico and adopt the United States as the twins' habitual residence, and therefore the Convention did not attach. It agreed that the Convention did not attach.

In affirming the district court's decision, the Ninth Circuit offered "an alternate route to the same outcome". It pointed out that very few cases arising under the Convention feature shuttle custody. In shuttle custody situations, Parent 1 and Parent 2 agree to split custody between two countries, shuttling the children between the countries on a regular basis. Here, Steve and Blanca decided the children would split time between countries before their relationship soured, and the children were shuttled more frequently than in any other cases. Blanca's and Steve's residences, as of the time of the petition, were in two different countries, but they were only around ten miles apart, the closest of any two parents in all of the habitual residence cases brought under the treaty worldwide. The only U.S. court to entertain the possibility that a child had alternating habitual residences was a district court in New York. In Brooke v. Willis, a court-ordered custody arrangement dictated that a child spend fifty percent of her time in the United States and the other fifty percent in England. 907 F.Supp. 57 (S.D.N.Y.1995). After a fall semester in California, the mother retained the child in California in breach of the agreement. The father, in England, filed a petition under the Convention. The court ruled that the child was habitually resident in England at the time of her retention, with the caveat that "it is arguable that [the child] is also a habitual resident of the United States under the Convention. However, for purposes of this petition it is only crucial to determine if England can be considered [her] habitual residence." No other U.S. court has been faced with shuttle custody under the Convention. The closest fact pattern to the one before it was from a case decided by the High Court of Northern Ireland. In In re C.L. (a minor), a child shuttled between Belfast and Dublin, a distance of 105 miles. After acknowledging that the fact pattern is "unusual if not unique", the court found that when the child moved between his parents "on a weekly basis, he was habitually resident in whichever jurisdiction he was living in." In re C.L. (a minor) and In re the Child Abduction and Custody Act 1985; JS v. CL (unreported NIFam HIGJ2630 25 Aug. 1998). Courts in other jurisdictions have held that the shuttle custody cases before them reflected serial, or alternating, habitual residence. See Wilson v. Huntley, 2005 Carswell Ont 1606(WL), (Can.O.N.S.C.) ; See also Watson v. Jamieson, (1998) S.L.T. 180, 182 (Scot.).

The Court held that district court judge below did not err in deciding that Blanca and Steve shared a settled intention to abandon Mexico—they had immediate plans to avail the twins of government assistance in the United States as well as longer-term plans to educate the children in the United States. It noted that based on the shuttle custody cases from sister courts, Steve could have prevailed by showing that he and Blanca shared a settled intention to abandon Mexico as the twins' sole habitual residence, that there was an actual change in geography, and that an appreciable period of time had passed. Because all three elements were present here, it affirmed the district court in its decision that the twins were habitually resident in the United States when Steve retained them.