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Sunday, October 6, 2013

Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Spain] [Consent] [Petition Denied]

[Spain] [Consent] [Petition Denied]

In Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Not for Publication] Petitioner Antonio Osuna Caro and Respondent Beruzka Mesa Sanchez were married in 2007 in Sevilla, Spain. Their daughter was born in 2008. Both parents were still married and shared custody of the Child under Spanish law. The family lived together in Sevilla until the fall of 2011. On September 30, 2011, Ms. Sanchez and the Child traveled to New Jersey and resided there since that date.

Caro alleged in his Petition that the purpose of the trip was to allow Sanchez a short-term visit with her seriously ill mother. Caro states that he believed Sanchez and the Child would return to Spain in October 2011, but that the return date was extended

by his wife because her mother was still ill. On September 17, 2012, Caro filed an Application for Return of the Child with the Ministry of Justice in Spain, which triggered the U.S. State Department to send a Voluntary Return Letter dated November 29, 2012 to Sanchez, asking her to "consider voluntarily agreeing to return the child to Spain in order to avoid the applicant's initiation of legal proceedings in the United States under the Hague Convention."Sanchez allegedly did not respond. This Petition for Return of the Child to Spain was filed on May 31, 2013.

Sanchez's submitted undisputedly authentic documents to support her factual averrals. She averred that she and her husband jointly decided to move to the United States with the Child. Acting on that plan, in May 2011, Mr. Caro filed an application seeking authorization to travel to the United States under the Visa Extension Program, which would enable him to stay for an extended duration in this country. In September 2011, Sanchez and the Child traveled to New Jersey as "the initial step
of relocation for the family." The family began investigating the possibility of purchasing a house in New Jersey. This fact was supported by a letter from the Realtor with whom they both met to search for a home to buy, as well as financial documents submitted by Caro to be used to qualify for a mortgage to buy real estate in New Jersey. When Caro visited New Jersey in December 2011, he brought along the family dog to live here. Ms. Sanchez averred that while her husband was in the United States on that trip, they jointly continued their search for a house. In mid-2012, Sanchez became employed in New Jersey, rented an apartment with her mother, and enrolled the Child in a Head Start Program. In December 2012, Sanchez received the Voluntary Return Letter from the U.S. State Department. When Sanchez asked Caro about the letter, he said he had requested the letter so as not to lose custody of the Child. In January 2013, Caro again visited Sanchez and the Child in New Jersey.

Sanchez filed a complaint for custody and child support in New Jersey Superior Court on February 1, 2013. On April 27, 2013, Caro sent Sanchez a letter describing his frustration in his job search for a foreign position (he was a Spanish attorney) saying: ... I don't have good news. I've finally been able to speak to someone in charge of the Ministry of Foreign Affairs. They are not going to give me, not even one of the posts/jobs I've applied for at the Embassies and Consulates. The reason is a technical problem that makes no sense explaining it now. There are still other possibilities; but they are more remote. I have to make some contacts with other organizations. I am not going to give up. I will find some alternative. But it is true that the plan for us to go live in another country seems that it will not be possible at this time. One month later, Caro filed the Petition, claiming that his Child had been abducted. Sanchez states that Caro filed the Petition because he realized he would not be able to easily find employment and join the family in the United States. He did, however, in the letter a mere month before claiming child abduction, state that he was continuing to persevere in that job search. 

Caro filed the Petition for Return of the Child on May 31, 2013. He disclosed almost none of the above facts. He initially sought, and was granted temporary restraints based upon his ex parte submissions. However, those were vacated after Caro failed to effect timely service of the Petition in accordance with the Court's Order.  The Petition by Mr. Caro alleged that Ms. Sanchez wrongfully retained the Child in New Jersey. Sanchez did not contest that Caro had custody rights over the child, and that he continued to exercise those rights. Caro claimed that the child was wrongfully retained in New Jersey after a trip from Spain to New Jersey to visit her mother which Caro claimed was intended to be of short duration, while Sanchez has submitted contemporaneous unrefuted documentation showing that the shared intention of the parties when she and the Child left Spain was to establish a new family residence in the United States. Even the family dog relocated here. In light of the documentary evidence presented by Sanchez, Caro's sworn statement that he did not intend for the Child to move to the United States was not credible. The Court found that at the time the Child traveled to the United States in the fall of 2011, both of her parents intended that she move to the United States. Caro and Sanchez jointly searched for a house and relocated the family dog to New Jersey. Caro's affidavit to the contrary was belied by his own heartsick letter, in which he acknowledged the family's plan to relocate away from Spain. There had been no wrongful retention. As of September 30, 2011, the Child's habitual residence had been in the United States. Caro could not unilaterally change the agreement for the Child to move to this country because he was unsatisfied with his job search and wished to alter the joint plan to relocate here.

Once the Court reviewed the papers, in light of Caro's inability to proffer any genuine evidence to meet his burden to prove wrongful retention, it became clear that there was no need for an oral evidentiary hearing to supplement the documentary evidentiary hearing that the Court conducted. The Petition For Return of the Child to Spain was denied.

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