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Monday, December 16, 2013

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.

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