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.