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Saturday, November 16, 2013
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.