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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.
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.