Tuesday, August 26, 2014
Buenaver v Vasquez, --- F.Supp.2d ----, 2014 WL 3058250 (E.D.N.Y.) [Colombia] [Now Settled] [Petition Granted]
In Buenaver v Vasquez, --- F.Supp.2d ----, 2014 WL 3058250 (E.D.N.Y.) Petitioner and Respondent were married in Colombia. On January 31, 2005, their child, R.V.B. was born in Cali, Colombia. By order dated June 2, 2009 of the Seventh Family Court in Cali, Colombia, Petitioner and Respondent were divorced. The Order stated: With respect to the minor [R.V.B.], the spouses have agreed that parental rights will continue to be exercised by both parents; the custody and personal care will be held by the mother. The Order further defined the Father's visitation with the Child, The Father was also ordered to pay child support in the amount of one million five hundred thousand pesos (COP $1,500,000) and 80% of additional expenses, such as school materials and medical expenses. The Father, a commercial pilot with Avianca Airlines, exercised his rights of visitation and paid child support as directed, including tuition at a private school. In February 28, 2011, the Mother"summoned the father of the minor... for the purpose of requesting an increase in the fee for child support ...The Mother and Father entered into an agreement, approved by the Ministry of Social Welfare in the Republic of Colombia, to increase the amount of child support paid by the Father and they ratified the terms of the earlier Order, including visitation rights. The Modification stated that "the custody and personal care" will be held by the Mother, and further stated: The parents are obliged to provide their daughter with support, stimuli, good example, care, attention, affection and dedication required to fully, efficiently and satisfactorily fulfill their obligation, aimed at the minor being brought up in an environment surrounded by safety, discipline, affection, organization, respect and proper attention of her formation, friendships and
healthy psychological development.
There was no material dispute concerning the circumstances surrounding the
removal of R.V.B. from Colombia to New York. The Father was aware of and consented to the Child traveling with the Mother to visit the Mother's sister, Maria
Patricia Vasquez, in New York from December 16th to December 26, 2011. The Mother acknowledged that she needed to Father's consent to take R.V.B. on vacation. R.V.B. did not return to Colombia as the Father expected on December 26th. When the Father realized the Child was not on the plane, he called the Mother's mother to find out what happened, and was told that the Mother said she would not be returning to Colombia. On January 1, 2012, the Father received a phone call from the Mother, who confirmed she would not be returning to Colombia.
On August 1, 2013, the Father filed his petition under the Hague Convention.
The Mother testified that when she first came to New York, she and R.V.B. lived
with her sister and her sister's family in Elmont, New York, where she and R.V.B.
stayed for about a year. Soon after arriving in New York, beginning in January 2012, R.V.B. enrolled in school and attended first grade at the Clara H. Carlson School in the Elmont Union Free School District. R.V.B.'s . report card noted she "has made new friends" and "has progressed." She had a separate report card for the English as Second Language ("ESL") program she was taking at school, which noted her teacher's amazement at how much English she had leaned so quickly, and that work was needed to catch up her on reading and writing skills. While at Clara, in April and June 2012, R.V.B. was awarded the Sponge Award and Student of the Month in her ESL class. For second grade, R.V.B. attended a different school in the Elmont School District, Covert Avenue School. R.V.B.'s ESL Report Card in the 2012-2013 school year, her second grade year, noted her progress and her excellent work habits. Yet, her classroom report card noted that she was not meeting grade level expectations in reading, writing, math, science or social studies. The Mother testified that while at Covert, R.V.B. was awarded the Student of the Month. Following second grade, at the suggestion of her teachers, R.V.B. attended an ELS summer program before starting third grade to help her get her reading and writing skills to grade level. In September 2013, after she and her Mother moved to Bayside, Queens, R.V.B. started attending another school in that neighborhood. Since starting the school in Bayside, she attended an after-school program three days a week, which included classes on chess, yoga and cooking. R.V.B. also received tutoring help for math, reading and language,, and in the summer of 2013, began taking tennis lessons. The Mother testified that R.V.B. has adopted English very well, speaking English with her friends, watching TV in English, and reading and writing all of her schoolwork in English. Socially, her mother testified that R.V.B. has made several friends, both in and out of school and from her old school, attends birthday parties, and socializes with the relatives who live locally. She has medical insurance through Health First and received regular medical care. The Mother testified that after living with her sister for almost a year, she and R.V.B. moved to 453 Cameron Avenue, Elmont, a second floor apartment belonging to a friend for which she paid $300 .00 a month in rent. They stayed there for five months, until they moved to the apartment in which they lived now, in Bayside, paying $1,000 per month for rent. The Mother and R.V.B. currently live in this apartment by themselves, and R.V.B.'s school, P.S. 31, was a block away. The Mother worked cleaning houses and offices and babysitting. Upon furthering questioning by the Court, the Mother testified that she did not work and was essentially supported by her sister for the year that she lived with her. They had a family disagreement that caused the Mother to move out with R.V.B., but their relationship is fine now. The Mother began work cleaning houses, and worked at a Laundromat for a short period of time. There was also testimony that she worked at Checkers for a time. Currently, she cleaned houses and babysits if asked. In 2012 and 2013, the Mother testified she earned approximately $550.00 per week. When the Mother and R.V.B. came to New York, it was on tourist visas. The Mother's visa expired in either March or April of 2012, and she applied for residential immigration status in September 2012 for her and R.V.B., stating that she had custody of R.V.B. The Mother testified that because she is in the process of soliciting a residential visa, if she leaves the country, she will not be able to re-enter for ten (10) years.
The Mother claimed that she was never in hiding from the Father since arriving
in New York. He never emailed the Mother once between the time she and R.V.B. left
Colombia and the filing of the Petition, even though her email address was still
the same. She also testified that she had given the Father her sister's address in New York as 147 Hunnewell, Elmont, in July 2011, six months before she left, as well as her sister's cell phone number, neither of which changed while she was living there with the Child.
The Court observed that if an action for return of the child has been commenced within one year of the wrongful removal or retention, the judicial authority "shall order the return of the child forthwith."See Hague Convention, art. 12. If more than one year has passed before proceedings have commenced, the authority "shall also order the
return of the child, unless it is demonstrated that the child is now settled in
its new environment."Id. The respondent opposing return of the child must show
that the child is settled by a preponderance of the evidence. See 42 U.S.C. s
11603(e)(2)(B); Lozano v. Montoya, --- U.S. ----, ----, 134 S.Ct. 1224, 1229, 188
L.Ed.2d 200 (2014).
The Court pointed out that the Order concerning their divorce specifically stated that the Mother and the Father share "parental rights." Specifically, it stated:
With respect to the minor [R.V.B.], the spouses have agreed that parental rights
will continue to be exercised by both parents; the custody and personal care
will be held by the mother. There was no dispute between the parties that under Colombia law, by nature of at least his visitation rights with the Child, the Father's consent was required for the Child to leave the country. Here, like in Abbott, the
Father's consent was required for the Child to leave the country. In Abbott, the
Supreme Court viewed that as one that constitutes a right to establish the child's
residency, and as such, is a "right of custody" as defined by article 5 of the
Convention. By the same reasoning, the Court found that the Father's right to
authorize the Child to exit Colombia was a right to establish the Child's
residency, and thus a "right of custody" protected by the Hague Convention.
There was no real dispute in this case that the Father had consented for the
Child to travel to New York to visit with the Mother's sister and family until
December 26, 2011. In light of the Court's finding that the Father had "rights of
custody," the Mother's retention of the Child in New York beyond the period of
time consented to by the Father was wrongful. Nor was there any dispute that Colombia was the Child's habitual residence. It is where her parents were married, it is where she was born, it was where the parents got divorced, and is where the Child has lived for her entire life, until moving to New York. Thus, the Court found that Colombia was the Child's habitual residence, and it was from there that the Mother wrongfully retained her.
The Court pointed out that the court may consider whether the child is "settled in its new environment" if the petition has been filed over one year since the wrongful
removal. Convention, art. 12; 42 U.S.C. s 11603(e)(2)(B); Lozano, 572 U.S. ----,
134 S.Ct. at 1229, 188 L.Ed.2d 200. If an action for return of the child has been commenced within one year of the wrongful removal or retention, the judicial authority "shall order the return of the child forthwith."See Hague Convention, art. 12. If more than one year has passed before proceedings have commenced, the authority "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." The respondent opposing return of the child must show
that the child is settled by a preponderance of the evidence. The Second Circuit has found that " 'settled' should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano, 697 F.3d 41, 56 (2d Cir.2012). Stating that the court may consider "any factor" relevant to the child's living arrangement, the Second Circuit outlined that when evaluating if the child is settled, the factors a court should generally consider are: (1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment
and financial stability; (6) whether the child has friends and relatives in the
new area; and (7) the immigration status of the child and the respondent. Loranzo, 697 F.3d at 57.
The Court held that the immigration status of the child is not "singularly dispositive" but the importance of this factor on settlement "will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal
status or otherwise remain in the United States, the child's age, and the extent
to which the child will be harmed by her inability to receive certain government
benefits." Loranzo, 697 F.3d at 57. The Second Circuit has declined to adopt a
categorical rule that this factor should only be dictated by the threat of deportation. The stability of the child's residence factor is a factor when evaluating if a child is settled. The Court found that the Child here was not sufficiently settled to warrant denying the return order. The record reflected that since the Child arrived in New York, she lived in at least three different locations. Initially, she lived with her Mother's family for about a year until a family dispute forced she and the Mother to find a new place to live. She then lived with a co-worker for a period of several months. Most recently, the Child and Mother live in a rented apartment in Bayside. These frequent moves have also caused the Child to attend three different schools since arriving in New York. From January 2012 until the end of that school year, she attended the Clara School. She attended the Covert Avenue School for the 2012-2013 school year (her second grade), and started yet a third school, P.S. 31, in the 2013-2014 school year for third grade. This is not settled. Furthermore, the Mother's employment was not settled. She testified that she was currently cleaning offices and babysitting when asked. There was evidence that for some unspecified periods of time, she worked at Checkers Restaurant and a Laundromat, and it was unclear from the record the reason for her leaving those jobs. The Mother testified that she earned approximately $550 per week and paid $1000 a month in rent. Finally, while not a dispositive factor, the immigration status of the Mother was a factor that disfavored finding the Child is settled in her new environment. The Mother testified that she and the Child originally traveled to New York on a tourist visa that expired in either March or April 2012. In September 2012, she applied for residency on behalf on herself and the Child, which application was pending. Thus, the Mother and Child were here illegally, and subject to deportation at any time. While there was no evidence that deportation was imminent, and indeed, may never occur, it was a threat that clouded the Child's daily living.
Considering all the various factors, and based on the facts that the Child had
already lived in various places, has attended three different schools since coming
to New York, that the Mother's employment and financial situation are unstable,
and the immigration status, the Court found that Respondent had not proven that
the Child was settled in her new environment to deny her return to Colombia. The petition was granted.