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Wednesday, August 27, 2014

Matter of SLC, 2014 WL 2801053 (M.D.Fla.) [Mexico] [Habitual Residence] [Petition granted]

In Matter of SLC, 2014 WL 2801053 (M.D.Fla.) petitioner Mario Alberto Lopez Morales's filed a Petition against Respondent Nency Castellanos Martinez for Return of Child to the Republic of Mexico on February 14, 2014. The District Court granted the petition.

The parties were married in Mexico on September 6, 2003. Petitioner was a citizen of Mexico and respondent was a citizen of Cuba and Mexico. Their daughter, S.L.C., was born in 2002 and was a citizen of Mexico.  In June 2006, respondent removed S.L.C. from Mexico and brought her to Florida to live with respondent's family due to marital troubles. Petitioner was able to convince  respondent to return to their marital home in Mexico. Respondent and S.L.C. resided with petitioner in Mexico until April 2012, at which time they again returned to Florida without petitioner's knowledge or consent. Petitioner learned that respondent and S.L.C. were located in Florida, and on May, 16, 2012, petitioner filed a Hague  application with the Mexican Central Authority. Petitioner also filed a civil action seeking provisional care and custody over the child in Mexico. In August 2012, petitioner visited his wife and daughter in Florida, and on August 30, 2012, respondent and S.L.C. voluntarily returned to Mexico. As a result, petitioner halted the proceedings under the Hague Convention in Mexico.  Prior to leaving the United States, Castellanos, on behalf of herself and S.L.C., applied for asylum as a Cuban immigrant. Lopez, however, was unaware of the application for asylum.  Upon their return to Mexico, petitioner and respondent did not live together as a family but were separated. Petitioner rented an apartment for respondent and S.L.C., and arranged for S.L.C. to return to the private school she had attended since prekindergarten. Petitioner paid  for their apartment, automobile, food, school, and living expenses. He also deposited money into an account that could only be accessed by respondent.

         On September 12, 2012, respondent filed a criminal complaint against petitioner for  aggravated family violence. On the same day, Castellanos entered the formal marital residence  with the purpose of residing there and took steps to prevent petitioner from entering the  premises. Lopez thereafter resided in an apartment. Petitioner testified that he would take S.L.C. to school in the mornings and would take her to dinner and do homework with her two to three times a week. On weekends, petitioner would spend time with his daughter and take her to visit family and friends. This continued until January 2013. Petitioner was able to contact S.L.C. directly on the cell phone that he had  provided to her. On February 1, 2013, respondent filed a child custody case in Mexico, to which petitioner filed a countersuit seeking guardianship and custody of the child, as well as an order prohibiting the mother from removing the child from Mexico. On February 26, 2013, the court entered an  order prohibiting respondent from leaving the country with S.L.C. during the proceedings.  Prior to the entry of the order, respondent decided to return to Florida. Respondent testified that she entered the United States with S.L.C. on February 24, 2013, without petitioner's knowledge or consent. 
Petitioner discovered the absence of S.L.C. on March 1, 2013, when the child's teacher  advised petitioner that S.L.C. had not attended classes since February 22, 2013. Respondent did not inform petitioner as to S.L.C.'s whereabouts or provide him with any contact information. Petitioner was eventually able to locate S .L.C. with the assistance of federal and local law enforcement agencies.

The evidence showed that S.L.C. was born and raised in Chiapas, Mexico, 
attended school in Mexico, and was a citizen of Mexico. Although S.L.C. lived in Florida for a short period in 2012, without the consent of petitioner, and had now spent  more than a year in the United States, the Court found that her habitual residence had not  changed due to the unilateral actions of respondent. According to the Eleventh Circuit, "in the absence of settled parental intent, courts should be slow to infer from such contacts [with the new residence] that an earlier habitual residence has  been abandoned." Ruiz, 392 F.3d at 1253. Respondent has failed to present any evidence indicating that petitioner and respondent intended to abandon their home in Mexico in favor of moving to Florida. The relatively limited period of time S.L.C. spent in Florida in 2012 was without the consent of petitioner, and therefore violated the Hague Convention. The Court found that the habitual residence of S.L.C. at all relevant times was Mexico. The evidence showed that respondent removed the child from her habitual residence in Mexico without petitioner's consent and retained her in the United States without petitioner's permission. The Court found that there was a "removal" and "retention" of S.L.C. within the meaning of the Hague Convention from at least February 24, 2013, forward. The evidence  established that petitioner and respondent had not agreed to the  terms of exertion of parental authority/responsibility over S.L.C. and that custody proceedings remained pending in Mexico. Thus, the Court found that the rights  and obligations provided by the doctrine of patria potestas created a "right of custody" and  concluded that the rights and obligations of petitioner had not been severed. Additionally, the Hague Convention specifically provides that "rights of custody" include "the right to determine the child's place of residence." Hague Convention art. 5. One parent may not  unilaterally determine the country in which the child will live; this means that "the habitual residence of the child cannot be shifted without mutual agreement."   The Court concluded that the evidence established that respondent's removal and retention of the child was wrongful under the Hague Convention. Respondent's unilateral removal and retention of S.L.C., without the consent of petitioner, violated petitioner's custody rights under the law of Mexico. Petitioner established he was exercising his rights of custody at the time the child was wrongfully removed and retained. Petitioner took steps to remain in contact with S.L.C., such as taking her to school, spending time with her on the weekends, and providing her with a cell phone and iPad. Petitioner testified that he paid for S.L.C. to attend a private school as well as numerous other expenses. 

          The district court noted that a court is not bound to order the return of a child if respondent demonstrates by a  preponderance of the evidence 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; 42 U.S.C. 11603(e)(2)(A). Respondent testified that S.L.C. informed her that she did not want to go back to Mexico and was really happy here. Respondent further testified that S.L.C. was very intelligent and cannot  be manipulated because she knows what she wants. Despite the child's objection, the Court concluded that, under the circumstances of this case, S.L.C.'s opinion on returning to Mexico was not conclusive. S.L.C. was only 12 years old and had been under the exclusive custody of respondent for an extended period of time. Naturally, she preferred to remain here in the United States with her mother instead of moving back to Mexico. The Court found that the return of S.L.C. to Mexico furthered the aims of the Hague Convention, and therefore would exercise its discretion to order her return despite her view.

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