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Wednesday, August 27, 2014

San Martin v. Moquillaza, Not Reported in F.Supp.2d, 2014 WL 3924646 (E.D.Tex.) [Peru] [Habitual Residence] [Petition granted]

In San Martin v. Moquillaza, Not Reported in F.Supp.2d, 2014 WL 3924646 (E.D.Tex.) on July 7, 2014, Petitioner Ana Maria Veronika Mori San Martin filed an action seeking the  return of her nine-year-old and twelve-year-old daughters, both minors ("A.C.C.M.M. and A.A.M.M."), to Peru.   An attorney ad litem was appointed to interview the children, and be present during the in camera interview of the children with the Court.

         A.C.C.M.M. was born in Peru in 2002, when her mother, Petitioner, was 15
years-old and her father, Respondent, was 22 years-old.   In 2005, A.A.M.M. was
born in Peru.   Petitioner and Respondent are the biological parents of both
children.   Petitioner, Respondent, and the children lived in the same familial
home in Comos, Lima, Peru, until October of 2008, when Respondent left Peru and
moved to the United States for work.   He returned to Peru in March of 2009,  and
Petitioner and Respondent were married on April 8, 2009.   Respondent left Peru
again in May of 2009, and returned in December of 2009.   Over the next few  years,
this pattern continued with Respondent returning to Peru for approximately one month out of every year, and returning to the United States where he resided for the remaining eleven months.   Petitioner and Respondent separated, but continued to act as a married couple until 2012.  After their separation, the children continued living with Petitioner in the family home in Comos, Lima, Peru. The children attended school there, and lived close to their aunts and cousins.   When Respondent would visit Peru, he would stay with a cousin, but would visit with the children and they would stay with him
at times.   Until June of 2013, the children had never left Peru.    Petitioner
testified that when Respondent originally left Peru to go to the United States, the plan was to obtain legal resident status for himself, as well as for Petitioner and the children so that the  family could move to live in the United States.

In April of 2013, the parties entered into the Final and Complete Certificate of Conciliation that set forth their voluntary compromise and settlement agreement regarding custody of the children, visitation, alimony, and child support.   The agreement set out a monthly amount for spousal alimony and a monthly amount of support for the children.   The agreement also set out that the children are to reside in the home of their mother in Peru, allowed Respondent to visit the children in Peru as long as he did  not alter the schedule of studies, and provided that the children may visit the home of their father in the United States for two weeks in the mid-year school holidays and in the summer holidays, with Respondent bearing the travel expenses and costs for the visits.   Both parties signed and fingerprinted the agreement, and both agreed that the agreement was entered into voluntarily.

         On June 24, 2013, Petitioner signed an Authorization for Foreign Travel of Children form for both children, which allowed them to travel with Respondent from Peru to the United States beginning on June 25, 2013, and required Respondent to
return the children to Peru on July 10, 2013.   The children left Peru with
Respondent on June 27, 2013, and, as of the date of the bench trial, had not been returned to Peru.   The evidence revealed that Petitioner agreed to a limited extension of the children's visit to the United States, did not agree to the children's permanent removal from Peru, and that at the end of the requested extension Respondent refused to return the children. On February 12, 2014 petitioner submitted a request to the  Central Authority of Peru, and on March 3, 2014,  Petitioner's Request for Return of the Children was submitted to the United States Department of State through the Peruvian Central Authority.

The district court pointed out that although not defined in the Convention, a child's habitual residence is the place one would call his customary residence.   Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993) (Friedrich I).   A person can have only one habitual residence .The Court must look back in time and not forward in determining a child's  habitual residence.  It was undisputed that the children were habitual residents of Peru before they left with their father in June of 2013. The Court found that the Peruvian Civil Code titled "Codigo de Los Ninos y Adolescentes" provides that when the parents are separated, "the custody of the children or adolescents is determined by mutual agreement between both parents, taking into consideration the child's and adolescent's opinion."   Codigo de Los Ninos y
Adolescentes, art. 81.   If there is no agreement,  " custody shall be resolved by the specialized judge, ordering the measures required to comply  with such order."  
 Petitioner and Respondent in this case entered into a Certificate of Conciliation, which provided that Petitioner has primary custody of the children, and grants Respondent visitation with the children in the United States.   It was  undisputed that Petitioner had  primary custody of the children, and was exercising her custody rights at the time the children were removed. Petitioner thus, satisfied her burden to show by a 
preponderance of the evidence that she had custody rights, and that the children
were removed from Peru in violation of those rights.  

  Respondent and his witnesses testified that Comos, a county in Lima, Peru, where the children and Petitioner resided was a beautiful, but dangerous place.
Respondent testified that when he was ten-years-old, his cousin was kidnapped and strangled near the school, which was five minutes away from the school where the
children are enrolled.   Respondent testified that the drivers in Comos are negligent, and that the children witnessed a car accident in which a small child was hit and killed by a car.   Respondent testified that there is a lot  of criminal activity, and that on many occasions cell phones and wallets are stolen from Petitioner and other family members.   Ms. Anglas testified that she feared for all children living in Comos.   Ms. Ramirez testified that children are not in danger in Comos, that they live in a suburb area where they have many friends and a police officer that lives nearby.   Ms. Ramirez agreed that some bad things have happened to her family members, but that they were many years ago.    Respondent also testified that returning the children to Peru would be a grave risk to the children because Petitioner often drank alcohol and left the children either unattended or with another adult so that she could go to parties. Respondent testified that the children have seen their mother intoxicated to the point where she could not stand up or take care of the children.   Respondent  also testified that on one occasion Petitioner left A.C.C.M.M. alone in the home while she attended a party.   Petitioner agreed that she had left A.C.C.M.M. in the home while she attended a party, but stated that another adult, Mr. Diaz, stayed overnight with her, and A.C.C.M.M.'s grandmother arrived in the morning to pick her up.   Mr. Diaz agreed that he stayed overnight with A.C.C.M.M. on that occasion, and that he has seen Petitioner consume alcohol at parties.   Respondent also testified that Petitioner hit one of the children with a belt on one occasion.   Petitioner testified that she has never hit the children with a belt or spanked the children.  The court found that this  testimony by Respondent was
simply not enough to establish by clear and convincing evidence that the children would be in  grave risk of physical or psychological harm if returned to Peru, or
that Peru cannot provide adequate protection to the children.

           At the close of the parties' cases, the Court questioned both children separately in camera.   The attorney ad litem was present for this questioning and given the opportunity to question her client.  The Court found that it was not appropriate to take into account A.A.M.M. or A.C.C.M.M.'s view.   During the in camera interview, due to the young age, immaturity, and timidity of A.A.M.M., the Court did not reach the question of whether she would prefer to live in the United States or Peru.   A.C.C.M.M., twelve-years-old, testified that when she came to the United States with her father, she thought it was a vacation, but that she was thinking about staying in the United States.   Of concern to the Court was that when  asked where she would like to live, A.C.C.M.M. stated that she wanted to live with her father and her mother in the United States as one family in one house. A.C.C.M.M. did not appear to grasp that her mother lived in Peru, and, at least for the present time, was not coming to the United States.  It was  not clear that she understood the purpose of the proceedings, and that gravity of her choice to live in the United States.   A.C.C.M.M.'s stated reason for wanting to live in the United States was because she liked the school here better, and it was not as dangerous as it was in Peru.   The Court found that A.C.C.M.M. was confused by the circumstances producing the litigation, and did not understand the choice she was being asked to make. The Court found that neither of the children understood the proceedings and their right to state their preferences, and did not unequivocally express a desire to remain in the United States for any reason other than generalized affinity for this  country after having lived here for the last year.   Thus, the Court found that Respondent failed to meet his burden to establish that one or more of the affirmative defenses apply to prevent the return of the children in this case.

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