Tavares v Morales, 2014 WL 2038318 (S.D.N.Y.) [Spain] [Now Settled] [Petition Denied]

In Tavares v Morales, 2014 WL 2038318 (S.D.N.Y.)  Inocencia Herrera Taveras's , who resided in Spain, filed a Petition seeking return of her child, LAH. The Court held that although Petitioner  made out a prima facie case, Respondent established that the child was now "settled" in the United States and denied the petition.

LAH, was born in Santo Domingo, Dominican Republic, on September 20, 2005. Petitioner and Respondent, who never married, lived together with LAH in the Dominican Republic from the child's birth until September 2007.  The parties separated in September 2007.  In approximately March 2008, Petitioner moved to Spain in order to take advantage of a better economic climate, and the child began to live with Respondent, who remained in the Dominican Republic.  Respondent returned the child to Petitioner on December 9, 2009, when Petitioner returned to the Dominican Republic after acquiring Spanish residency. In early March of that year, Petitioner decided to return to Spain and made plans to leave the child with Respondent. In June 2010, Petitioner returned to the Dominican Republic from Spain. The child then moved in with Petitioner.  On August 29, 2010 Respondent arrived at Petitioner's home and took the child, over Petitioner's objection. Petitioner-who was seven months pregnant with LAH's half-sister-then traveled to Respondent's home in an attempt to recover LAH. On  the following day the parties signed an agreement stating that Respondent "relinquishes and gives custody of the minor [LAH] to Ms. Inocencia Herrera Taveras"; that "Ms. Inocencia Herrera Taveras accepts custody of the minor [LAH], with all legal consequences"; and that "Mr. Jose Leopoldo Alonzo Morales will have visitation with his daughter during the school vacation period and will maintain phone communication with
her." On September 10, 2010, the First Court of Children and Adolescents of the National District in the Dominican Republic issued an order that "approved" the parties' August 30, 2010 agreement. 

Petitioner returned to Spain in September;  after her departure, LAH, who remained in the Dominican Republic, lived with Petitioner's mother and visited with Respondent on weekends.  On February 2, 2011, LAH left the Dominican Republic to live with Petitioner in Spain.  LAH became a legal resident of Spain by April 2011, and remained there until May 2012. Respondent's mother obtained US residence in 1998 through her sister, who was a United States citizen. With his mother's "sponsorship," Respondent applied for residence in 2000, before LAH was born.  Respondent moved to the United States in April 2011, while LAH was in Spain, and eventually obtained his residence.   When Respondent became aware that he could also apply for LAH's residence, he conferred with Petitioner, who agreed that LAH should apply for United States residence. LAH's application for residence was submitted in 2008.    In April 2012, the United States embassy in the Dominican Republic contacted Respondent to inform him that it had scheduled an interview for LAH's permanent residence application. Petitioner agreed to send LAH to the Dominican Republic and, ultimately, the United States.  LAH arrived in the Dominican Republic on May 5, 2012, and completed the consular interview, accompanied by Respondent and his mother. LAH remained in the Dominican Republic until early July. She spent part of that time living with Petitioner's family and part living with Respondent, his mother, and other members of his family. Respondent left the Dominican Republic for the United States on June 26, 2012, and Petitioner arrived in the Dominican Republic from Spain on June 28, 2012. With Petitioner's permission-LAH traveled from the Dominican Republic to the United States accompanied by Respondent's mother and arrived in the United States on July 12, 2012.  Respondent and his mother testified that approximately twenty-eight days after LAH entered the United States they were informed that she had received her residence card at approximately this time . According to LAH's permanent residence card, she became a United States resident on July 11, 2012.    According to Respondent, he told Petitioner that LAH had obtained her permanent residence almost immediately after LAH received the card-approximately twenty-five to thirty days after LAH had arrived in the United States. Respondent testified further that Petitioner demanded LAH's return. Petitioner testified that after LAH arrived in the United States, Respondent repeatedly dodged her questions about whether the child had received her residence, stating only that "[t]hings will arrive." According to Petitioner, the first time Respondent told her that LAH had received her residence was in a conversation on November 25, 2012.  

The Hague Petition was filed on October 31, 2013. The Court observed that 
to make out a prima facie case under the Hague Convention, the petitioner must
show, inter alia, that "the child was habitually resident in one State and has been removed to or retained in a different State. Respondent challenged only this element. habitual residence of the child." Petitioner understood that the child would eventually return to live in Spain. This understanding was manifest in the parties' May 5, 2010 "Amicable Agreement," which provided that after LAH obtained her residency, she was to "reside and study in Spain with her mother" and would "spend December and summer holidays in the United States of America with her father." The parties' August 30, 2010 custody agreement confirmed this understanding. Petitioner testified unequivocally that she understood that Spain would be the child's residence, and nothing in Respondent's testimony suggested otherwise. Petitioner has demonstrated that Spain is the child's habitual residence,  and with that showing has established a prima facie case.

The District Court noted that when a child has been wrongfully retained, Article 12 of the Convention requires the court to "order the return of the child forthwith" if the petition is filed within one year of the wrongful retention. Article 12 then provides: "The
judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new environment."    This provision thus "allows-but does not require-a judicial or administrative authority to refuse to order the repatriation of a child on the sole ground that the child is settled in its new environment, if more than one year has elapsed between the abduction and the petition for return." To determine when the one-year period began to run the Court adopted the definition of the official Reporter of the Hague Convention which noted that "[t]he fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence." . When the petitioner
consents to the child's stay with respondent until a specific date, the retention
becomes wrongful after that date-the date "on which the child ought to have been
returned."Perez-Vera Report P 108. If, on the other hand, the petitioner does not
specify a return date at the outset, or initially consents to a stay of indefinite
duration, the retention becomes wrongful on the date the petitioner "refused to
agree to an extension of the child's stay." The Court concluded that regardless of
whether it credits Respondent's testimony or what the Court views as the more
plausible version of Petitioner's testimony, the retention became wrongful before
October 31, 2012. The "now-settled" defense was available to Respondent. The  Court concluded, -based on Petitioner's unequivocal testimony,  that she did not consent to Respondent's retention of LAH became wrongful as of the end of the summer of 2012. Because her Petition was filed over one year after the end of summer 2012, the "now-settled" defense was available to Respondent.

The Court noted that although the Hague Convention does not define the phrase "settled," the Second Circuit has explained that the term "should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir.2012). Although courts "may consider any factor relevant to a child's
connection to his living arrangement," the Circuit has explained that courts
should "generally" consider: (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. The court reviewed each of these factors and concluded that LAH was settled in the United States.

  The Court recognized that it may order repatriation notwithstanding
Respondent's proof of an Article 12 defense. Blondin v. Dubois, 238 F.3d 153,
164 (2d Cir.2001) ("As we read Article 12, it allows-but does not, of course,
require-a judicial or administrative authority to refuse to order the repatriation
of a child on the sole ground that the child is settled in its new environment, if
more than one year has elapsed between the abduction and the petition for
return."). It chose not to do so here. This was not a case in which Petitioner waited
years to assert her custody rights. The child's interest in remaining settled is also a factor the Court may consider. As the Supreme Court has explained, while the Convention "reflects a design to discourage child abduction," it "does not pursue that goal at any cost." Lozano v. Alvarez, --- U.S. ----, ----, 134 S.Ct. 1224, 1235, 188 L.Ed.2d 200 (2014). In certain instances, "the child's interest in settlement" may overcome the petitioner's right to adjudicate the custody dispute in the child's habitual
residence. This was one of those cases. Because the evidence shows overwhelmingly that LAH was now settled- thriving-in the United States, the Court declined to exercise its authority to order repatriation notwithstanding Respondent's Article 12 defense. The Petition was denied.