De La Vera v Holguin, 2014 WL 4979854 (D. NJ) [Spain] [Habitual Residence] [Petition granted]

In De La Vera v Holguin, 2014 WL 4979854 (D. NJ) the district court granted the Petition of Washington Alberto Delgado De La Vera for the return of his two minor children to Spain.
Petitioner was a Spanish citizen residing in Zaragoza, Spain, and was the father of two minor children, K.H. and G.H. Respondent Sonia Piedad Holgguin, the mother of K.H. and G.H., was a Spanish citizen living in Trenton, New Jersey, with K.H. and G.H. In April 1999, the parties' first child, K.H., was born in Ecuador. In or around fall 2001, the parties moved with K.H. to Zaragoza, Spain.  The parties' second child, G.H., was born in September 2002 in Spain.. Although Petitioner and Respondent never married, the parties lived together with their two children as a familial unit in Zaragoza, Spain, from fall 2001 until July 2012. K.H. lived eleven years of her life, and G.H. lived ten years of her life, in Zaragoza, Spain. Petitioner was employed as a bus driver for over ten years in Spain. Respondent was primarily a stay at home parent who worked for a few months at a time through job placements by a staffing agency.

In July 2012, Respondent was unemployed and traveled to the United States through a visa-waiver, which permitted her to stay in the United States for ninety days, to find short-term work. Respondent purchased a round trip ticket to Orlando, Florida, arriving July 13, 2012 and with a return flight scheduled for October 5, 2012. Respondent left many of her personal items and effects in Zaragoza when she departed for the United States. Shortly after arriving in the United States, Respondent traveled to Trenton, New Jersey, where she knew classmates from Ecuador, and rented a room. From July 13, 2012, through September 14, 2012, the children resided with Petitioner at the family residence in Zaragoza. In September 2012, Respondent suggested to Petitioner that the children travel to the United States. The children traveled to the United States, arriving in Philadelphia on September 14, 2014, bringing along clothing, school records, immunization records, photographs, karate medals, and K.H.'s guitar. The children left many of their personal items and effects in Zaragoza. The children's return flight was scheduled for October 14, 2012. Petitioner testified that the children's trip to the United States was only supposed to be for one month, during which time they would visit their paternal grandfather and then travel back to Spain with Respondent. Petitioner stated that the children brought the guitar, photographs, and medals to “show their grandfather and to leave some of those things with him as a memento. Petitioner testified that he sent the children to the United States with their school and immunization records because Respondent told him “that all those documents were necessary so that you could move around the United States freely. So that if the police were to stop them by showing those documents, she could be supported by those documents.”
In contrast, Respondent testified that she suggested to Petitioner that the children travel to the United States to live with her and attend school in the United States, but Petitioner said no. Respondent stated then suddenly one day Petitioner called her and told her the children would be arriving in the United States that same week and for Respondent to find out the documents needed for the children to begin school when they arrived. As to the length of the children's stay in the United States, Respondent's testimony was inconsistent. First, Respondent testified that she and Petitioner discussed the possibility of the entire family relocating to the United States, including Petitioner and “the girls would come and then see if they would adapt here. If they didn't get adapted to this place, then we would return.”  Later Respondent, however, insisted that Petitioner “knew from the very beginning that the girls were not going to return to Spain” and that Petitioner was also going to move to the United States permanently.

The Court found that Petitioner initially agreed to allow the children to stay abroad for an indefinite duration to attend school in the United States. Petitioner sent the children to the United States at the beginning of the school year with their school records. Prior to leaving Spain, Petitioner did not send the children to the first few days of their school year in Spain. The Court found incredible Respondent's testimony that both parties agreed, before the children arrived in the United States, that the children were not going to return to Spain and that Petitioner would also relocate to the United States.

In October 2012 Respondent advised Petitioner she was ending her relationship with Petitioner for a new man in the United States and that the children would not be returning to Spain. The Court found that Petitioner did not consent to Respondent keeping the children in the United States and began to make arrangements to travel to the United States to bring the children back to Spain. Petitioner arrived in the United States on November 8, 2012. Petitioner intended to take the children on a trip to visit their paternal grandfather in Massachusetts and then bring the children back to Spain. Petitioner ultimately returned the children back to the custody of Respondent pursuant to a court order for temporary custody obtained by Respondent from the New Jersey Superior Court.
On December 8, 2012, Petitioner returned to Spain without the children because he was required to return to work. On December 11, 2012, Petitioner filed a report with the Spanish Department of Homeland Security stating the children were wrongfully detained in the United States without his consent. On or about December 22, 2012, Petitioner submitted a petition for the return of the children with the Spanish Central Authority. On or about July 10, 2014, Petitioner filed the Petition with the district Court.

During the two years of living in the United States, the children lived with Respondent at three different residences. Currently, Respondent rented two rooms from a couple she met after arriving in Trenton two years ago.  The children shared a bedroom on the same floor as the couple, and Respondent has a room in the basement. Respondent and the children share a kitchen and bathroom with the couple.  Respondent has also held four different jobs while in the United States and was working at a factory making approximately $450 per week.  Respondent did not have legal authority to work in the United States. Both children attended school in the United States for two years but did not participate in any extracurricular activities. The only extended family the children had contact with in the United States was Petitioner's father in Massachusetts but have only visited him on two occasions. They overstayed their visas and are not able to travel outside of the United States to visit other extended family members or Petitioner, and the children did not have healthcare insurance.
The Court interviewed K.H. and G.H. separately in camera.  K.H. was fifteen years old and had just begun the tenth grade. K.H. stated that she preferred to live in the United States but might have been okay with returning to Spain in November 2012 if her mother had returned with her and her sister.  G.H. just turned twelve years old and was in the seventh grade. When asked what types of things she does in the United States with her mother, G.H. could only identify going to the mall and had to be prompted to identify more activities such as playing games. When asked directly, G.H. stated she wanted to remain in the United States but did not give any reasons for her choice.

The Court observed that first step in its analysis was determining the actual date of the children's removal or retention “so as to establish the relevant date of [the children's] habitual residence for purposes of the Convention.” Karkkainen, 445 F.3d at 290. Here, the assertion was that the children were unlawfully retained here by Respondent. In determining the date of a wrongful retention, the court pointed out that Third Circuit has agreed that the wrongful retention does not begin until the noncustodial parent clearly communicates her desire to regain custody and asserts her parental right to have her child live with her.” The Court found that the date of retention may have taken place sometime during October 2012, but began no later than November 9, 2012. Petitioner testified that during October 2012 he contacted Respondent and Respondent told him that she intended to remain in the United States with the children permanently. After the telephone call, Petitioner understood that Respondent did not intend to bring the children back to Spain, informed her that he did not consent to the children remaining in the United States, and planned a trip to the United States to bring the children back to Spain.

Having determined that November 9, 2012 was the measuring date of the children's wrongful retention, the Court had to determine the place of the children's habitual residence as of this date. The record indicates that K.H. and G.H. had only been in the United States for a little over a month when the wrongful retention occurred. It could not be said that K.H. and G .H. became “firmly rooted in their new surroundings.”Karkkainen, 445 F.3d at 292. Furthermore, neither party argued that the children had acclimatized to the United States at the time of retention. It was undeniable that Spain was the children's habitual residence before they traveled to the United States. As there was no shared mutual intent, on the part of the parties, for the children to abandon their prior residence and no evidence that the children were acclimatized to the United States prior to retention, the Court concluded that the children's habitual residence immediately prior to November 9, 2012, was Spain.

The Court found that at the time of the children's retention in the United States, Petitioner had rights of custody as established by Spanish law. Respondent's retention over the children in the United States against Petitioner's will violated Petitioner's right to exercise parental authority over K.H. and G.H. in accordance with the Spanish Civil Code and Spanish Constitution. From July 2012 through September 2012, Petitioner was the primary caregiver of the children while Respondent was in the United States. Respondent acknowledged that Petitioner remained in contact with herself and the children during the first few weeks the children were in the United States. Once Petitioner was informed by the authorities in the United States he was not allowed to take the children with him back to Spain against Respondent's wishes, Petitioner began the legal process to have his children returned. These facts sufficiently establish that Petitioner was exercising his custody rights at the time of wrongful retention. The district court held that  Petitioner satisfied his prima facie burden of proving that K.H. and G.H. were wrongfully retained in the United States.

Respondent raised three affirmative defenses recognized by the Convention: (1) that Petitioner consented and acquiesced to the children's retention in the United States; (2) that proceedings were commenced more than one year after wrongful retention and the children are now “well settled” in the United States; and (3) that the children are at an age and degree of maturity at which it is appropriate to take account of their views, and both children stated they wanted to remain in the United States. The court, however, “retain[s] the discretion to order return even if one of the exceptions is proven.”Feder v. Evans–Feder, 63 F.3d 217, 226 (3d Cir.1995).

Nothing in the record demonstrated that Petitioner consented to the children's permanent retention in the United States or to Respondent making unilateral decisions regarding the children's future, nor was there evidence that Petitioner acquiesced to the present arrangement. The evidence did not support Respondent's contention that the arrangement was permanent. Moreover, since learning of Respondent's decision to retain K.H. and G.H. in the United States, Petitioner  objected and pursued his rights under the Convention. Thus, the record demonstrated that Petitioner agreed to allow the children to visit the United States for an indefinite period, but it was unclear that he agreed to anything beyond that. This intent fell short of the standard for finding consent or acquiescence under Article 13(a) of the Convention.

The Court found that K.H. and G.H. were not sufficiently settled here. The children arrived in New Jersey two years earlier and lived in three different residences, and currently shared an apartment with strangers Respondent had only known for a short period of time. The children were not involved in any extracurricular activities, and the only family they had, outside their mother, was a paternal grandfather they had only seen twice. Furthermore, Respondent's employment is not settled as she testified to having at least four different jobs since her arrival, some with hours in the middle of the night. Respondent testified that she dids not have the legal authority to work in the United States. Finally, while not a dispositive factor, the immigration status of Respondent and the children was a factor that disfavors finding the children settled in their new environment. Respondent and the children originally travelled to the United States on a tourist visa that expired in October 2012 and December 2012, respectively. Respondent had not applied for residency or any other visa on behalf of herself or her children. All three were here illegally and thus subject to deportation at any time. The Court found that Respondent had not proven that K.H. and G.H. have settled in their new environment.

The Court noted that while the child's wishes can be the sole reason that a court refuses to order the return of the child to his or her habitual residence a ‘court must apply a stricter standard in considering a child's wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his or her habitual residence. . In analyzing whether to apply the “wishes of the child” exception a court should consider: “whether the child is of sufficient age and maturity for his or her views to be taken into account” and “whether a child's desire to remain or return to a place is the product of undue influence.” The children were fifteen years old and twelve years old and had been in the United States for just over two years. Both children were informally questioned in the presence of counsel but not the parties. Both children expressed the view that they would prefer to remain in the United States, but only K.H. provided reasons for her preference. K .H. expressed that she believed there were better opportunities for her in the United States than Spain and mentioned that she did not believe her mother would return to Spain if she was sent back there. K.H. acknowledged that her job opportunities and her life in the United States in general are more limited than in Spain because of her immigration status. Both children reported to have contact with their extended family members in Spain and acknowledged the only family they had in the United States was their mother and their paternal grandfather, who they had only seen twice. The Court found that K.H. has reached an age of maturity at which it was appropriate to take account of her views. The circumstances do not warrant providing their views controlling weight.  The children had lived here two years, at least in significant part, as direct result of their wrongful retention here by Respondent. As the Third Circuit noted, “[a] lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home.”Yang, 499 F.3d at 280. In such a case, “application of the exception ... would reward [a respondent] for violating [a petitioner's] custody rights, and defeat the purposes of the Convention.”

In addition to requesting that this Court order K.H. and G.H.'s return to Spain, Petitioner sought Petitioner's expenses and costs, including attorney's fees and transportation costs, pursuant to 42 U .S.C. § 11607.  The Court had already determined that the assignment of pro bono counsel to Respondent was appropriate due to Respondent's financial circumstances and inability to pay. Thus, an award of expenses and costs would be “clearly inappropriate.” Petitioner's request for expenses and costs was denied.