In Vilchis v. Hall, Not Reported in F.Supp.2d, 2014 WL 2978378 (N.D.Ill.) Petitioner Carmen Marlyn Solano Vilchis and Respondent Anthoney Wayne Hall were
the parents of two daughters ages five and seven. Solano was born in Mexico and was a citizen of Mexico. In 1999, when she was thirteen years old, Solano moved to the United States with her family and settled in Illinois. She resided in the United States as an undocumented immigrant. Hall was born in Illinois, and was a United States citizen. Solano gave birth to their first daughter in May 2007 and their second daughter in November 2008. The children were United States citizens. The couple lived together sporadically in the Chicago area until October 2010. In October 2010, Solano told Hall that she and her family had to leave Illinois immediately, within a day or two, due to threats made against Solano's sister by the sister's husband, a man named Juan Hacha. The court expressly found that Solano would not have wanted to leave Illinois but for that threat. Hall did not want to leave Illinois and did not want the children to leave Illinois. Hall decided to leave Illinois with Solano so that he could remain with their children. At first, Solano told Hall they were going to California. At some point during the trip, which the entire group took in Hall's truck and two other vehicles, Solano and her family told Hall that they in fact were going to Mexico. Hall persuasively testified that he never wanted to move himself and the children to Mexico. At the time he agreed to leave Illinois, Hall did not intend for the children to establish residence in Mexico. Solano, her family, Hall, and the children arrived in Mexico in mid-October 2010. They spent about two weeks in northern Baja California and then went to Mexico City. In late November 2010, Hall went to the United States Embassy in Mexico City to ask for help in getting the children back to the United States. After a brief stay in Mexico City, Solano and the children moved to the Tijuana area, directly across the border from the United States. Hall returned to Illinois in December 2010 and stayed there for several weeks.
In February 2011, Hall returned to the San Diego area, directly across the border from Mexico. During the next several months, Hall looked for work in the United States and crossed the border every day to see Solano and the children. During that time, Solano wanted to cross the border from Mexico to the United States to live in the United States. Hall visited lawyers in an effort to help Solano achieve that goal legally, but those efforts were unsuccessful. Solano testified she attempted to change her immigration status so that she could try to return to the United States. During Summer 2011, with Solano's consent and financial support, Hall took the children for a trip to the Chicago area. all returned with the children to California, and then brought the children to Mexico to see Solano. Solano told Hill that Hacha, her sister's husband, was back in the picture and in the area, which greatly concerned Hill given his belief that Hacha was dangerous and possibly in a gang or cartel. From mid-September 2011 through mid-October 2011, Hill and the children stayed at the Dreams for Change Safe Parking Program, a parking lot in the San Diego area with amenities where homeless persons may spend the night in their cars. From mid-October 2011 through late December 2011, Hill stayed at the YMCA Cortez Hill shelter with the children. During that time, Hill brought the children to Tijuana to see Solano on some weekends; the visits to Mexico became more frequent when Hill heard that Solano's sister and Hacha were not around. Also during that time, the children were enrolled in Wee Care, a daycare center in Chula Vista, a town between San Diego and the Mexican border; they also received medical care through CalWorks, a state medical program in California, and other benefits through the California Women Infants and Children program. On September 9, 2011, Solano sent an email to Hall stating, in part: "I want the kids to go to school in California defenetely [sic] not in Mexico not at all." In October 2011, Hall sent Solano an email stating: "I will bring them to visit you, i' can't really say when because we are in a program. We found a school the girls liked and they start soon [so] they need the[ir] blankets and pillows. And shoes we go to the park for hours the[ir] shoes wear out fast." This email provided confirmation that the children largely stayed with Hall in Fall 2011 and attended school in the United States. Hall brought the children to Mexico for Christmas break in December 2011. The girls traveled back and forth from the United States to Mexico, spending nights in both places, from January 2010 through May 2012. In April 2012, Hall signed a month-to-month rental agreement for an apartment in Chula Vista; the agreement listed the occupants as Hall and the children. Each child had a bed and toys in the apartment. In May 2012, the children began attending Miss Evelyn's Daycare in Chula Vista, and the older child soon began to attend kindergarten at Julian Rice Elementary School in Chula Vista. From that point through July 2012, the children regularly spent the night with Hall on the United States side of the border. Hall's mother, father, and sister testified at the hearing that they visited Hall during Summer 2012 for about two weeks and that the children stayed with Hall every night. Solano testified at the hearing that she "release[d] the kids back to" Hall in "around June 2012." Solano testified that she did this because Hall told her that he had "a good job" and "an apartment," and she further testified that she and Hall came "to an agreement where the kids will go to school so that they continue to learn their English and keep their language."
In July 2012, Hall enrolled the children in Medi-Care Managed Care, a state
healthcare program operated by California. Hall was unable to pay the rent at the Chula Vista apartment and was evicted by order of a California court in early August 2012. Shortly thereafter, Hall started making plans to return with the children
to Illinois, where Hall had a substantial support network of family. Hall informed Solano, who said that "she was okay with it" and that she just wanted to see the children before they left. Hall believed at the time that Solano would attempt to cross into the United States, legally or illegally, and meet up with Hall and the children in Illinois. Hall and the children left the San Diego -Tijuana area in late August 2012
and lived in Waukegan, Illinois, ever since.
The district court noted that unlike the situation in most Hague Convention cases, the children moved fluidly and regularly (at times daily) between United States and Mexico, with the consent of both parents. This made it difficult to determine whether Hall removed the children from Mexico or retained them in the United States when he took them from the San Diego -Tijuana area to Illinois. In addition the parties' briefs recognized no distinction between the habitual residence analysis in retention versus removal cases. The court held that the parties therefore waived any argument that this case involved retention as opposed to removal (or vice versa) or that the habitual residence analysis differed in any material respect between those two scenarios. The district court noted that the parties agreed that Solano could prevail only if she showed that Mexico was the children's habitual residence in late August 2012, when the alleged wrongful removal/retention occurred. "The determination of 'habitual residence' is to be made on the basis of the everyday meaning of these words rather than the legal meaning that a particular jurisdiction attaches to them ...." Kijowska, 463 F.3d at 586. "The determination of habitual residence under the Hague Convention is a practical, flexible, factual inquiry that accounts for all available relevant evidence and considers the individual circumstances of each case." Redmond, 724 F.3d at 732. "Determining a child's habitual residence ... requires an assessment of the observable facts on the ground, not an inquiry into the child's or the parent's legal status in a particular place." The district court pointed out that the Seventh Circuit had loosely adopted the framework set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), for determining habitual residence. "In the case of young children, the [Mozes] court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence." Koch, 450 F.3d at 713. The district court must "determine whether the parents intended to abandon their previous habitual residence, judging that intent at the last time the parents had a shared intent." As the Seventh Circuit made clear, the district court also must consider, in addition to the parents' last shared intent, "the child's acclimatization" to one country or another. Redmond, 724 F.3d at 746.
It was undisputed that until Solano, Hall, and the children left Illinois in October 2010, the children's habitual residence was the United States. The question was wether their habitual residence changed to Mexico at any point between October 2010 and late August 2012. The court held that answer to that question was "no". Hall never intended that his children would reside indefinitely in Mexico. Hall allowed the children to leave Illinois in October 2010, and he agreed during the trip to the West Coast that the children would go to Mexico. But the circumstances of the group's departure from Illinois were extenuating, prompted by threats from Hacha that were sufficiently dire and credible to compel the family to pick up and leave Illinois on such short notice. It was always Hall's intention that the children would return with him to the United States, albeit in southern California rather than Illinois, so that the children (and possibly Hall) could remain close to Solano, who could not legally cross the border into the United States. These conclusions were proven by, among other things, the fact that Hall asked the United States Embassy in Mexico City in November 2010, shortly after the group's arrival in Mexico, for help in getting the children back to the United States; Hall's extraordinary efforts to have the children live with him in California, even if it meant living in a parking lot for homeless families or a YMCA shelter; Hall's seeking legal assistance in an effort to obtain legal status for Solano in the United States; and Hall's enrolling the children in daycare, school, and the state medical assistance program in California. This showed that Hall never intended for the children to relocate indefinitely from the United States to Mexico. This was significant because precedent required the court "to determine whether the parents intended to abandon their previous habitual residence, judging that intent at the last time the parents had a shared intent." Koch, 450 F.3d at 709. Thus, even if Solano had intended for the children to reside indefinitely in Mexico, that intent was not shared with Hall, which meant that their last shared intent was for the children to reside indefinitely in the United States, which in turn favored the conclusion that their habitual residence was the United States.
The evidence showed that Solano herself did not intend for the children to reside indefinitely in Mexico. This was proven by, among other things, Solano's testimony that she has made efforts to obtain legal immigration status in the United States in order to return there; Solano's September 2011 email to Hall stating, "I want the kids to go to school in California defenetely [sic] not in Mexico not at all"; Solano's admission that she "release[d] the kids back to" Hall in "around June 2012" upon learning that he had "a good job" and "an apartment"; her further admission that she and Hall came "to an agreement where the kids will go to school so that they continue to learn their English and keep their language"; and Solano's deposition testimony that she did not want the children to go to school in Mexico and that she preferred that they attend school in California "to keep their English." Solano's efforts to obtain legal status in the United States reflected a desire to return to the United States to be with the children and possibly Hall. Solano's strong desire for the children to attend school in the United States and not Mexico, and for the children to keep their English skills, reflected an intent that her children make the United States their home; if she wanted the children to live in and become acclimated to Mexico then it would have been important for them to attend school in Mexico. The fact that Solano agreed to "release" the children to Hall once she was assured that Hall had a job and an apartment showed that her intent was not that the children reside indefinitely in Mexico, but that the children stay in Mexico until Hall had an acceptable place for them to live in the United States.
Because "the parents' last shared intent" is not "a kind of fixed doctrinal test for
determining a child's habitual residence," Redmond, 724 F.3d at 732, the court also
considered the children's "acclimatization" to the United States and Mexico, respectively. The children moved fluidly across the border and spent nights with Solano in Mexico and Hall in the United States, so their actual location during the relevant time frame was a wash. Most significant in terms of acclimatization was that the children were enrolled in daycare and school and received healthcare services in the United States. It could not be said that the children acclimated to Mexico while attending daycare and school in the United States, even granting that Solano's family resided largely if not exclusively in Mexico. Solano's acknowledged goal of obtaining legal status in the United States reflected her desire to come back to the United States and thus her understanding that the children would remain acclimated in and make their home there.
The Court found that Solano did not prove that the children's habitual residence in late August 2012 was Mexico, and therefore she did not prove that Hall's removal of the children from Mexico or retention of the children in the United States was wrongful within the meaning of Article 3 of the Convention. Given this conclusion, there was no need to determine whether Solano consented to the retention or removal within the meaning of Article 13(a).