Berezowsky v Ojeda, 2014 WL 4216286 (5th Cir, 2014) [Mexico] [Habitual Residence] [No Habitual Residence]

In Berezowsky v Ojeda, 2014 WL 4216286 (5th Cir, 2014) Michelle Gomez Berezowsky filed a petition under the Hague Convention, asserting that Pablo Angel Rendon Ojeda had wrongfully removed their child, PARB, from Mexico to Texas. The district court granted Berezowsky's petition and ordered that PARB be returned to Mexico. The Fifth Circuit held that Berezowsky failed to meet her burden of establishing that Mexico was PARB's place of habitual residence. It vacated the district court's order and remanded with instructions to dismiss. 

The Fifth Circuit noted that Berezowsky and Rendon were both Mexican nationals. In September 2008, Berezowsky learned that she was pregnant and she and Rendon became engaged. By March 2009, their relationship had deteriorated to the point that Berezowsky moved to her parents' home in Kingwood, Texas, and cut off communication with Rendon.   Berezowsky was living in the United States on a student visa.  She gave birth to PARB on May 31, 2009, in Kingwood, Texas. Approximately one month after PARB was born, Rendon learned his child's name, sex, and date of birth through a private investigator.

In February 2010, Rendon brought the parties custody dispute to the 410th District Court of Montgomery County, Texas, where Berezowsky and PARB were living at the time. The parents litigated PARB's custody in the Texas state court system for the next two years while PARB continued to live in Texas with his mother. More than a year later, Berezowsky and Rendon stipulated that Rendon was PARB's biological father. The 410th District Court of Texas entered an order awarding Rendon and Berezowsky joint parental rights, and giving Rendon the right to determine PARB's residence (Texas Order).  The Texas Order limited PARB's primary residence to three geographic areas in Mexico “until further order of the court of continuing jurisdiction or agreement of the parties.” It also required each parent to give notice to the other before traveling with PARB outside of Mexico. The Texas Order gave Berezowsky standard visitation rights and ordered her to pay child support. Pursuant to the Texas Court Order, Rendon drove across the border with PARB to Cuernavaca, Mexico, in October 2011. Berezowsky moved to Mexico City on October 18, 2011, and then moved to Cuernavaca two weeks later.  Berezowsky filed a suit to terminate Rendon's parental rights in Cuernavaca, in the State of Morelos (7th Mexican Court). On January 12, 2012, the 410th District Court of Texas found that Berezowsky was in violation of the possession and access, as well as the passport provisions of the Texas Order, and had wrongfully withheld PARB from Rendon for a period of time greater than one month (Second Texas Order). The 410th District Court of Texas noted that Berezowsky had “claimed to the courts of Morelos[, Mexico,] that the child was abducted from Texas by his father” and then concluded that Rendon was in compliance with the Texas Order, had not abducted PARB from the United States, and had a superior right to possess PARB.  The 410th District Court of Texas also issued a temporary restraining order, prohibiting Berezowsky from interfering with Rendon's right to possess PARB, or  hiding or secreting PARB. The 410th District Court of Texas suspended Berezowsky's rights to possession of, and access to, PARB pending a further order from that court.  On the same day, the 410th District Court of Texas also signed an order clarifying that Berezowsky and her parents were misrepresenting the Texas Order “to the courts of Morelos or the United Mexican States.  The 410th District Court of Texas explained that the Texas Order “is a valid, existing, final and enforceable order, and the matter of the primary custody of the child PARB is res judicata.”In addition, the 410th District Court of Texas clarified that unless and until an appellate court reversed the Texas Order, that it would remain both final and enforceable. Subsequently, the 410th District Court of Texas gave Rendon sole custody and the exclusive right to designate PARB's primary residence with no geographic restrictions. Berezowsky was appointed possessory conservator with only the right to receive information from Rendon regarding PARB's health, education, and welfare. Berezowsky was given supervised visits with PARB . Despite this order, Berezowsky continued to maintain possession of PARB in Mexico. In August 2012, she moved from Cuernavaca to Mexico City. 

  On September 18, 2012, the 11th Mexican Court recognized and enforced the Texas Orders and ordered Berezowsky to immediately surrender PARB to Rendon. On October 11, 2012, Rendon arrived at PARB's school with a group of men just as PARB was being released to go home. Rendon left with PARB.  On November 1, 2012, Rendon drove across the border and entered Texas with PARB. The 24th Mexican Court reaffirmed that Berezowsky had exclusive rights to, and custody of, PARB. 

On November 30, 2012, Berezowsky filed a petition in the United States District Court for the Southern District of Texas (Southern District Court) under the Hague Convention. In January 2013, the Southern District Court issued an order holding that PARB had been wrongfully removed from Mexico and ordered his immediate return. The order awarded attorney's fees and costs to Berezowsky. The Fifth Circuit reversed, holding that because Berezowsky filed this action under the Hague Convention, she had to  demonstrate by a preponderance of the evidence that Mexico was PARB's habitual residence in order to establish her claim that PARB was wrongfully removed, and failed to do so. 

The Fifth Circuit observed that courts use varying approaches to determine a child's habitual residence, each placing different emphasis on the weight given to the parents' intentions.”Larbie, 690 F.3d at 310. Like the majority of circuits, it had “adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence.” This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents' intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. In such cases, the threshold test is whether both parents intended for the child to abandon the [habitual residence] left behind. Absent shared intent, prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion. It affirms the district court's determination that the parents shared an intent to make a particular country their child's habitual residence unless it is implausible in light of the record as a whole. See Larbie, 690 F.3d at 306. It noted that at least one court has found that it is possible for a young child to have no habitual residence when there is no evidence of a shared intention for the child to be settled in any particular location. See Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir.2003).  The mere fact that the parents have consented for the child to move to a new country does not prove that they share the necessary intent to make that new location the child's habitual residence. 

The Fifth Circuit found that Rendon and Berezowsky's relationship ended before PARB's birth, and the record did not indicate that the two parents had ever shared any plans regarding his upbringing or future.  The district court concluded that Rendon and Berezowsky intended to make Mexico PARB's habitual residence. The district court devoted only one paragraph to the habitual residence analysis, and made the following statements in support of its conclusion that Mexico was PARB's habitual residence:





“Although [PARB] was born in the United States, the facts established that the parents intended to make Mexico [PARB's] habitual residence. Specifically, [Berezowsky] and [Rendon] are both Mexican nationals, they met while residing in Mexico, they are not citizens of the United States, do not own real property in the country, and do not have immigration status that allows them to permanently reside here. Moreover, [Rendon] moved [PARB] to Mexico pursuant to a Texas court order that designated Mexico as [PARB's] place of residence. In the Texas [O]rder, both parents listed Mexico as their place of residence. [Rendon] admitted, and the evidence establishes, that he represented to the Mexican courts that his residence was Mexico. In other words, the evidence establishes that neither parent has meaningful or deep-rooted ties to the United States. Moreover, [PARB] resided in Mexico for approximately thirteen months and was attending school there before [Rendon] removed him to the United States. Therefore, based on these undisputed facts, the Court concludes that Mexico was [PARB's] habitual residence.”






Only the first line of this paragraph references parental intent. The Fifth Circuit found that in reaching this conclusion, it appeared that the district court misunderstood what is required to form a shared parental intent for purposes of the habitual residence determination. A shared parental intent requires that the parents actually share or jointly develop the intention. In other words, the parents must reach some sort of meeting of the minds regarding their child's habitual residence, so that they are making the decision together. Here, the district court did not find that the parents reached an agreement to make Mexico PARB's habitual residence. Instead, the district court focused on the fact that “neither parent has meaningful or deep-rooted ties to the United States.”In doing so, the district court ignored the primary consideration in the habitual residence determination: shared parental intent. Even accepting all of the facts cited by the district court as true, those facts could not  support a finding of shared parental intent as understood for purposes of the Hague Convention. In the district court's brief analysis, the court never found that Rendon and Berezowsky reached an agreement or meeting of the minds regarding PARB's future. Likewise, the district court did not make a finding that Berezowsky and Rendon intended to abandon Texas as PARB's habitual residence. Nor did the record support a determination that the parents formed a shared intent to make Mexico PARB's habitual residence. Berezowsky did not even argue that she and Rendon reached an agreement on this issue. Instead, she tried to establish that both she and Rendon separately formed the intent to change PARB's habitual residence, and then argued that this could serve as the basis for a shared parental intent. The Court disagreed and held that Berezowsky failed to meet her burden to establish that she and Rendon shared an intent to change PARB's habitual residence. 



In an effort to defeat the 410th District Court of Texas's contrary determination, Berezowsky conceded that Texas was originally PARB's habitual residence, but argued that Mexico has supplanted Texas as PARB's current habitual residence. Berezowsky asserted that the Texas Order, which limited PARB's primary residence to one of three areas in Mexico, established Mexico as PARB's new place of habitual residence. The Fifth Circuit rejected her argument finding that Berezowsky mistakenly conflated that idea of a primary residence with a habitual residence.  Berezowsky offered no support for the proposition that the two terms are interchangeable. The Texas Family Code does not define “primary residence” and the court was not aware of any cases that interpret it in a way that would suggest that the term means “habitual residence” under the Hague Convention. As a result, the fact that the Texas Order designated Mexico as PARB's primary residence was insufficient to prove that Mexico also became his habitual residence. Moreover, Berezowsky had not demonstrated that the Texas Order evinced the necessary shared parental intent to establish a habitual residence under the Hague Convention. The mere fact that the Texas Order designated Mexico as PARB's primary residence was insufficient to demonstrate a shared parental intent for Mexico to become his habitual residence. Even assuming arguendo that the separate, uncoordinated intentions of two parents could form the necessary shared intent to change a child's habitual residence, Berezowsky did not meet her burden in proving that each of the parents here had such an intent. Berezowsky did not demonstrate that she intended to make Mexico PARB's habitual residence. Although she now asserted that she intended to abandon Texas, where there is a dispute regarding a child's habitual residence, ‘the representations of the parties cannot be accepted at face value, and courts must determine habitual residence from all available evidence. It  examined the evidence presented by Berezowsky, and concluded that she had not demonstrated that she had such an intent.Likewise, Rendon's decision to remain in Mexico during the ensuing months while he battled with Berezowsky over PARB's custody did not indicate a shared intent to raise PARB there. And the Texas Order designating Mexico as PARB's primary residence did  not establish Rendon's settled intent to raise PARB in Mexico. This was especially true in light of the fact that Rendon requested and received a revised order lifting this geographic restriction just four months after receiving the Texas Order. By that time, Rendon was no longer in possession of PARB, and was not in a position to determine where PARB would live. Just weeks after Rendon regained possession of his son, he moved back to Texas. These were not the actions of a man with a settled intention for his son to habitually reside in Mexico. 
The Fifth Circuit pointed out that the District Court made much of the fact that both Berezowsky and Rendon were Mexican nationals, with no immigration status that allowed them to permanently reside in the United States. While these facts might indicate that Texas was not PARB's habitual residence, they do not prove that the parents established Mexico as the child's habitual residence. Given the constant cross-border battle over his custody, it was possible that PARB had no habitual residence. See Delvoye, 329 F.3d at 334. While it is true that both parents listed locations in Mexico as their residences on the Texas Order, the record also showed that neither parent was living in Mexico at the time that they made these representations to the 410th District Court of Texas. It did  not appear that the decision for PARB to reside in either Texas or Mexico was connected to a shared intention to settle their son in that place; rather, the geographic decisions seemed wholly dependent on where the parents happened to be fighting their court battles at the time, and where each parent thought they could gain an advantage. Given the constant disagreement and multiple cross-border moves in the span of a few years, Berezowsky did not meet her burden in proving that she and Rendon shared an intent or settled purpose regarding their child's habitual residence. It did not  appear that Berezowsky and Rendon had shared any intention or settled purpose regarding their child since his birth. The district court's determination of habitual residence in this case appeared to have relied upon an understanding of that term that gave insufficient weight to the importance of shared parental intent under the Convention.”Mozes, 239 F.3d at 1084 .11