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Friday, January 30, 2015

Mendez v May, 2015 WL 143965 (D. Mass., 2015) [Argentina] [Habitual Residence] [Grave Risk of Harm] [Petition granted]

In Mendez v May, 2015 WL 143965 (D. Mass., 2015) the district court granted  Federico Mendez’s petition for return of  C.F.F.M. to Argentina from Massachusetts.  Mr. Mendez was born and raised in Argentina. He was a citizen of Argentina. Ms. May, the respondent, was  a United States citizen and a permanent resident of Argentina. They settled in Buenos Aires, Argentina in 2006.  C.F.F.M. was born in Buenos Aires on December 3, 2007. The birth certificate listed Ms. May and Mr. Mendez as the child’s parents. Ms. May and Mr. Mendez lived with the child in an apartment on Peru Street from C.F.F.M.’s birth until 2009. The child was a citizen of both Argentina and the United States and held passports from both countries.  On March 12, 2008, Ms. May and Mr. Mendez executed a travel authorization that allowed either parent to travel internationally with the child. This authorization allowed the child to leave the country with only one parent, with the authorization attesting to the consent of the other parent. This travel authorization was open-ended. It was effective until the child turned eighteen.  Ms. May and Mr. Mendez ended their romantic relationship in the first half of 2009. After the relationship ended, Ms. May and the child continued to reside in the Peru Street apartment, while Mr. Mendez resided elsewhere in Buenos Aires.  On July 1, 2009, the parties, after a mediation, reached an agreement on child custody and support issues. The 2009 agreement provided, in part, that the child would reside with Ms. May and that Mr. Mendez would have weekly visitation during which he would pick the child up on Thursday evenings and return him on Sunday evenings. The agreement allowed Ms. May to travel to the United States for up to fifteen days during the Argentine winter and for up to forty-five days during the Argentine summer. The 2009 agreement required Mr. Mendez to grant travel authorizations as necessary to permit Ms. May to travel out of Argentina pursuant to the agreement. The child attended the same school in Argentina from 2010 through the end of the Argentine school year in December 2013. 

In November of 2011, an altercation occurred. The child was present for this altercation. Ms. May testified that, during the argument, Mr. Mendez attempted to push her out of his car while it was moving. Mr. Mendez denied doing this and testified that Ms. May tried to jump out of the moving car with the child.  In February 2011, Mr. Mendez revoked the 2008 travel authorization that allowed the child to leave Argentina with Ms. May.  Thereafter, Mr. Mendez and Ms. May executed trip-specific authorizations for each time Ms. May traveled abroad with the child. In December 2012, Mr. Mendez and Ms. May executed a new agreement regulating their relationship as parents.  Under the 2012 agreement, Ms. May maintained custody of the child.  The 2012 agreement, however, made two reductions in Mr. Mendez’s visitation schedule. The 2012 agreement allowed Ms. May to travel abroad with the child up to forty-five days each year and required Mr. Mendez to grant his consent as needed for these trips on a trip-by-trip basis. In the spring of 2013, Ms. May began to consider leaving Argentina to pursue work in other countries due to the poor economy and decline in tourism in Argentina.  At this time, Ms. May discussed with Mr. Mendez her interest in relocating outside of Argentina with the child.  In an August 13, 2013 Skype conversation, Ms. May and Mr. Mendez discussed relocating, and the parties discussed that Ms. May “just got a job” and was “moving in 3 weeks.”  No agreement was reached at this time. They continued discussing the issue, however, meeting in person at least three times at restaurants in August and September before Ms. May left Argentina in the beginning of September. These meetings culminated in a meeting in the beginning of September at which Mr. Mendez said C.F.F.M. could move to Boston after the end of the Argentinean school year in December. In this meeting, Ms. May and Mr. Mendez also discussed the child spending February, April, and summer vacations (on the American school calendar) with Mr. Mendez.. At this meeting in early September, Ms. May and Mr. Mendez told C.F.F.M. of these plans. Both Mr. Mendez and Ms. May understood at this time that the child could not leave the country without Mr. Mendez’s written permission or a court order.

        After these discussions, Ms. May left Argentina on September 9th or 10th to begin her job in Boston. During the period after Ms. May left Argentina until the end of October, the child resided with Ms. May’s mother, who cared for the child. In an email dated September 30, 2013, Ms. May asked Mr. Mendez if he would “be ok with [the child] flying to the U.S. with me after his birthday (before the holidays)?” Mr. Mendez responded that he “would prefer if you can wait until he [the child] moves to you by the end of the year,” and stated that he “really would like to spend the most amount of time with him [the child] before he moves.”  After exchanging several emails which addressed this issue, Mr. Mendez wrote that he needed to consider different arrangements for the child to travel to the United States, but “[f]or now, what is sure is January the 8th,” indicating a date on which he would allow the child to travel. However, Mr. Mendez did not provide the required authorization despite his statement. In a Skype conversation on October 23, 2013, Mr. Mendez acknowledged his prior statements that the child could relocate to the United States, writing to Ms. May “[you] are still afraid ... [that Mr. Mendez had not decided about relocation]. I have already made my mind ... and comunicated [sic][it] to you on [sic] the restaurant that time.”. The “restaurant” was a reference to the meeting in September when Mr. Mendez stated that the child could relocate to the United States with Ms. May.  In this same conversation, Mr. Mendez also made clear that there were still unresolved issues relating to relocation, telling Ms. May that “we will have to agree on this somehow.”When Ms. May asked him if he would sign a document relating to the child’s relocation, Mr. Mendez responded, “I do not know ... what document [do] you want me to sign?” With these statements and others, Mr. Mendez was using the fact that a signed authorization was required for the child to leave Argentina as leverage in his negotiations with Ms. May. He was also withholding his agreement by not providing the travel authorization.  There were no further cooperative conversations towards resolving the issues that divided the parties after the October 23, 2013 email.

       After October 23, 2013, Mr. Mendez initiated several proceedings. These included numerous criminal proceedings for denial of visitation against Ms. May and Ms. May’s mother. He also filed an emergency civil proceeding to obtain temporary custody of the child while Ms. May was in the United States. These filings contained numerous false statements, including that Ms. May “went to live in the United States of America, without any notice” and “does not give her child any type of support or assistance.” Ms. May returned to Argentina on November 28, 2013, and remained there until December 16, 2013.  In response to the proceeding initiated by Mr. Mendez to obtain temporary custody, he and Ms. May attended a mediation on December 11 or 12, 2013.  At this point, Ms. May initiated a proceeding to obtain authorization to travel abroad for forty-five days pursuant to the 2012 agreement.  On November 28, 2013, due to the various proceedings the parties had initiated, the judge presiding over the parties’ family law matters prohibited the child from leaving Argentina and ordered immigration authorities in Argentina to prevent him from being taken from the country. Ms. May was aware of that order by December. At some point in late December or early January, Ms. May returned to the United States. She returned to Argentina again on February 9, 2014. The civil judge presiding over the parties’ family law matters held a hearing on February 10, 2014 to address Mr. Mendez’s temporary custody proceeding. At this hearing, the presiding judge also addressed Ms. May’s filing to obtain the travel authorization. At the hearing, the judge informed the parties that, if they could not come to agreement, he would make a decision before Ms. May’s scheduled departure from Argentina on February 15, 2014. The parties did meet in a restaurant after the hearing, although they could not reach agreement on the travel authorization or any other matter., Ms. May left Buenos Aires with the child and her mother on February 14, 2014. Ms. May denied having received a decision from the civil judge prior to leaving Buenos Aires on February 14th.   On February 14th, the civil judge released a decision denying Ms. May’s request for travel authorization. The Court found that Ms. May knew of the Argentine court’s Order denying her request for travel authorization before she left Buenos Aires. Ms. May went to Brazil, and then Paraguay and flew out of Asuncion, Paraguay to the United States on February 16, 2014. At the time Ms. May left Argentina, she was aware that she needed a signed writing from Mr. Mendez or a court order to leave the country with the child. She was also aware of the court order of November 28th, barring the child’s exit from the country. Mr. Mendez learned that the child was no longer in Argentina when the child did not show up for his first day of school during the first week of March. Mr. Mendez discovered Ms. May’s work phone number and called Ms. May at her office in Boston. At that time, he confirmed that the child was in Boston. Upon learning that the child had been removed from Argentina, Mr. Mendez, on April 11, 2014, made a filing with the central authority in Argentina to pursue remedies under the Hague Convention. He also filed a criminal complaint for child abduction on March 7, 2014 with the Argentine police. That offense carries a minimum mandatory sentence of five years and a maximum sentence of fifteen years, if convicted. Since February 2014, the child resided in Roslindale, a neighborhood in Boston, and attended public school in Boston.
On July 15, 2014, the Argentine civil judge who presided over Ms. May and Mr. Mendez’s family court proceedings issued an opinion that the child was wrongfully removed from Argentina under the Hague Convention and that the child’s habitual residence at the time of the removal was Argentina. 

It was undisputed that Argentina was the habitual residence of the child between his birth until September 2013. The child was born in Buenos Aires and lived in the city his entire life, initially with both parents and later with his mother, subject to visitation by his father. After September and up to and including the time of removal, Mr. Mendez established Argentina as the habitual residence of the child for at least two reasons. First, changing the child’s habitual residence required both parents to form a shared intent to abandon Argentina and to adopt the United States as the child’s habitual residence. Although the parties came close to forming such a shared intent, they did not actually do so. Mr. Mendez stated his agreement to the child moving to the United States. As a matter of fact, however, he had not agreed, yet, and he had not yet formed the intent to change the child’s habitual residence. Both Ms. May and Mr. Mendez each knew that the child could not move, or even leave Argentina, without a signed writing from Mr. Mendez. The parties’ discussions (orally and in writing) were replete with references to the necessary writing. Until Mr. Mendez signed the necessary authorization to remove the child from Argentina, the agreement, on the present facts, was not complete. Put another way, while Mr. Mendez was saying “yes,” he was not taking the step necessary to give meaning to the statement. He was not taking that last step because he had not formed the intent to actually have the child abandon Argentina as the child’s habitual residence and make the United States the new habitual residence.   Second, even if Mr. Mendez and Ms. May had formed a shared intent for the child to abandon Argentina as his habitual residence and adopt the United States as the child’s habitual residence effective January 8, 2014, in light of the revocation of the agreement before the child left Argentina, the law, in such circumstances, does not recognize a change in the child’s habitual residence. Although the analysis of habitual residence begins with the issue of shared parental intent, Sanchez–Londoño, 752 F.3d at 540, shared intent does not completely resolve the question. The First Circuit has noted “ ‘a child can lose its habitual attachment to a place even without a parent’s consent ... if the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.’”Darin, 746 F.3d at 11–12 (quoting Mozes, 239 F.3d at 1081). The Ninth Circuit, in Mozes v. Mozes, a case cited extensively by the First Circuit, held that “[w]hile the decision to alter a child’s habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone .... it requires an actual ‘change in geography.’ ”Mozes, 239 F.3d at 1078 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir.1993)). No such change occurred here. The parties  cited no case—and the Court was aware of no case—where the First Circuit has found parental intent to be sufficient to change a child’s habitual residence without the child’s presence in the new country prior to removal or retention.

      The district court pointed out that the Supreme Court in Abbott v. Abbott, 560 U.S. 1, 15, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), held that a ne exeat right—the right of a parent to consent before a child is removed from the country—is a right of custody as that term is defined by the Hague Convention. This holding in Abbott disposed of the right of custody issue in this case. Article 264 of the Argentinean Civil Code states that in the case of a child born out of wedlock who is acknowledged by both parents “the express consent of both parents is required for the following acts: ... [to][a]uthorize the child to leave the Republic.” This is so regardless of the vesting of guardianship in one parent. Both parties’ experts testified that, under Argentinean law, a child born out of wedlock who has been acknowledged by his or her father cannot relocate outside of Argentina without the father’s permission or a court order.
 Mr. Mendez possessed the power to prevent the child from permanently residing outside of Argentina, and, therefore, he had the requisite custody rights to establish wrongful removal under the Hague Convention. The district court observed that courts “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.”Friedrich, 78 F.3d at 1065. Mr. Mendez was actively involved in the upbringing of the child, maintaining regular visitation with the child and being involved with his schooling, health, and general well-being. In addition, he participated actively in the discussions in 2013 regarding relocation and consistently and actively asserted his rights in those discussions. No more is needed to establish exercise of custody rights under the Hague Convention.

Ms. May argued that Mr. Mendez agreed to permit the child to relocate in a meeting in the restaurant before Ms. May left for Boston and that consent, once given, may not be revoked. The evidence did establish that Mr. Mendez said in September that the child could relocate in January. But the parties did not reach agreement—Mr. Mendez had neither signed the necessary travel authorization nor taken the child from Argentina to the United States.  Mr. Mendez’s consent was incomplete in the absence of either of those two actions.  Put another way, Mr. Mendez did not actually consent. For these reasons, the Court found that Ms. May had not established by a preponderance of the evidence that Mr. Mendez consented to the removal of the child to relocate to the United States.

         Ms. May argued that returning the child to Argentina presented a grave risk of psychological harm and would place the child in an intolerable situation. She argued that because of the criminal child abduction complaint filed by Mr. Mendez against her in Argentina—which carries a penalty of imprisonment for five to fifteen years—there was a grave risk that she would be separated from the child for an extended period of time. She supported this argument with the testimony of Dr. Scott Andrews, a child psychologist who offered his opinion that severing the child’s relationships with Ms. May, Ms. May’s fiancé, and Ms. May’s mother would expose the child to a grave risk of psychological harm. The court found that Ms. May did not establish that she was unable to return to the country. There was no evidence  that she has been formally charged with a criminal offense related to removing the child from Argentina, as distinct from Mr. Mendez lodging a complaint. Mr. Mendez’s expert provided uncontroverted testimony that, in her many years of experience with Hague Convention proceedings in Argentina, she was unaware of any parent who had been actually prosecuted for kidnapping or child abduction after removing a child from Argentina. 

Ms. May argued that, if returned, the child would be placed in an intolerable situation. She argued that the child will suffer racist treatment if returned to Argentina and testified about several comments and situations occurring in Argentina that displayed racial bigotry or insensitivity, such as schoolmate telling the child that he could not go to a birthday party because he was black and the use of “blackface” in public school plays. The Court held that a small number of unrelated, nonviolent incidents of bigoted speech or behavior—several of which were attributed to small children—does not rise to the level of an intolerable situation, considering that the exceptions to return are to be narrowly construed. Nnothing in the record suggested that these incidents were of such significance to Ms. May that they caused her to remove the child from Argentina for that reason.

          Ms. May argued that an intolerable situation would arise from the media coverage of this case in Argentina. There was testimony that Mr. Mendez petitioned the Argentine government to provide financial assistance in prosecuting his Hague petition. Mr. Mendez testified that his online petition was widely circulated, and, in furtherance of his petition, he gave three interviews to television journalists and three interviews to print journalists. The evidence also suggested social media or internet interest in this case in Argentina. The court held that this evidence failed to establish an intolerable situation. Nothing about the evidence suggested that the public attention would continue after the child’s return or that any such media attention would cause any adverse consequences to the child directly or indirectly. Ms. May herself placed the child in the public eye in a June 2012 article she authored entitled “Zen and the Art of Being Trapped in a Foreign Country,” which appeared in an online magazine and described some of the travails of the parties’ relationship. 

Ms. May argued that, if returned, the child would placed in an intolerable situation due to Mr. Mendez’s prior verbal abuse and harassment of Ms. May. There court found that there were neither allegations of, nor evidence of, verbal or physical abuse of the child by Mr. Mendez. There was some evidence of Mr. Mendez mistreating Ms. May with physical abuse on two occasions and verbal abuse on other occasions, with some of the verbal abuse and one instance of physical abuse occurring in front of the child. The physical abuse alleged occurred twice over the course of seven years, with both incidents occurring more than two years prior to removal. The court noted that at this point, occasions for interaction of the parties in front of the child are limited, and thus the opportunities for harm to come to the child by observing abuse of Ms. May are similarly limited. Ms. May did not establish that return would place the child in an intolerable situation. The Court found that Ms. May has not established by clear and convincing evidence that the child would be exposed to a grave risk of psychological harm or an intolerable situation if returned to Argentina.

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