Monday, December 28, 2015
Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) [Mexico][Habitual Residence]
In Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) Daniel Scott Woodman appealed the district court's order granting Elizabeth Fuentes-Rangel's petition for return of their then-5-year-old child, NRW, to Mexico. On appeal Woodman argued that the district court erred as a matter of law by determining NRW's habitual residence based on the facts and circumstances immediately prior to Woodman's retention. According to Woodman, the determination of habitual residence in the prima facie case for the return of a minor child under the Convention and ICARA is made based on the facts and circumstances at the time of the hearing or trial. The Eleventh Circuit held that Woodman's interpretation of the law was incorrect. To establish a prima facie case for return of a child, the petitioner must establish by a preponderance of the evidence the child has been "wrongfully removed or retained within the meaning of the Convention."22 U.S.C. s 9003(e)(1)(A). Article 3 of the Convention, in turn, provides a retention is "wrongful" if, among other things, "it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention." Thus, a threshold question in deciding a case under the Convention is, what was the child's habitual residence "immediately before the removal or retention."?. The district court's interpretation of the law was correct.