In Moura v Cunha, --- F.Supp.3d ----, 2014 WL 7251039 (D.Mass.) the opinion addressed two different cases under the Hague Convention. In both cases, for different reasons, the Court ordered the return of the children to their country of residence.
In Moura v Cunha, the mother allowed a friend, Cunha, allegedly, the child's godmother, to bring the child, Luana, from Brazil, her country of residence, to the United States. After the child's authorization to travel had expired, the purported godmother refused to take the child back to Brazil, despite the mother's attempts to have her back. The mother decided to pursue the return of the child to Brazil under the Hague Convention. The parties agreed that Luana's habitual residence was Brazil and that her retention was illegal after the authorization to travel expired in October 2012. Therefore, the threshold inquiry was met by Moura, and the presumption of return applied. During trial, Cunha asserted a mix of two exceptions. While the core of Cunha's contention seemed to be that the return to Brazil would place Luana in grave risk, Cunha also attempted to establish that Luana was well-settled in the United States. According to Cunha, Luana's older siblings were aggressive towards her, often screaming at her. Cunha also testified that Luana's development in Brazil was hindered by the complete lack of care by those surrounding her. Cunha affirmed that she witnessed Luana not being properly fed, and that she saw that Moura's refrigerator was frequently empty because Moura did not have money to buy food-or even water. Cunha clarified that Luana was receiving psychological support and was enrolled in an individualized education program. Cunha mentioned that Luana was well-settled in this country, getting along well with the people surrounding her. The Court held that even assuming that Cunha's rendition of the facts was precise and truthful, they were not sufficient to overcome the presumption of return. The grave risk exception demands clear and convincing evidence. The fact that Luana's siblings were aggressive toward her did does not lead to a conclusion of grave risk. As expressed by Cunha, the aggression shown Luana by her brothers strikes the Court as more akin to typical sibling disputes than to something more deeply troubling that might counsel more strongly in favor of return. Regarding the health risk, there was not enough evidence that Luana's return to Brazil would endanger her. As the Second Circuit explained in Blondin, the fact that the return might cause hardship or even eliminate certain educational or economic opportunities do not constitute a grave risk of harm under the Hague Convention. As to the well-settled exception the first prong of the exception applied in this case. The petition was filed on November 8, 2013, more than one year after October 20, 2012, when Cunha's authorization to travel with Luana had expired, Cunha failed on the exception's second prong, by not proving that Luana was well-settled in the United States within the meaning of the Convention. Nothing less than substantial evidence of the child's significant connections to the new country will suffice to meet the respondent's burden of proof. Here, there was no evidence whatsoever regarding Luana's social networks and relationships. The Court could not find that Luana was well-settled here.
In Gallagher v. Gallagher the mother, Mary Gallagher, brought her children from Ireland to the United States and failed to return to Ireland on the round trip tickets' return date. The father, Brendan, then pursued the return of the children to Ireland under the Hague Convention. During trial, Mary all but conceded that Ireland was the country of habitual residence, focusing instead in the argument that the children's retention in the United States was not illegal because Brendan consented to it. According to Mary, she and the children came to this country "with the written blessing and consent of [Brendan] including a job recommendation." The district court found that Mary and Brendan's relationship soured around 2009, coinciding with the economic crisis in Ireland. At that time, the family came to the United States with the intent of starting a life here. Although Brendan found sporadic work, he and Mary returned to Ireland in December 2009 after deciding that this work was not sufficient to support the family. The relationship between Mary and Brendan worsened over time and, by February of 2012, the two were no longer intimate and lived in separate parts of the family's house. The Court found that, at some point Mary made an entry in her journal setting forth her goal of getting divorced and moving with the children in May or June (though the Court did not explicitly note which year Mary was referring to) to the United States, whereupon she planned to remarry Steve. In order to accomplish that plan, Mary broached the goal of visiting her sister, who lived in Massachusetts, to see her newborn baby. Mary and Brendan discussed her coming to the United States at least for a visit. Although Mary testified that she made it clear to Brendan that she was moving to the United States, the Court did not so find. The Court found that to any objective observer it would have been clear that she thought that the marital relationship was at an end. Brendan had other plans, and not only wanted the relationship to continue, but also wanted to have his children in close proximity to himself. Brendan agreed to execute a document drafted by Mary, with the purpose of allowing her to seek emergency medical care for the children while in the United States. This document said the authorization's scope was "traveling/moving to United States of America." At the same time, Mary acquired round-trip airline tickets, with the return set for August 19, 2013. The Court found that Mary explained to Brendan that she was going to actively look for work in the United States and that Brendan provided her a letter of recommendation.. It thus inferred that Brendan or any reasonable person would have understood that she was going to the United States, perhaps on a visit, but if she had obtained work it was her intention to stay there. It further found that his desire to be close to his children led him to ask Mary to see about his immigration status so that he could return to the United States. He had, in these earlier years, been in possession of a green card, but so much time had passed since last he was in the United States that it had lapsed. And they had agreed that she would go to the Irish Pastoral Center in Boston to see if they couldn't get advice about her, as she was an American citizen sponsoring him in the United States. The Court did not credit her testimony that she made it clear that she was never coming back, that there was no hope for them to reconcile. It found that Brendan agreed to their travel to the United States for a visit and that he, fearing that she might not come back, was prepared to move to the United States. She and the children left for the United States on May 19th. Within a week, by May 28th, Mary had enrolled the school-aged children in schools on the Cape and had indicated that only she was to have any notice of that school enrollment and other school matters, in other words she excluded Brendan from knowing that the children had been enrolled. The Court also found that by July 11 Mary had found work as an administrative assistant and that her salary, together with social welfare money, would suffice for the maintenance of the children and herself. On that same day, Mary met with an attorney. After Mary explained to him that she and Brendan were deeply estranged, the attorney "advised her that it would not make sense for her to seek to sponsor [Brendan] on a visa, as they were not a marital unit, [and] were not in any way planning to live together." Afterwards, Mary informed Brendan that she was going to stay in the United States with the children, which led him to become "extremely upset." The Court found that Brendan "went to the airport hoping against hope that the children would return on the August 19 flight, but they did not.
Upon this set of facts, the Court concluded that the children's habitual
residence was Ireland and that the children were not wrongfully removed, because
Brendan gave consent to their travel to the United States for the purpose of this
visit up to August 19th. The Court observed, however, that the inquiry does not end there, and went on to analyze whether the children were "wrongfully retained in the United States . Relying on the First Circuit's decision in Nicolson, and also on case law from other Circuits, the Court concluded that Mary did not meet her burden of proving Brendan's consent, and that accordingly the children's retention was wrongful. It noted that the First Circuit has observed that consent is a fact-intensive inquiry "that focuses on [the petitioner]'s intent prior to the child's retention," and which "may be evinced by the petitioner's statements or conduct, which can be rather informal." Nicolson, 605 F.3d at 105. The district court concluded that this case fell closer to the disputes where consent was not present, such as the First Circuit precedent in Nicolson. The Court found particularly compelling the notion that Brendan may have consented to the children moving to the United States so long as he would also be able to join them. It ultimately became clear, however, that his joining the family would not be possible, especially considering that Mary would not sponsor a visa for him because their marriage had fallen apart. As a result, and taking into consideration that Brendan's consent was limited to that specific set of circumstances (i.e. his being able to join the children in the United States), the Court concluded that Mary had not carried her burden of proof for the consent exception. He consented to their visiting in the United States. His consent went so far as their remaining in the United States if he could be in the United States with them. But it did not find, by a fair preponderance of the evidence, that he ever consented to the situation that had arisen, that the children are here in the United States, but given the immigration laws of the United States, he could not be here with them.