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Friday, September 16, 2016

Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016)[Mexico] [Habitual Residence][Petition granted]

In Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016) the district court granted the petition of  Javier Flores-Aldape for the return of his child, C.F. to Mexico. The mother, Fatin Shawki Kamash, was a US resident and naturalized citizen. Javier was a Mexican citizen. In February 2011, Javier found a job in Mexico as an aviation engineer. He bought a house in Mexico. Javier and Fatin married in November 2012 in Michigan. The next month, Fatin moved to Querétaro, Mexico on a visitor’s visa. She did not have a job in Mexico. Fatin learned she was pregnant in July 2013. The next month, she returned to the United States in anticipation of an immigration interview scheduled for September 2013.  C.F. was born in Michigan on March 30, 2014. Fatin and C.F. remained in Michigan for four months. In late July 2014, Fatin and C.F. flew to Mexico on round-trip tickets, with a return date in April. Fatin, Javier, and C.F. lived together in the family’s home in Querétaro, and C.F. was baptized in Mexico in August 2014. Later that month, Javier lost his job with General Electric, but the family remained in Mexico, living off Javier’s savings and receiving additional financial support from his parents. Given her young age, C.F. was not enrolled in daycare or any extracurricular activities and had limited interaction with the community beyond her own family. Fatin obtained a Mexican permanent resident card and opened a bank account in her name in Querétaro.  In the spring of 2015, the family celebrated C.F.’s first birthday. Fatin applied and was accepted to the pharmacy program at The University of Findlay in Ohio for the fall 2015 semester. Javier and Fatin’s relationship deteriorated, and they discussed the possibility of divorce. Fatin and C.F. left for Michigan on May 10, 2015. Javier drove them to the airport, and Fatin and Javier parted on good terms. Fatin and C.F. left their winter clothes and many of their other belongings, including C.F.’s toys and crib, in Mexico. Upon her arrival in Michigan, Fatin resumed her part-time tutoring work at Oakland Community College and enrolled C.F. in daycare. Fatin also applied for and received WIC and child care assistance benefits in Michigan. During a phone call in the first week of August, Fatin informed Javier that she and C.F. would not be returning to Querétaro. Javier claimed they agreed the visit to Michigan would last only three months, corresponding with the summer session at Oakland Community College, while Fatin maintained it was indefinite, and she never intended to go back to Mexico. 

On October 7, 2015, Javier filed the Hague Petition. The Court credited Fatin’s testimony that she and Javier desired to eventually create a long-term home in the United States. The Court found the parties did not share a present intention to begin that process with Fatin and C.F.’s May 2015 trip to Michigan. In a June 2015 e-mail Fatin confirmed the trip was meant to be limited in duration. The district court found there was no wrongful removal. Javier consented to C.F. traveling to Michigan with Fatin in May 2015. It became clear Fatin and C.F. were not returning to Mexico in early August 2015. August 5, 2015 was the date of C.F.’s retention. The Court observed that the Sixth Circuit has held “a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” Robert, 507 F.3d at 989 (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). The Sixth Circuit has also held this inquiry “must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich I, 983 F.2d at 1401. A person “can have only one habitual residence,” and “a change in geography and the passage of time” are required to establish a new habitual residence. The Sixth Circuit has repeatedly rejected the subjective intent of the parents as an additional factor in determining the child’s habitual residence. Nevertheless, it has also recognized that parental intent may be a valid consideration in cases involving very young children or children with developmental disabilities. The Court agreed parental intent is an appropriate consideration in cases like these. C.F. was just four months old when she left the United States for Mexico, and fourteen months old when she returned to visit family in Michigan. A child of that age is “too young to form any meaningful connection to a country, its inhabitants, and its locations.” Her experience of the world is limited to the environment created by her parents, and she will likely “acclimatize” quickly to any residence in which her family and daily routines are present, regardless of geographic location. The Court found that although C.F. was born in the United States, the circumstances reflected Fatin and Javier’s settled purpose to make their home -- at least for the foreseeable future -- in Mexico. Javier and Fatin established their marital home in Querétaro soon after their wedding, and they jointly participated in renovating the residence according to their preferences. Javier and Fatin also shared an intention to relocate to the United States someday. But to determine C.F.’s habitual residence, the Court had to look to the parents’ last moment of shared intent. The testimony and other evidence reflected that as of August 2015, Javier and Fatin had not jointly decided to abandon their residence in Mexico and move the family to the United States. Absent an agreed plan to abandon their home in Mexico, C.F.’s temporary visit to the United States during the summer of 2015 could not create a new habitual residence.

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