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Thursday, October 20, 2016

Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016)[Guatemala] [Habitual Residence of Infant] [Petition granted]

          In Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016) the District Court granted the Petition of  Maria Alejandra Reyes Ovalle’s Petition for the return of E.L. to Guatemala with his mother. Petitioner was a successful Guatemalan entrepreneur who owned a home and auto mechanic shop in Mixco, Guatemala. Respondent was a divorced United States citizen originally from Guatemala, who owned businesses in the United States and a shop in Guatemala, which was managed by Petitioner’s mother’s half-sister. He was a resident of Hollywood, Florida. In March, 2015, Respondent traveled to Guatemala for eight days to accompany Petitioner to her friend’s wedding. Petitioner became pregnant during this trip. In June, 2015 Petitioner traveled to the United States to visit with Respondent and returned to Guatemala on July 9, 2015.  In mid-September, Petitioner was seven months pregnant. Petitioner decided to return to Florida to attempt to make the relationship work. Petitioner agreed to give birth in Florida. Petitioner travelled back to Florida on October 4, 2015, and  accepted an engagement ring but never wore the ring. Petitioner who was in the United States on her tourist visa remained in Florida until the end of February, 2016. Petitioner did not close any of her bank accounts in Guatemala, construction continued on her investment property, and she continued to earn income from her business there, with her mother’s assistance in running the daily operations. The parties’ son, E.L., was born on December 17, 2015. Respondent and Petitioner returned to Guatemala on February 26, 2016. On March 1, 2016, Petitioner obtained “Security Measures,” the equivalent of a restraining order, to prevent Respondent from removing E.L. from Guatemala but did not inform Respondent of the Security Measures, even though she told him, that she would not be returning to the United States because she was afraid of losing her son. Petitioner stayed in Guatemala with E.L. and Respondent returned to the United States on March 4, 2016. On March 6, 2016, before he learned of the existence of the Security Measures, Respondent initiated custody proceedings in Florida, and obtained an Order to Pick-Up Minor Child (the “Pick-Up Order”). Respondent, did not tell Petitioner that he had initiated proceedings, or that he had obtained the Pick-up Order. Respondent filed a response in opposition to the Security Measures on March 11, 2016. Between March and July, 2016, E.L. lived with the Petitioner and her parents. Respondent periodically sent money to Guatemala for the baby upon Petitioner’s request. Respondent traveled three times to Guatemala, from April 1-3, May 6-8, and May 29-June 1. During these visits, Respondent visited Petitioner and E.L. at Petitioner’s parents’ house. Respondent did not inform Petitioner about the Pick-Up Order or the scheduled hearing in Florida. Nor did the Respondent seek relief from the Guatemalan Court despite the filing of his response to the Security Measures.  Respondent arrived in Guatemala on July 15, 2016 for the childs baptism. The following day, Respondent asked Petitioner to accompany him to drop off an invitation to the baptism. Petitioner, Respondent, and E.L. travelled together in her car to deliver the invitation. At the time, E.L. was asleep in Respondent’s arms. Rather than wake him, Respondent asked Petitioner to take the invitation to the front door. When she did, he got out of the car, placed E.L. in his car seat, and drove off, leaving Petitioner behind. He then traveled by bus with E.L. through Mexico. Five days later, when Respondent and E.L. arrived in the United States, Respondent advised Petitioner that E.L. was with him and that the baby was fine.

The district court observed that to determine habitual residence in the case of an infant,, the Court looks at the parents’ shared intent or settled purpose regarding their child’s residence. Where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem. Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). However, where there is no marital home and an unsettled relationship between the parents, as in this case, the determination of a settled intent becomes more problematic. Furthermore, where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence.  The Court noted that the facts were similar to those in Delvoye, supra, and after examining the facts decided that there was no shared intent to reside in either Florida or Guatemala. 
The district court  concluded that E.L. became habitually resident in Guatemala prior to the time of his removal by Respondent to the United States finding Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) to be instructive. It observed that upon Petitioner’s informing Respondent that she and E.L. would remain in Guatemala, Respondent voluntarily returned to the United States on his planned departure date. Even though Respondent immediately filed a custody proceeding upon his return to the United States, the Court, like the Seventh Circuit in Kijowska, found his efforts were of little relevance. If Respondent believed that Petitioner’s decision to keep E.L. in Guatemala was wrongful, the proper legal remedy was to file his own petition under the Convention, which he did not do. Instead, he returned to the United States and engaged in exactly the type of behavior the Convention is designed to prevent, by filing a custody proceeding in a jurisdiction where he admittedly knew the law would be more favorable to him. The court indicated that the  failure to file a Convention petition in and of itself may have been sufficient to have enabled E.L. to establish habitual residence in Guatemala. Further factors weigh in favor of the Court’s determination. Petitioner and Respondent continued to communicate between March and July of 2016, and upon Petitioner’s request, Respondent continued to send money to Guatemala for the baby multiple times. During these communications, Respondent expressed that he missed his son and Petitioner, how much he loved them both and his belief that their relationship could work, and entreated her to return; at the same time that Petitioner made it clear that she did not share the same feelings. Even so, Respondent returned to Guatemala three times between March and July, visiting with E.L. and Petitioner each time. At no time, during any of these visits did Respondent inform Petitioner that he had sought relief from the Florida court regarding custody or that he was attempting to enforce any rights Respondent believed he had been granted by a Florida court. During this period, Respondent was aware that E.L. was living in the same house with Petitioner, his grandparents and uncle, with whom he was bonding. Petitioner was still breastfeeding the child, the child was regularly seen by a pediatrician and attended church with Petitioner and her family. Respondent also did not resist or oppose Petitioner’s plans to baptize E.L. in Guatemala. By the time Respondent abducted E.L. in July, the baby had been living for four months in Guatemala with Petitioner and her family. The Court found hat E.L. did not have a habitual residence until one was established with Petitioner in Guatemala.