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Tuesday, May 9, 2017

Benitez v. Hernandez, 2017 WL 1404317, (D. N. J., 2017)[Ecuador][Habitual residence] [Petition Denied.]

In Benitez v. Hernandez, 2017 WL 1404317, (D. N. J., 2017) Guillermo Albornoz Benitez brought a proceeding against his wife, Kristhel Angelica Diaz alleging that on June 18, 2015, Ms. Diaz removed the children from Ecuador without his consent, and was wrongfully retaining them in the United States. The Verified Petition was filed on February 10, 2017. Mr. Albornoz was born in Ecuador and moved to the U.S. in 2003, and has been a U.S. citizen since 2009. Ms. Diaz was born in Venezuela and moved to the U.S. in 2004, and obtained permanent resident status in April 2014.
They lived together for two years in Manhattan. In 2006, they moved to North Bergen, New Jersey. On October 1, 2011, Albornoz and Diaz were married in New York.
Their first child, a daughter, T.A.A., was born in New Jersey in 2006. Their second, a son, J.G.A., was born in New Jersey in 2008. Both are U.S. citizens. They resided in the U.S. from their birth until the family went to Ecuador in July 2014; in Ecuador from July 2014 to June 2015; and again in the U.S. from July 2015 to the present.

In 2013, Albornoz’s father advised him that there were no businesses like his in Ecuador. Albornoz decided to take advantage of the opportunity. He shipped both business equipment and the family’s personal property to Ecuador.
On July 12, 2014, Diaz and the children flew to Ecuador. Albornoz purchased their tickets, which were round-trip. In Ecuador, the family lodged with Albornoz’s brother for about a month. They then moved to the commercial building where Albornoz had started his business. Diaz did not have the necessary papers to work in Ecuador.

The circumstances of the departure of Diaz and the children from Ecuador in June 2015 bear clear indicia of consent. Diaz and the children used the second half of their U.S./Ecuador round-trip air tickets, and Albornoz paid the airline fee for them to do so. Albornoz accompanied Diaz to the children’s school and attended an informal ceremony marking J.G.A.’s departure a few days before the actual end of term.
 Albornoz (apparently accompanied by family members) drove Diaz and the children to the airport. T.A.A. was then 9, and J.G.A. 7 years old. Albornoz telephoned Catalina Sinning, a friend, and arranged for her to pick up Diaz and the children from the airport in New York. He also telephoned his old friend Maria Suarez, and arranged for her to house Diaz and the children in her apartment. There was no doubt that Albornoz knew about, consented to, and indeed facilitated the June 2015 departure of Diaz and the children. The evidence that Albornoz agreed to and cooperated in the June 2015 departure from Ecuador was overwhelming, and his contrary statements raise general credibility concerns. And there is much additional evidence of the couple’s agreement to move back to the U.S. permanently.

The district court found that Albornoz and Diaz agreed in 2014 that the sojourn in Ecuador was to be temporary. Diaz’s June 2015 return to the United States with the children was not wrongful, but agreed-to. Diaz had grown increasingly dissatisfied, and at any rate did not want to live in Ecuador. Albornoz wanted to keep the marriage together, and agreed to return to the U.S. in the hope of salvaging it. It appears that he cooperated fully with the children’s removal from Ecuador, resettlement in the U.S., enrollment in a New Jersey school for the 2015–16 school year, and relocation to their own apartment. It was only later, when the marriage proved unsalvageable, that he began to maintain that moving back to the U.S. had never been his intent. Indeed, it seems that he brought the petition for return of children either concurrently with, or as a response to, Diaz’s filing for divorce.

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