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Tuesday, May 9, 2017

Cartes v. Phillips, 2017 WL 879524 (S.D. Texas, 2017)[Paraguay] Habitual Residence]

In Cartes v. Phillips, 2017 WL 879524 (S.D. Texas, 2017) the petitioner, Sebastian C. Cartes, initiated an action seeking the return of his three year old daughter, O.C.P., asserting that on or about October 25, 2016, Lisa Ellen Phillips, her mother (“respondent”), wrongfully removed her from Paraguay and brought her to Texas. The district court granted the petition.

The petitioner and respondent were United States citizens who met in 2012 at a drug rehabilitation facility, where both were receiving treatment for drug abuse. 
They married on February 16, 2013, in California. On September 23, 2013, the respondent gave birth to O.C.P.,  in California. Respondent had another child, J.P.D., a 10 year old from a prior relationship, who resided with her parents in Houston. The petitioner executed a two-year lease at a Houston condominium in October 2013, with his mother agreeing to cover the monthly rental payments for the duration of the lease term. In September 2014, the respondent signed a two-year lease on an apartment located at 2207 Bancroft Houston, Texas, with monthly rental payments to be paid by the petitioner’s mother. The petitioner continued to reside at the Beverly Hills Houston apartment until his admittance in October 2014 into a 90–day drug rehabilitation facility in Austin, Texas, where he remained until January 2015. In mid-November 2014, the respondent and O.C.P. visited Asunción, Paraguay, staying at the petitioner’s mother’s home and returning to Houston in early January 2015. In February 2015, after the petitioner was released from the rehabilitation facility, the parties, together with O.C.P., traveled to Asunción, Paraguay to visit the petitioner’s family. While there, the parties resided at the petitioner’s mother’s house. It was undisputed that the petitioner intended to move to Paraguay, where he grew up, as soon as he completed rehabilitation. He testified, and the Court found, that his intentions were to stabilize his life, specifically his marriage, and start supporting his family. The petitioner, respondent and O.C.P remained in Paraguay from around February 14, 2015, through August 25, 2015, save for three exceptions: (1) From March 20—April 10, the respondent and O.C.P. traveled to California and Texas; (2) from June 24—July 5, they traveled again to Texas; and (3) from August 25—October 17, the parties traveled to Florida and Texas for two months. During her stay in Paraguay, the respondent worked for a short period in the family’s cattle business. The respondent and O.C.P. lived in the petitioner’s mother’s house during their stay. Also toward the end of their stay, the petitioner’s mother offered to construct a residence on her compound so that the petitioner and respondent, and particularly O.C.P., would have separate living quarters. Both the petitioner and respondent, to some extent, participated in finalizing the plans for a separate residence on the petitioner’s mother’s compound. When the respondent returned to Paraguay on October 18, 2015, she and O.C.P. remained in Paraguay until October 24, 2016.

The Court found that prior to the respondent’s return to Paraguay in October 2015, the petitioner and respondent traveled to Houston. During this visit, the petitioner moved respondent’s property out of the parties’ storage unit into a smaller unit. At that time, little or nothing in the respondent’s Bancroft apartment was moved. Afterward, the petitioner returned to Paraguay with most of his possessions. On October 18, the respondent and O.C.P. returned to Paraguay. Though residing in Paraguay, the respondent maintained her lease on the Bancroft apartment in Houston. During this time, the petitioner’s mother rendered monthly rental payments on the Bancroft lease, provided the respondent with a credit card for all household and food purchases and other necessities, paid for the parties’ medical insurance premiums, including reimbursing the respondent’s mother for the cost of coverage for O.C.P.’s COBRA policy maintained by the respondent’s mother’s Texas employer, and completed building the separate residence on her compound to house the parties and O.C.P. While staying in Paraguay, the respondent traveled, mostly unaccompanied, to Uruguay, Florida, Houston, Miami and Ohio, with all expenses paid for by the petitioner’s mother. During her trips to Uruguay the respondent mainly traveled alone and remained away from O.C.P. for several weeks at a time. In December 20, 2015, O.C.P. was baptized in Asunción, Paraguay. Both parties were present for and supportive of her baptism. In February 2016, O.C.P. was enrolled in and began attending a pre-kindergarten/daycare program at Maria’s Pre–School in Paraguay. She regularly attended school until her removal from Paraguay in October 2016. Given the length of her extended stay in Paraguay, O.C.P. received medical care for any illnesses from Dr. Jorge Lopez–Benitez, a local pediatrician.

On or about October 18, 2016, the respondent revealed to the petitioner’s mother that she was pregnant with a child by someone other than the petitioner—a boyfriend she purportedly met in Buenos Aires. Nevertheless, she sought the assistance of the petitioner’s mother to direct her to a physician to confirm her pregnancy. Sometime earlier, around September 20, 2016, the respondent had informed her mother of her pregnancy. With a September 30, 2016 lease-end date for the Bancroft apartment she maintained, the respondent’s father rented a storage unit in Houston to move and store her remaining belongings from the Bancroft apartment. On October 24, 2016, the respondent attempted to leave Paraguay without proper clearance documentation for O.C.P. On October 25, 2016, the petitioner, at the request of his mother, traveled to the airport to execute a document stating his commitment to show the child’s missing diplomatic passport to immigration officials in Paraguay upon his mother’s return to Paraguay, permitting the respondent and O.C.P. to travel Houston to visit her family. Except for a visit to Houston for about two weeks in January 2016, O.C.P. spent the large majority of her time, during the relevant period, in Asunción, Paraguay.

The testimony of the petitioner, and his mother, supported a finding that the respondent followed the petitioner to Paraguay in an attempt to repair and/or reestablish the parties’ marriage and family. The Court found that on critical facts, the testimony of the respondent was unpersuasive and unreliable. This finding was based on the respondent’s courtroom behavior, i.e., the manner of her testimony, the conflicts in her testimony, and her actions during the disputed periods.

The Court found that the parties’ last shared intention was for O.C.P. to habitually reside in Paraguay. The respondent was not involuntarily coerced to remain in Paraguay during the relevant period. The evidence established that in October 2015, O.C.P., traveled with the respondent on a one-way ticket from Houston, Texas to Paraguay to live with the petitioner and his family for nearly a year, while traveling intermittently. The respondent was not coerced to involuntarily remain in Paraguay or to change O.C.P.’s habitual residence to Paraguay. O.C.P. quickly acclimated to Paraguay. While in Paraguay, for example, she: was baptized into the Catholic faith by the petitioner’s family’s priest; was enrolled in and began attending a pre-kindergarten/daycare program at Maria’s Pre–School; received necessary medical care from a local pediatrician there; and established relationships with the petitioner’s family, including participating in various family activities. Although the petitioner and respondent may have harbored very distinct views of Paraguay, both, nevertheless, agreed to move to that country and live there with O.C.P. and proceeded as parents determined to make a home for themselves and their minor child—they assisted in establishing a separate living quarters on the petitioner’s mother’s compound, they worked for the family’s cattle business, arranged for O.C.P. to receive necessary medical care from a Paraguayan pediatrician and participated in consultations with him, and permitted O.C.P. to be enrolled in pre-school for a period of, at the very least, 8 months. Further, the stability of the residence in Paraguay, combined with O.C.P.’s regular attendance in school, the respondent and petitioner’s employment status and the petitioner’s mother’s level of involvement with the child all weighed in favor of the Court finding O.C.P. “settled” in Paraguay. The fact that the respondent never intended to remain in Paraguay permanently did not alter the parties’ settled purpose or the Court’s finding.

The Court found that petitioner had rights of custody under Paraguayan law, including rights relating to the care of O.C.P. as well as the right to determine her place of residence. The Code of Childhood and Adolescent Rights of Paraguay grants custody rights to both mothers and fathers.  The petitioner possessed rights of custody that were breached at the time of O.C.P.’s wrongful removal, and he was exercising those rights at the time of the removal. The evidence did  not suggest that, at or near the time of O.C.P.’s removal, the petitioner consented to or took any subsequent action to acquiesce in O.C.P.’s habitual residence being changed from Paraguay to the United States. By assisting the respondent at the airport at his mother’s insistence, the petitioner did not waive his right to complain in the event that the respondent refused to return to Paraguay with O.C.P. The petitioner’s pursuit of the respondent and utilization of the remedies available to him under the Convention and through local law enforcement to secure O.C.P.’s prompt return to Paraguay further undermined the respondent’s consent defense.

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