Ovalle v. Perez, --- Fed. Appx. ----, 2017 WL 780791 (11th Cir.,2017)[Guatemala ][Habitual residence][Due Process] [Petition granted]

In Ovalle v. Perez, --- Fed. Appx. ----, 2017 WL 780791(11th Cir.,2017) Maria Alejandra Reyes Ovalle (“Reyes”), a Guatemalan citizen, alleged that her child’s father, Noe Manuel Perez, an American citizen, abducted the child and wrongfully retained him in Florida.

Perez, a United States citizen and resident of Florida, met Reyes in Guatemala, and the two began a romantic relationship. In March 2015, Reyes became pregnant with E.L.  In June 2015, Reyes traveled to the United States to stay with Perez. He testified that she was merely testing the waters to see what life in Florida with Perez would be like; Perez testified that it was their mutual intention to raise their child together in Florida. Reyes left the overwhelming bulk of her personal belongings in Guatemala. Reyes returned to Guatemala a little over a month after arriving in Florida. Perez returned to Guatemala in late September 2015 to bring Reyes back to Florida. Reyes testified that Perez  presented her with an engagement ring, which she accepted but never wore. In early October, Perez and Reyes returned to Florida. The great bulk of Reyes’s possessions, including her pets, remained in Guatemala. Reyes received an offer to purchase her business, but she turned it down in part because she was uncertain that her relationship with Perez in Florida would work. Reyes also had a house under construction in Guatemala at the time, and she did not turn off utilities at the house; she continued to pay her utility bills even though she was in Florida. She again entered the United States on a tourist visa. According to Reyes, she never told Perez that she was coming to Florida permanently; rather, she told him that she was merely coming to try Florida again. Perez disagreed, testifying it was his understanding that Reyes was coming to Florida to stay and that they both intended to raise a family in Florida. E.L. was born in Florida in December 2015. In February 2016, when E.L. was first able to travel, Reyes, Perez, and E.L. took a trip to Guatemala. While in Guatemala, Reyes met with an immigration attorney who advised her that because she had spent almost five months in the United States on a tourist visa—and because she had given birth to a child during that period—she risked being denied entry to the United States again. The attorney also advised her that because Perez and E.L. were American citizens, Perez would be able to enter the United States with E.L. Reyes subsequently applied for and obtained “Security Measures”—essentially, a restraining order against Perez—in Guatemala, claiming that she was “a victim of abuse, psychological, economic, moral and mental violence, threats, indignities and the most important he is threatening me that he will take my son [a]way because he has American nationality.” Reyes did not inform Perez about the Security Measures, but did tell him that she and E.L. would not be returning to the United States. Perez returned to Florida and obtained an “Order to Pick-Up Minor Child” from the Broward County Circuit Court. Perez did not inform Reyes about the order. After finding out about the Guatemalan Security Measures, Perez filed a response in opposition to them. In Guatemala, E.L. lived with Reyes and her parents and brother, regularly attended church with them, and regularly saw a pediatrician. On a fourth visit to Guatemala in July 2016—for E.L.’s baptism—Perez devised a scheme to remove E.L. to the United States. Perez drove off with E.L. He then drove back to the United States through Mexico. After arriving, Perez informed Reyes that he was in the United States with E.L., who was safe.

On September 7, 2016, Reyes filed a petition in federal district court requesting relief under the Hague Convention, After the trial, the district court entered an order granting Reyes’s petition and requiring E.L.’s immediate return to his mother. The district court concluded that Reyes and Perez never shared an intent to reside in Florida or Guatemala and that the child’s only habitual residence was in Guatemala with his mother. The district court further found that Perez’s removal of E.L. was in breach of Reyes’s custody rights under Guatemalan law, which rights Reyes was exercising at the time of E.L.’s wrongful removal. Thus, the district court ruled, the Hague Convention required that E.L. be returned to Reyes. The Eleventh Circuit affirmed.

 The  Eleventh Circuit held that the district court did not err in determining that E.L.’s habitual residence was Guatemala. The parties’ testimony was in conflict with regard to Reyes’s intentions when she moved to Florida. The district court resolved the conflict in favor of Reyes—finding that she had no settled intent to raise E.L. in Florida. The district court found that although Perez and Reyes had discussed marriage, they never announced an engagement. Crucial to the court’s finding was the fact that Reyes was in Florida on a tourist visa that only permitted her to stay in the country for six months at a time. Aside from one meeting with an immigration attorney, neither Reyes nor Perez took any steps to change Reyes’s immigration status. In concert with her temporary immigration status, Reyes left virtually all of her possessions—including her pets—in Guatemala, and she made no plans to sell or close her business there. The evidence showed that Reyes only remained in Florida after the birth of E.L. because her midwife advised her to wait to ensure E.L.’s health, and she had to wait for E.L.’s passport to issue. In short, ample evidence—much of it undisputed—supported the district court’s finding that Reyes had no intent to raise E.L. in Florida; the district court’s findings were not clearly erroneous. With respect to the district court’s conclusion that Florida was not E.L.’s habitual residence, Ruiz was on point. There, the court found that the parents had no settled intent to reside in Mexico where the “numerous objective facts” indicated that the mother’s “intent with respect to the move to Mexico was clearly conditional.” Ruiz, 392 F.3d at 1254. Reyes’s behavior here created an equally strong—if not stronger—inference that there was no settled indent to raise E.L. in Florida. The district court also properly found that the parties had no settled intent to raise E.L. in Guatemala. Therefore, the question was whether the district court properly found that E.L. became habitually resident in Guatemala before Perez removed E.L. to Florida. 

The court concluded that it did, persuaded by the district court’s reliance on Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006), which featured a similar fact pattern. Perez voluntarily left Guatemala after he was informed that neither Reyes nor E.L. would return to the United States. Instead of following the procedures outlined by the Hague Convention, Perez initiated a custody proceeding in the United States, received a favorable outcome, and engaged in self-help by returning to Guatemala and abducting E.L.As in Kijowska, Perez’s failure to “pursue his legal remedy” under the Hague Convention weighed in favor of finding that E.L’s habitual residence was in Guatemala.
The district court also properly considered E.L.’s settlement in Guatemala in determining that it was E.L.’s habitual residence. “Where a child is born while his  . . .  mother is temporarily present in a country other than that of her habitual residence it does seem, however, that the child will normally have no habitual residence until living in a country on a footing of some stability.” Delvoye, 329 F.3d at 334.  Here, the district court properly relied on a number of factors in determining that E.L. was living in Guatemala with some stability, including the facts that E.L. was: living in a house with his mother, grandparents, and uncle, with whom he was bonding; regularly seen by a pediatrician in Guatemala; to be baptized in Guatemala; and regularly attending church with Reyes and her family. Moreover, Perez repeatedly sent money to Guatemala to support E.L. and visited the child in Guatemala multiple times prior to the abduction. Were any greater quantum of contacts with a particular location required to establish an initial habitual residence, parents could freely engage in a continuous game of abduction ping pong, given the many months or even years in which they could freely abduct the child before any particular location became the child’s habitual residence. It concluded, as did the district court, that at the time E.L. was abducted, his habitual residence was in Guatemala.

The Eleventh Circuit held that the district court did not err in determining that Reyes had custodial rights over E.L. under Guatemalan law. As the district court explained, Article 252 of the Civil Law Code of Guatemala grants parental power over minor children jointly to a married mother and father, and in any other case to the parent in whose power the child is. Because Reyes and Perez were not married, the question became: in whose power was E.L. at the time he was removed to the United States? Article 261 of the Civil Law Code notes that children shall be in the power of the mother where the mother is unwed, unless both parents agree that the father should have custody. Consequently, the district court properly determined that under Guatemalan law Reyes had custodial rights over E.L. sufficient to render Perez’s removal of E.L. unlawful.

The Eleventh Circuit held that the district court did not violate Perez’s due process rights by giving him only seven days to prepare for an evidentiary hearing. Specifically, neither the Convention nor ICARA, nor  the Due Process Clause of the Fifth Amendment requires that discovery be allowed or that an evidentiary hearing be conducted as a matter of right in cases arising under the Convention. In West, the district court possessed the petition, the respondent’s answer to the petition, and the affidavit of a psychologist (provided by the respondent) who had interviewed the children at issue and noted possible child abuse on part of the petitioner. West, 735 F.3d at 926-27. The psychologist refused to testify at a hearing, so the respondent asked the court to appoint a psychologist to interview the children.  The court declined to do so, found that no evidentiary hearing was necessary, and ordered the respondent to return the children to the petitioner. On appeal, the Tenth Circuit held that the respondent “received a meaningful opportunity to be heard,” which is “all due process requires in the context of a Hague Convention petition.” Here, the district court conducted fact-finding substantially more robust than the district court in West. Instead of relying on written submissions alone, the district court held a four-day evidentiary hearing. At the hearing, Perez was permitted to enter documentary evidence, call witnesses, and cross examine Reyes’s witnesses. Like the respondent in West, Perez “received a meaningful opportunity to be heard,” satisfying his due process rights.