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Thursday, September 14, 2017

Benitez v Hernandez, 2017 WL 1404317 (D.NJ, 2017)[Ecuador] [Consent] [Petition denied]

          In Benitez v Hernandez, 2017 WL 1404317 (D. NJ, 2017) J.G.A. Guillermo Albornoz Benitez (“Guillermo”) brought a proceeding against his wife, Kristhel Angelica Diaz Hernandez (“Kristhel”), for the return of their children to Ecuador. Their daughter, “T.A.A.,” was born in 2006, and was 11 years old; their son, “J.G.A.,” was born in 2008 and was 9 years old. Mr. Albornoz alleged 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 district court denied the petition.

          The district court accepted as true the evidence that Albornoz and Diaz agreed in 2014 that the sojourn in Ecuador was to be temporary. It accepted the evidence that Diaz’s June 2015 return to the United States with the children was not wrongful, but agreed-to. The picture that emerged was that 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 appeared 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 seemed 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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