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Saturday, September 9, 2017

Cartes v Phillips, --- F.3d ----, 2017 WL 3141036 (5th Cir, 2017) [Paraguay] [Petition granted] [Habitual residence]

  In Cartes v Phillips, --- F.3d ----, 2017 WL 3141036 (5th Cir, 2017) Sebastian Cartes, the father of a three-year-old girl, O.C.P., petitioned to order Lisa Phillips, O.C.P.’s mother and Cartes’s wife, to return O.C.P. to Paraguay, where she had lived with both Cartes and Phillips from October 2015 to October 2016. 

       Cartes, a U.S. citizen who grew up in Paraguay, and Lisa Phillips, a U.S. citizen, met in California in 2012 and married there in February 2013. Their daughter, O.C.P., was born in California on September 23, 2013. Cartes and Phillips’s marriage was marked by drug use (Cartes’s), sickness (O.C.P.’s), and frequent travel and relocation. Neither Cartes nor Phillips had a job; they relied almost exclusively on Cartes’s mother Sarah, the sister of Paraguay’s current president, to pay their expenses. One month after O.C.P. was born, the family moved to Houston, where Phillips’s parents live. The family lived there for about two years. When Cartes wasn’t in rehab, the family lived together until September 2014, when Phillips and O.C.P. moved out and separately rented an apartment. From June through September 2015, Cartes and Phillips looked for apartments to rent in California. 

          Cartes testified that sometime in the spring of 2015, he moved to Paraguay without Phillips and O.C.P. to live there more permanently. He returned to the United States in early September to collect the rest of his things. At this time, he and Phillips talked about divorce. Cartes consulted with two divorce lawyers and sent Phillips an email telling her that he was leaving for Paraguay without her. At the district court’s bench trial, Cartes admitted that “at that time what was going through [his] mind [wa] s ... going back to Paraguay and ending [their] marriage.” He “wasn’t thinking at the time of ... [his] wife and child—or where they would live.”  A month later, on October 18, 2015, Phillips and O.C.P. flew to Paraguay. According to Cartes, before Phillips and O.C.P. arrived in Paraguay, he and Phillips “had several conversations about the possibility of going to live in Paraguay [for] employment, the financial future of [their] family, [and] the fact that [they] would have assistance with [their] daughter [from] nannies, parents and so on.” According to Phillips, however, she and O.C.P. weren’t moving to Paraguay. Rather, they wanted to be there when Phillips’s sister-in-law gave birth to Phillips’s nephew (O.C.P.’s cousin). Before leaving Houston, Phillips renewed the lease for her apartment. While in Paraguay, Phillips and O.C.P. traveled back to the United States at least twice. O.C.P. continued to have American health insurance and saw doctors in the United States. Similarly, Phillips maintained American health insurance for herself and Cartes. She also kept a car in Houston and paid her car insurance regularly while she was in Paraguay. But Cartes testified that he and Phillips also decided to develop O.C.P.’s connection to Paraguay. For example, the two decided that O.C.P. would attend a Paraguayan preschool, and school records reflected that she regularly attended.

  Cartes also testified that although he and Phillips fought frequently, they “always intend[ed] to reconcile.” According to Cartes, “[Phillips] agreed that she wouldn’t be as happy anywhere else and that she would be fine and happy there and that [Paraguay] was also her home.” Cartes reiterated that Phillips agreed that Paraguay “would always be” both her and O.C.P.’s “home” or “base.” Text messages between Cartes and Phillips illustrated that Phillips described Paraguay as “home.”  On October 23, 2016, Phillips decided to leave Paraguay, and she flew back to Houston with O.C.P. October 24. On December 1, 2016, Cartes filed a petition for O.C.P.’s return to Paraguay. On March 6, 2017, the district court ruled in favor of Cartes, finding that Paraguay was O.C.P.’s habitual residence and that Phillips had wrongfully removed her to the United States. 
The Fifth Circuit affirmed. It rejected Respondents argument that the district court applied the wrong legal standard because the district court did not point to any “explicit meeting of [Cartes’s and Phillips’s] minds to abandon the United States” as O.C.P.’s habitual residence before they traveled to Paraguay in October 2015. Phillips was correct that the “threshold” inquiry under its approach is whether “both parents intended for the child to abandon the habitual residence left behind.” Berezowsky, 765 F.3d at 578. However, that the district court did not legally err. The district court quoted circuit authority recognizing abandonment as the threshold inquiry and analyzed the parties’ positions in light of these references. It also rejected Respondents argument that it nonetheless factually erred by finding that Cartes and Phillips jointly intended to make Paraguay O.C.P.’s habitual residence before Phillips and O.C.P. returned to the United States. The district court’s habitual-residence finding that Cartes and Phillips were “determined to make a home for themselves and their minor child” in Paraguay was not “implausible” and thus not clearly erroneous. See Berezowsky, 765 F.3d at 466 & n.7. The record supported Cartes’s testimony, on which the district court heavily relied, that despite discord, he and Phillips agreed Paraguay would be O.C.P.’s habitual residence. Cartes also testified that during certain periods of reconciliation—specifically June, July, and August of 2016—he told Phillips that he wanted O.C.P. to live in Paraguay permanently and that Phillips agreed Paraguay “would always be” home to both her and O.C.P. See id. at 468 (“[S]hared parental intent requires ... the parents [to] reach some sort of meeting of the minds regarding their child’s habitual residence, so that they are making the decision together.”). Text messages between Cartes and Phillips supported the district court’s decision to credit Cartes’s version of events. 

           The Court observed that parents’ shared intent about their child’s habitual residence does not—and need not—always coincide with the child’s initial change in location. Sometimes, “the family as a unit has manifested a settled purpose to change habitual residence ... when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country.” Mozes v. Mozes, 239 F.3d 1067, 1076-77 (9th Cir. 2001). In other cases, a parent may have “earlier consented to let the child stay abroad for some period of ambiguous duration [, but] circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely.” Accordingly, it could not say that the district court’s finding of habitual residence was implausible in light of the record as a whole.

The Fifth Circuit agreed with Phillips that the district court erred by excluding evidence of emails between Cartes and various real estate agents in California. It noted that its approach to determining a child’s habitual residence is a subjective test requiring district courts to ascertain “parents’ intent or settled purpose” about their child’s home. With typical Convention cases between estranged spouses, it has encouraged courts to consider not only the parties’ testimony, but also, more generally, “all available evidence.” Because the threshold for relevance is “low,” Hicks-Fields v. Harris Cty., 860 F.3d 803, 809 (5th Cir. 2017), documentary evidence tending to corroborate testimony about the parties’ shared intent is likely to be relevant in most Convention cases. But any error in this case was harmless. 

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