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Thursday, September 14, 2017

Valero v De Nevi, 2017 WL 3917161 (S.D. Florida, 2017)[Canada][Habitual Residence] [Petition granted]

           In Valero v De Nevi, 2017 WL 3917161 (S.D. Florida, 2017) the father was a Cuban national who had become a resident in Quebec, Canada. The mother was a Cuban national who now sought political asylum in the United States, but previously lived with the father and their son in Quebec, Canada from March 25, 2016 to September 20, 2016 before she removed the child to the United States.

          The district court found that the habitual residence of the child before his removal by the mother in late September 2016 was Quebec, Canada. The mother’s attorney argued that the mother’s habitual residence at the time of the alleged removal was in Cuba. It was undisputed that the mother had a physical residence in Cuba and received medical treatment in Cuba, where both parents and the child were born. But, both parties agreed that Cuba, which is not a signatory to the Hague Convention, was a country that both parents abandoned and a country where neither parent wanted to exercise parental rights. The mother’s counsel argued that since the alleged habitual residence of the child was Cuba at the time of the removal from Canada, then the Court is powerless to rule under the Hague Convention. However, the Court did not reach the issue of the residency in Cuba because neither the mother nor the father exercised custodial rights there. Both parents were Cuban political refugees who abandoned Cuba. The Court concluded that consistent with Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), the child’s habitual residence was Canada and the Court did not decide the hypothetical issue of possible dual habitual residence. The Court also found that the child’s removal by the mother in September 2016 was in breach of the father’s custody rights.  Having found that the child was wrongfully removed by the mother, the Court foud that the mother had not proven by clear and convincing evidence the grave risk exception. The higher number of therapists and medical professionals in Miami when compared to the village of Saint-Guillaeime or the larger town of Drummondville in Quebec is not enough to preclude the prompt return of the child to Quebec. Nor was the payment for or availability of insurance in one province versus another or in one state versus another.

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