In Moreno v
Zank, --- F.3d ----, 2018 WL 3467919 (6th Cir., 2018) the mother
sought the return of a child to Ecuador.The district court held that the
mother’s original abduction of the child to Ecuador years earlier meant that
Ecuador could not be the child’s habitual residence. The Sixth Circuit held
that reversal and remand was required because the proper remedy for the initial
kidnapping to Ecuador was a Hague Convention petition filed in Ecuador, subject
to applicable limitations and defenses, rather than the self-help remedy of (in
effect) later re-kidnapping back to the United States.
The child, BLZ,
was born in 2006 in Michigan to the then-married couple of Jason Zank, a
citizen of the United States, and Liz Lopez Moreno, a citizen of Ecuador. Zank
and Lopez Moreno divorced in July 2009. Their divorce decree granted Zank and
Lopez Moreno joint legal and physical custody of BLZ, with alternate weekly
custody and twice-weekly visitation by each parent. It also prohibited Lopez
Moreno from taking BLZ to Ecuador without prior notice to Zank. In December
2009, Lopez Moreno took BLZ to Ecuador with her, in violation of the divorce
decree. Zank obtained an ex parte order from a Michigan state court, temporarily granting him sole legal and
physical custody of BLZ. Once Zank discovered that BLZ had been taken to
Ecuador, he contacted the U.S. Department of State and filled out a Hague
Convention petition with the United States Embassy in Ecuador. However, Zank
did file the petition with the Ecuadorian courts, or otherwise attempt to
secure the return of BLZ through procedures in Ecuador, because he had suffered
what he called “the runaround” from U.S. Embassy officials.
In Ecuador,
Lopez Moreno enrolled BLZ in a private school and arranged for her to have
language tutoring. BLZ flourished in this environment, participating in a
number of extracurricular activities and making many Ecuadorian friends. The
district court determined that, because BLZ had lived so fully in Ecuador from
the ages of 3 to 10, she “had been acclimatized to Ecuador and was settled
there,” such that she would have met the standards for establishing habitual
residency in Ecuador.
Beginning in
2010, Lopez Moreno first permitted Zank’s parents, and then Zank himself, to
visit BLZ in Ecuador. In 2010, Lopez Moreno had obtained an ex parte order from
an Ecuadorian court prohibiting BLZ from leaving the country. Lopez Moreno and
Zank reached an accord between
themselves. Under their agreement, Lopez Moreno received full legal custody of
BLZ and an increase in Zank’s child support payments from $200 to $300 a month,
and Zank “waive[d] pursuing further action arising from the arrival of the
minor child in Ecuador.” In return for his concessions, Zank received a lifting
of the 2010 Ecuadorian court order, and Lopez Moreno’s permission to have BLZ
visit him in Michigan when not in school. The district court made a specific
determination that Zank “was coerced into making the agreement.”
Zank and
Lopez Moreno brought the agreement to an Ecuadorian family court for
ratification. The Ecuadorian court approved and ratified the agreement,
granting permanent custody of BLZ to Lopez Moreno in Ecuador, but permitting
BLZ to make temporary visits to Zank in the United States. Following the
Ecuadorian agreement, BLZ made one visit to Zank in Michigan in 2014. In 2015,
before a second visit of BLZ to Zank in Michigan, Lopez Moreno and Zank entered
into a second agreement, this one in the United States. This agreement tracked
the Ecuadorian agreement. The record left
it unclear as to whether the agreement was actually filed with any court.
In 2016, Lopez Moreno again sent BLZ to
visit Zank for the summer. Zank testified that, during this visit, BLZ told him
that Lopez Moreno had physically abused her, by hitting her and throwing a
chair at her, and that she did not wish to return to Ecuador. On August 5,
2016, BLZ called Lopez Moreno, and, in a “very fast conversation,” BLZ stated
that she had learned “the entire truth” about the divorce, believed that Lopez
Moreno “was a drug user,” and had realized that Lopez Moreno had abducted her
to Ecuador. On August 10, Zank did not place BLZ on a scheduled flight to
Florida to visit Walt Disney World with Lopez Moreno’s father, and, on August
15, Zank did not place BLZ on a flight scheduled to take BLZ from Michigan back
to Ecuador.
On October
10, 2016, Zank filed a petition with the Montcalm County Circuit Court for
permanent custody of BLZ. The Friend of the Court investigated Zank’s living
situation and determined that the best interest of BLZ was for Zank to be
granted permanent custody of her, given, among other things, that Lopez Moreno
had violated the 2009 custody order and that BLZ voiced a preference for living
permanently with Zank. Lopez Moreno was not present in this process, apparently
because she had not updated her address with the court when she left for
Ecuador. On October 31, 2016, the Montcalm County Circuit Court granted
permanent sole custody of BLZ to Zank.
On August 14, 2017, Lopez Moreno filed
this Hague Convention petition in U.S. District Court, contending that Zank’s
retention of BLZ in Michigan was wrongful. The complaint sought the immediate
return of BLZ to Ecuador and made the allegation, necessary to relief under the
Convention given Lopez Moreno’s arguments, that BLZ was a habitual resident of
Ecuador. The district court rejected this argument. Although the court
acknowledged that BLZ had spent such extensive time and maintained such a
social connection to Ecuador that she would otherwise be deemed a habitual resident
of that nation, it held that “because [Lopez Moreno] abducted BLZ in violation
of Michigan law and brought her [to Ecuador] in 2009,” she could not have
become habitually resident in Ecuador, and that her habitual residence
accordingly remained in the United States. The district court proceeded to
decide further that, because BLZ maintained habitual residency in the United
States, the 2009 custody order continued to apply to BLZ and the subsequent
Ecuadorian and American agreements between Lopez Moreno and Zank did not
overcome that custody order. The former did not apply because an Ecuadorian
court did not have jurisdiction over an American custody assignment, and the
latter did not because there was no evidence that the agreement was ever
ratified by the Montcalm County Circuit Court. Lopez Moreno appeals.
The Court of
Appeals observed that the central issue in this case was whether Lopez Moreno’s
questionable removal of BLZ from Michigan to Ecuador in 2009 precluded the
possibility that BLZ had become habitually resident in Ecuador for purposes of
Lopez Moreno’s Hague Convention challenge to Zank’s retention of BLZ in
Michigan in 2016.
The Sixth Circuit noted that it had held that,
for children above the age of cognizance,, a habitual residence is “the nation
where, at the time of [her] removal, the child has been present long enough to
allow ‘acclimatization,’ and where this presence has a ‘degree of settled
purpose from the child’s perspective.’ ” Robert v. Tesson, 507 F.3d 981, 993
(6th Cir. 2007). The Court pointed out that object and purpose of the Hague
Convention is to provide an international legal scheme to “protect children
internationally from the harmful effects of their wrongful removal or retention
and to establish procedures to ensure their prompt return to the State of their
habitual residence.” Hague Abduction Convention, Preamble. States party to the
Convention therefore undertake to return a wrongfully taken child when
proceedings are brought promptly, subject to certain exceptions related to the
child’s welfare and desires. The Convention also allows a person seeking relief
to bring these proceedings without the assistance of State agents. Therefore,
if Convention procedures are not fully pursued when a child is first abducted,
it makes little sense to categorically permit later self-help abduction in the
other direction, after the child has been acclimatized in the second country. Permitting
re-abduction results in a total disregard for the limits that the Convention
puts on the remedy for the first abduction, such as time limits, and exceptions
for the child’s welfare or mature preference. Permitting abduction for a second
time carries the same threat to the child’s well-being of being torn from an
accustomed residence. The Convention scheme achieves its purposes only if
Convention processes are applied, with applicable exceptions, each time a child
is abducted from a country in which the child has been acclimatized. The rule
applied by the district court in this case was not consistent with such a
scheme. The Sixth Circuit noted that at least two sister circuits had come to a similar
conclusion. Kijowska v. Haines, 463 F.3d 583, 588–89 (7th Cir. 2006) ; Ovalle
v. Perez, 681 F. App’x 777, 779 (11th Cir. 2017).
The court
stated that its holding that Ecuador was the habitual residence of BLZ in 2016
did not automatically mean that Zank had
to return her . It held that just as Lopez Moreno could have raised defenses to
a Hague Convention case had one been brought in Ecuador, Zank could raise such
defenses in this case on remand. Several such defenses were raised by Zank in
the district court below, but the district court had no occasion to reach them.
At oral argument in this appeal, counsel for Lopez Moreno agreed that such
arguments could be addressed in the district court should Lopez Moreno succeed
in obtaining a remand.
It remanded the case to the district court for a
first evaluation of Zank’s defenses against Lopez Moreno’s prima facie Hague
Convention case. Such a remand was warranted because these defenses are all
fact-intensive ones, generally requiring specific and detailed fact-finding by
the district court. See Friedrich II, 78 F.3d at 1067.
The judgment of the district court was reversed and the case was remanded for further proceedings consistent with this opinion.
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