Sunday, July 22, 2018
Moreno v Zank, --- F.3d ----, 2018 WL 3467919 (6th Cir., 2018) [Ecuador][Habitual residence][Re-abduction]
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.