In Flores v Elias-Arata, 2018 WL
3495865 (M.D. Florida, 2018) the district court granted the petition for the
return of the child, J.C.O. from the
United States to Peru.
The Father and Mother, both citizens
of Peru, first met when they were fifteen years old. Now in their late
twenties, the parties have had a relationship over the last thirteen years with
frequent break-ups and reconciliations. During the course of their
relationship, the parties had a son together, who was born in Peru in January
of 2013. After the Child’s birth, during the time periods when the Mother and
Father were not a couple, the parties divided the parenting responsibilities
and the Child spent time with both parents. The Mother lived in an apartment
owned by the Father’s mother, and the Father lived with his parents. Both the
Mother and Father worked, and a nanny, Ana Victoria Sanchez del Castillo, cared
for the Child during the week.
The Mother had long desired to move to the
United States. Her mother was a United States citizen living in Fernandina
Beach, Florida, and her father, who lived in Miami, Florida, has been a legal
permanent resident of the United States since 2013. In 2010, during a time when
the Mother and Father were not in a relationship, the Mother began the process
of obtaining legal permanent resident status in the United States. When the
Mother and Father reconciled a few months later, the Mother informed the Father
of her pending permanent resident application. Later, when the Mother was
pregnant with the Child, the Mother reminded the Father of her application for
permanent resident status in the United States. In 2016, the parties agreed to
include the Child in the Mother’s application for permanent resident status,
and the maternal grandfather assisted with this process. The United States
granted the Mother’s petition at some point in early 2017.
At some point the parties agreed that
the Child would travel with the Mother to the United States in June of 2017. In May of 2017, the Mother purchased
a round-trip ticket from Lima, Peru, to the United States, and back to Peru. In
addition, on May 15, 2017, the Mother and Father executed and notarized a form
titled “Consent for Children Travelling Abroad.” The Form states that in
accordance with Peruvian law, the Father and Mother “hereby give consent for
their 4-year old son [the Child] to travel from Peru to the United States of
America and back by air (Avianca Airline).”
According to the Consent to Travel Form: It is hereby stated for the
record that the Child will travel with [the Mother]; she will take care of the
Child during the stay in the destination above. Likewise, the appearing parties
declare to know that this consent is valid for 90 (Ninety) Days after the
issuance date. The minor will travel to the United States on June 13, 2017 and
return to Peru on August 25, 2017.
On June 10, 2017, the Mother moved out of the apartment
where she was living. On June 12, 2017, the day before she was set to depart
for the United States with the Child, the Mother filed a domestic violence
claim against the father.
On June 13, 2017, the Mother and Child traveled to the United States and have
not returned to Peru since, remaining instead at the Child’s maternal
grandmother’s house in Fernandina Beach, Florida.
Soon after moving in with the maternal grandmother, the
Mother furnished a room for the Child, started working, and enrolled the Child
in daycare, all with the Father’s knowledge and without his objection. Indeed,
the Father communicated frequently with the Mother using Facebook Messenger,
and stayed in regular contact with the Child. However, in July of 2017, a
disagreement arose between the parties regarding the Child’s future and as a
result, the Mother filed a petition in Peru for the “Change of Residence of a
Minor.” In the Change of Residence Petition,
the Mother petitioned the Peruvian court for “the change of regular residency
of [the Child], who is four (04) years old, changing his address from the
Republic of Peru to the United States of North America.” After the Mother and
Child failed to return to Peru in August as scheduled, the Father filed a
request on October 2, 2017, for the international return of the Child with the
Peruvian Central Authority for the application of the Hague Convention. The
Verified Petition followed in January. In the Verified Petition, the Father
contends that the Mother either wrongfully removed the Child from Peru under
false pretenses, or is unlawfully retaining the Child in the United States
without the Father’s consent.
The district court found that prior to
June 13, 2017, the Child had lived in Peru his entire life. As such, unless the
Child’s habitual residence changed when he came to the United States in June of
2017, the Child’s habitual residence remained in Peru. See Mozes, 239 F.3d
at 1077 (instructing that a change in habitual residence “requires an
actual change in geography” .The Father maintained that the Child’s habitual
residence wa Peru because the Child’s visit to the United States was intended
to be for only a limited period of time, and the Mother unilaterally decided to
keep the Child in the United States. The Mother contended that the Child’s
habitual residence changed to the United States because, according to her, the
parties shared a settled intent that the Child live in the United States as of
June 13, 2017. In addition, the Mother asserted that return was not warranted,
even if the Child’s habitual residence was Peru, because the Father consented
or acquiesced to the Child living in the United States.
The Father maintained
that the Mother first told him that she would not return to Peru with the Child
via Facebook in July of 2017. The Father tried to convince the Mother to return
on the agreed upon date, but the Mother refused, and at some point, in July or
August, the Mother told the Father that she had filed the Change of Residence
Petition. According to the Father, the Mother refused to return to Peru unless
the Father signed an agreement allowing the Child to live in the United States
permanently, which he initially refused to do. Eventually, in an attempt to
gain the return of the Child, the Father told the Mother he would sign the
paperwork allowing the Child to live in the United States, but only if the
Mother brought the Child back to Peru first. The Father testified at the
Hearing that he was desperate and did not actually intend to sign the paperwork
had the Mother returned to Peru. When it became clear to him that the Mother
was not going to let the Child return, the Father attempted to obtain a visa to
travel to the United States but his application was denied. The Father then
sought a remedy under the Hague Convention.
The father insisted that he told the Mother on many occasions prior to
the trip that he did not consent to the Child living permanently in the United
States, and according to the Father, the parties had an ongoing disagreement
about the coordination of the Child’s studies between the United States and
Peru.
The Mother maintained that the purpose
of the June 13, 2017 trip to the United States was to move here permanently
with the Child. According to the Mother, throughout the course of her
relationship with the Father, she was always open about her pending application
for permanent resident status and her intention to move to the United States.
In addition, the Mother testified that after she became pregnant she reminded
the Father of her intention to live in the United States, and he told her: “‘Yes.
Don’t worry about that. We will arrange that.’” Indeed, the Mother asserts that
she and the Father agreed to include the Child in her permanent resident
application because they intended for the Child to live in the United States.
As to the
June 13, 2017 trip, the Mother testified that she told the Father that the
purpose of this trip was to move to the United States. According to the Mother,
she quit her job, disposed of her furniture, and moved out of the apartment
because she was moving to the United States permanently with the Child.
Likewise, the Mother obtained a job in the United States, enrolled the Child in
daycare here, and furnished a room for the Child at the grandmother’s house in
Fernandina Beach, Florida. The Mother insisted that the Father’s awareness of
these activities demonstrated his knowledge of the move’s permanence.
Specifically, the Mother testified that the “initial plan” was “that my [C]hild
would remain permanently here [in the United States], begin school, and that I
would visit him with my [C]hild in Peru. So, the initial plan was that the
[C]hild would live here and ... we would coordinate the visits to Peru in
accordance to his schooling and my job.”
Although the parties’
testimony conflicted, the documents submitted into evidence during the Hearing
supported only one version of events, that the parties never reached an
agreement, either before or after the Child’s departure from Peru, about where
the Child should live.
In addition to the Facebook messages, the Mother’s contention that
the parties shared a settled intention for the Child to permanently relocate to
the United States was contradicted by her actions in filing a domestic violence
claim against the Father the day before she was scheduled to depart with the
Child to the United States.
Based on the evidence, the
Court was convinced that the Father never agreed to allow the Child to live in
the United States. Unable to convince the Father to see things her way, the
Mother, who had long planned to move to the United States, unilaterally decided
that the Child would remain with her in the United States. While the Mother may
have formed this intention well before she left Peru with the Child, in the
absence of shared parental intent, the Child’s habitual residence remained
in Peru. Thus, return of the Child was mandated under the Convention unless the
Mother could establish an affirmative defense. See Baran, 526 F.3d
at 1344. However, the Mother’s affirmative defenses failed for the same
reasons−the Father never agreed that the Child could move to the United States.
The Mother’s argument that the Father consented to the Child’s
permanent relocation to the United States was primarily based on his agreement
with and participation in obtaining permanent resident status for the Child.
However, in light of the Father’s testimony, as corroborated by the Facebook
messages, it was apparent that the Father did not believe that obtaining this
status for the Child required the Child to live in the United States.
Likewise, the Mother’s
argument that the Father subsequently acquiesced to the Child’s change of residence
was not supported by the evidence.
Because the parties never shared a settled mutual intent to
relocate the Child to the United States, the Child’s habitual residence remained
in Peru. Likewise, as the Father neither consented to a permanent move prior to
the June 13, 2017 departure, nor acquiesced to a permanent retention after the
departure, the Mother failed to establish an affirmative defense. Accordingly,
the Hague Convention mandated the prompt return of the Child to Peru to allow
the Child’s country of habitual residence to resolve the ongoing custody
dispute between the parties.
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