Monday, September 17, 2018
Flores v Elias-Arata, 2018 WL 3495865 (M.D. Florida, 2018) [Peru] [Habitual Residence] [Petition granted]
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.