Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018) [Ecuador] [Habitual Residence] [Petition granted]

          In Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018) the district court granted Petitioner Ronald Javier Velez Saltos’ petition for the return of the seven-year-old minor child, R.C., to Ecuador.

         Petitioner was the father of R.C., a citizen of Ecuador, and was living in Ecuador. Respondent was R.C.’s mother, a citizen of Ecuador, and residing in New Jersey with her new husband, Dalton Mejia, who was an American citizen. Petitioner and Respondent were married in Ecuador on February 13, 2010, and had R.C. on July 7, 2011. R.C. was born in Ecuador and lived there for the first five years of her life. The parties separated in February 2012, and later divorced on December 7, 2016.

          On November 23, 2012, the parties entered into a custody agreement, whereby R.C. would live with Respondent, and Petitioner would have visitation rights from 5:30 p.m. to 9:30 p.m. on weekdays, and noon to 5:00 p.m. on the last Sunday of each month. An Ecuadorian Court approved the custody agreement the following day. (Petitioner testified that, because R.C. was very young at the time of the custody agreement, the Ecuadorian Court thought it would be best for her to be in the primary care of her mother. Petitioner spent time with R.C. under the terms of the agreement, which included seeing R.C. at school and for birthdays and holidays, as well as taking R.C. to visit his three other children from a prior marriage. Petitioner was also required to pay child support to R.C. and his other three children in the amount of $800 per month. Petitioner’s child support payments for R.C. were made through a judicial process pursuant to a court order. Under Ecuadorian law, Petitioner was prohibited from leaving the country because he was paying child support through a court order.  At some point after the separation, Petitioner declared bankruptcy and, based on financial status and inability to make the child support payments, the amount that Petitioner paid in child support was reduced. Because Petitioner fell behind on his payments, Respondent alleges that Petitioner owed about $5,000.00 in child support arrears. Respondent also claims that Petitioner cancelled R.C.’s medical insurance, which Petitioner clarified was automatically cancelled after he declared bankruptcy, and that the child support payments were supposed to cover health insurance.

          In early April 2017, Respondent informed Petitioner that she wanted to take R.C. on vacation to Disney World in Orlando, Florida from April 23, 2017 to May 1, 2017, and wanted Petitioner to authorize the travel. According to Petitioner, he expressed concerns that, if something were to happen to R.C., he would be unable to travel to the United States because the court-mandated child support payments prevented him from travelling. Petitioner would only agree to authorize Respondent and R.C.’s trip if Respondent removed her claim with the court that he owed $5,000.00 in child support payments, and agree to let Petitioner pay child support directly to Respondent instead of through the court. Respondent indicated that she reluctantly agreed, and the parties completed the necessary exit permit for R.C. to travel from April 23, 2017 to May 1, 2017. Before the trip to Orlando, Petitioner paid a portion of R.C.’s school registration fees, and Respondent enrolled R.C. for the upcoming school year in Ecuador.

          On April 23, 2017, Respondent and R.C. traveled to the United States from Ecuador. On April 30, 2017, Petitioner received an anonymous phone call informing him that Respondent intended on remaining in the United States with R.C. On May 1, 2017, Respondent called Petitioner and explained that her then-boyfriend, Dalton Mejia, proposed, and that Respondent will be staying in the United States with R.C. permanently, in order to give R.C. more opportunities for her future. At no time prior to this phone call did Respondent tell Petitioner that she intended to get married in the United States or that she intended on taking R.C. to New Jersey. Respondent and R.C. then traveled from Orlando, Florida to Union, New Jersey, where they still reside today. R.C. was five at the time. R.C. completed first grade in New Jersey and was enrolled at Hannah Caldwell School, where she has been excelling both academically and socially.

          Since May 1, 2017, Petitioner was unable to contact R.C. Petitioner filed this emergency petition with the Court on May 1, 2018. Service of the emergency petition was made on Respondent, and the Court issued an Order to Show Cause why R.C. should not be returned to Ecuador.

          The district court found that the parties agreed that R.C. would travel to the United States from April 21, 2017 until May 1, 2017. Petitioner testified that he expected R.C. to return to Ecuador on May 1, 2017. Therefore, the date the allegedly wrongful retention occurred was May 1, 2017. The parties did not dispute that R.C.’s habitual residence prior to her allegedly wrongful retention was Ecuador, which was bolstered by the fact that R.C.’s family, school, and entire life was in Ecuador prior to her trip to Orlando, Florida. Therefore, it found that R.C. was a habitual resident of Ecuador before her allegedly wrongful retention in the United States.

         

          According to Petitioner, Respondent’s wrongful retention violated his custody rights under Ecuadorian law, which hold that both parents have joint custody unless there is a court order to the contrary. There was no court order that terminated Petitioner’s joint custody rights. Additionally, Petitioner asserted that R.C.’s wrongful retention violated his rights under the custody agreement entered into by the parties on November 23, 2012. Respondent conceded that Petitioner had joint custody based on this custody agreement. Petitioner was unable to exercise these rights or otherwise contact R.C. since May 1, 2017, when R.C. was retained in the United States without his consent. Therefore, Petitioner had shown by a preponderance of the evidence that his custody rights were breached by R.C.’s allegedly wrongful retention in the United States.  Based on the facts, it was clear to the Court that Petitioner was sufficiently exercising his custody rights at the time of R.C.’s retention in the United States. Therefore, Petitioner made out a prima facie case that Respondent wrongfully retained R.C. in the United States in violation of the Hague Convention.

          Respondent asserted several of the affirmative defenses recognized by the Hague Convention. These affirmative defenses included: (1) that R.C. had been here for at least a year and was well settled in her home and school in New Jersey, where she was excelling socially and academically; (2) that R.C. was of sufficient maturity and has articulated her desire to stay in the United States and did not want to return to Ecuador; (3) that Petitioner was not exercising his custody rights because he did not visit or care for R.C. as articulated in the custody agreement; and (4) that R.C. would be exposed to a “grave risk of harm” if she is returned to Ecuador, based on (a) the possible abuse she may face under Petitioner’s care and (b) the human rights concerns associated with Ecuador, including the sexual exploitation of minors. The Court rejected each affirmative defense.

          The Court found Petitioner filed this emergency petition on May 1, 2018. Petitioner argued in his brief that the wrongful retention began on May 2, 2018, and that his emergency petition was therefore filed less than a year later. However, the date of R.C.’s wrongful retention was May 1, 2017. Therefore, R.C.’s wrongful retention fells into the year or more required for Respondent to invoke Article 12’s “well-settled” exception. Nevertheless, Respondent had not shown by a preponderance of the evidence that R.C. is “well-settled” within the meaning of Article 12. Upon finding that a year or more has passed, the Court must weigh several factors “informative of the child’s connection with his or her environment,” including the age of the child, the stability of the child’s residence in the new environment, whether the child attends school or day care consistently, whether the child attends church regularly, the stability of the mother’s employment or other means of support, whether the child has friends and relatives in the area, and to what extent the child has maintained any ties to the country of habitual residence. Silvestri v. Oliva, 403 F. Supp. 2d 378, 387–88 (D.N.J. 2005).

          While several of these factors weighed in favor of Respondent there were very serious concerns that weighed against applying the “well-settled” exception to this case. First, the majority of R.C.’s family lived in Ecuador, including her grandparents who R.C. remained in contact with. Second, R.C. wa at the very young age of seven, and her testimony is to be weighed accordingly. Furthermore, R.C.’s desire to remain in the United States was in part based on her living with, and under the influence of, Respondent. Notably, when R.C. was asked what she would want to do if her mother returned to Ecuador, R.C. responded, “I will go back to Ecuador because wherever [Respondent] is, I am. I am with her because we are a team.” This exchange, along with others, indicated to the Court that R.C.’s preference for New Jersey had less to do with her life in the United States, and more to do with being close to her mother. Last, and perhaps most important, Respondent and R.C. currently had an uncertain immigration status. Both Respondent and R.C. came to this country on a travel visa to Orlando, Florida, which was for a limited period of eight days.  Respondent’s Husband, Dalton Mejia, is an American citizen and was currently filing relative petitions for Respondent and R.C. to remain in the United States. However, the Court wasn’t convinced that Respondent and R.C.’s ability to remain in this country is certain, as they were vulnerable to deportation in the event that their relative petitions are denied. This fact, in conjunction with the other factors weighing against Respondent, outweighed those factors supporting the application of the “well-settled” exception. Therefore, the Court finds that Article 12’s “well-settled” exception did not apply to this case.

          For similar reasons as those expressed above, the Court found that Article 13’s second-to-last paragraph, also known as the “wishes of the child” exception, does not apply to this case either.  R.C. testified about how much she likes New Jersey, that she does not miss Ecuador, and that she does not want to return to Ecuador.  The most specific example R.C. gave as to why she does not want to return to Ecuador is that her half-sisters will tease her and pull her hair when they visit her. R.C. also testified that she wants to remain in the United States because she prefers her school here. However, much like the minor child in Tsai-Yi Yang, 499 F.3d at 279, R.C.’s testimony is more focused on why she prefers New Jersey, rather than why she specifically objects to returning to Ecuador.

          The Court also found that Respondent had not set forth sufficient facts to support the application of the exception articulated in Article 13(a) of the Hague Convention.

          A thorough review of the record in this case and Respondent’s arguments compelled the Court to conclude that there was no clear and convincing evidence that R.C. would suffer a grave risk of physical or psychological harm should she be returned to Ecuador. First, R.C. was not at risk of serious abuse or neglect if she returned to Ecuador. Respondent claimed that she had always been R.C.’s primary caretaker and to remove R.C. to Petitioner, whom she had not formed the same type of bond with, would cause R.C. great distress. R.C. also testified that she is afraid to return to Ecuador because she would no longer live with her mother. The distress caused from separating a child from their parent with whom they have a strong bond is generally not considered a grave psychological harm in cases brought under the Hague Convention. See, e.g., Carranco v. Munoz, Civil Action No. 12-7299, 2013 WL 150760, at *9 (D.N.J. Jan. 14, 2013) The Court rejected  Respondent’s arguments regarding R.C.’s risk of serious abuse or neglect in Ecuador. The Court also found that returning R.C. to Ecuador would not result in any risk of “imminent danger.” Respondent argues that the conditions in Ecuador make the country “not a safe place for a child.” For support, Respondent pointed to a 2017 Human Rights Report of Ecuador which reported high amounts of sexual abuse and exploitation of children.  While this report wass disturbing, it was not relevant to the Court’s determination, as it did not directly affect R.C. See Baxter, 423 F.3d at 373. Respondent conceded that “there is no direct evidence” to suggest that R.C. was or will be exposed to sexual abuse or exploitation in her hometown in Ecuador. Furthermore, the unfortunate fact that sexual abuse or exploitation can occur in Ecuador, like it can occur in almost any country, does not rise to the level of imminent danger articulated by the “grave risk of harm,” i.e., a war zone or the outbreak of a deadly virus. See Baxter, 423 F.3d at 373. Respondent also argues that the school system in the United States offers more opportunity than that of Ecuador. However, the loss of economic or educational opportunities alone does not rise to the level of “a grave risk of harm.” See Baxter, 423 F.3d at 373 (quoting Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001)). Therefore, the Court rejects both of Respondent’s arguments regarding R.C.’s risk of “imminent danger,” and found that Respondent cannot meet Article 13(b)’s “grave risk of harm” requirements as to apply the exception to this case.

Finally, even if any of the exceptions articulated above could be met, the Court would still act in its discretion to remove R.C., as almost all of Respondent’s arguments were focused on custody and the best interest of the child.