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Sunday, December 2, 2018

Calixto v Lesmes, --- F.3d ----, 2018 WL 6257410 (11th Cir., 2018)[Colombia] [Habitual residence] [Conditional intent]

          In Calixto v Lesmes, --- F.3d ----, 2018 WL 6257410 (11th Cir., 2018) Johan Calixto filed a petition in federal court seeking the return of his 5-year old daughter, M.A.Y., to Colombia. Mr. Calixto had signed a travel consent form allowing M.A.Y. to travel from Colombia to the United States with her mother, Hadylle Lesmes, from November of 2015 until November of 2016. In his petition, Mr. Calixto alleged that Ms. Lesmes had wrongfully retained M.A.Y. in the United States and away from Colombia, her country of habitual residence, beyond November of 2016 and in violation of the Convention. The district court denied Mr. Calixto’s petition for return. It concluded that Ms. Lesmes’ retention of M.A.Y. in the United States was not wrongful under the Convention because Mr. Calixto and Ms. Lesmes had shared an intent to change M.A.Y.’s habitual residence from Colombia to the United States, and because M.A.Y.’s habitual residence had subsequently become the United States through acclimatization. The district court did not, however, address whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States. The Eleventh Circuit held that the answers to those questions were critical to the proper disposition of the appeal, and because shared intent is a factual determination, it remanded for further factual findings.

          The Court pointed out that it was concerned with how and when a child’s habitual residence might change from one country to another, not with how an initial habitual residence comes to be in the first place. To that end, it had previously decided to follow and adopt the reasoning of the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), and held that “[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Ruiz, 392 F.3d at 1252. “[T]he relevant intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child’s residence.” In analyzing whether a child’s habitual residence has changed, a court must first determine whether the parents or guardians (i.e., the persons entitled to fix the place of the child’s residence) shared an intent to change the child’s habitual residence. The “unilateral intent of a single parent” will not suffice to change a child’s habitual residence. “[T]he difficult cases arise when the persons entitled to fix the child’s residence do not agree on where it has been fixed.” “Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence.” There must also be “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” The evidence required to show acclimatization becomes greater if there was no shared settled intent of the parents to change a habitual residence. If there is “no shared settled intent on the part of the parents to abandon the child’s prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence.” A change in habitual residence can also be found if a court can “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring a return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed.”

          Mr. Calixto and Ms. Lesmes were both born in Colombia. They met there. On June 17, 2012, Ms. Lesmes gave birth to their daughter, M.A.Y., who lived continuously and exclusively in Colombia until November of 2015. Samir Yusuf, Ms. Lesmes’ father, lived in the United States as a permanent resident. In August of 2013, after M.A.Y. was born, Ms. Lesmes obtained U.S. permanent residency. To maintain that status, Ms. Lesmes traveled to the United States at least three times between August of 2013 and October of 2015, staying in this country for a total of 17 or 18 months. The last of these trips was from November of 2014 to October 31, 2015, when Ms. Lesmes returned to Colombia to help finalize M.A.Y.’s own application for U.S. permanent residency. For these 17 or 18 months, which constituted nearly half of M.A.Y.’s life as of November of 2015, M.A.Y. remained in Colombia in the care of Mr. Calixto, Ms. Lesmes’ mother, or sometimes both. Mr. Calixto did not oppose Ms. Lesmes obtaining U.S. permanent residency. He supported it, because the two of them had discussed moving together to the United States, along with M.A.Y., as a family. Mr. Calixto encouraged and facilitated M.A.Y.’s obtaining U.S. permanent resident status, and Ms. Lesmes filed an application for her residency in October of 2013. Mr. Calixto took M.A.Y. to a required medical examination in October of 2015, and did not object to M.A.Y. attending her final application interview on November 5, 2015. Mr. Calixto testified that he was aware of this final interview, and that it was part of the plan for him, Ms. Lesmes, and M.A.Y. “to come to the United States as a family.”  Sometime in November of 2015, Mr. Calixto executed a travel consent form with the Colombian Ministry of Foreign Affairs authorizing Ms. Lesmes to remove M.A.Y. from Colombia.  Under Colombian law, Ms. Lesmes could not have legally taken M.A.Y. from Colombia without this consent form. The travel consent form indicated “November 2015” as the “date of departure from the country of the child,” and “November 2016” as the “date of return or entry into the country of the child.”  M.A.Y. obtained U.S. permanent resident status on November 24, 2015. On that day, Mr. Calixto accompanied Ms. Lesmes and M.A.Y. to the airport for their trip to the United States. Mr. Calixto testified that this was a “happy occasion” because it signaled “[a] new beginning in the United States.” After Ms. Lesmes and M.A.Y. arrived in the United States, Mr. Calixto applied for a U.S. tourist visa twice. Each time his application was denied. Since their arrival in the United States in November of 2016, however, neither Ms. Lesmes nor M.A.Y. returned to Colombia.

          The parties disputed the circumstances surrounding the travel consent form executed by Mr. Calixto and M.A.Y.’s departure from Colombia. The court discussed Mr. Calixto’s version first, and then Ms. Lesmes’. The magistrate judge issued a report on October 19, 2017, recommending that the district court deny Mr. Calixto’s petition. The report did not resolve the significant conflicts in the testimony, such as the status of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015, the reason for Mr. Calixto’s execution of the travel consent form, and the circumstances surrounding the travel of Ms. Lesmes and M.A.Y. to the United States. Framing the critical issue as M.A.Y.’s habitual residence in November of 2016, the date of the alleged wrongful retention, the magistrate judge concluded that at that point M.A.Y.’s habitual residence was the United States, and not Colombia. As a result, the retention was not wrongful. The magistrate judge found that Mr. Calixto and Ms. Lesmes “shared the intent for the United States, not Colombia, to be M.A.Y.’s habitual residence [,]” and that M.A.Y. had acclimated to the United States since her arrival in November of 2015. The magistrate judge rejected Mr. Calixto’s reliance on the travel consent form as proof that “his intent for M.A.Y.’s habitual residence to be the United States was conditioned on his ability to join [Ms. Lesmes] and M.A.Y. in the United States.” The district court adopted the magistrate judge’s report and denied the petition.
          The eleventh Circuit observed that the parties did not dispute that Mr. Calixto had custody rights regarding M.A.Y. under Colombian law, that he was exercising those rights, and that M.A.Y.’s retention in the United States, if wrongful, breached those rights. Ms. Lesmes did not deny that M.A.Y. habitually resided in Colombia from her birth through November of 2015. The critical question, was whether in November of 2016 M.A.Y. remained a habitual resident of Colombia or whether her habitual residence had changed to the United States. If it is the former, Mr. Calixto established a prima facie case requiring M.A.Y.’s return to Colombia. If it is the latter, M.A.Y.’s retention was not wrongful under the Convention, and Mr. Calixto’s petition fails.

          The Court indicated that in a slightly different Hague Convention context, it had considered whether a parent’s relocation with a child from one country to another was conditioned upon the occurrence of certain events, and whether the first country would remain the child’s habitual residence if those events did not come to pass (or, alternatively, whether there would be a change in the child’s habitual residence if the events took place as expected). See, e.g., Ruiz, 392 F.3d at 1254 (“Melissa’s intent with respect to the move to Mexico [with the children] was clearly conditional.”). Other circuits have done the same. In Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012), a father left Mexico for New York to find work, leaving behind his wife and six-month old daughter. Three years later, the mother and father arranged for the daughter to be smuggled into the United States and reunited with her father in New York, with the mother following afterwards. Although the daughter was successfully brought into the United States, the mother’s repeated efforts to enter were blocked, to the point where she was arrested and deported back to Mexico. The Second Circuit agreed with the district court that “it was more likely than not that [the mother] intended for [the daughter] to live in the United States only if she herself could join the household and continue to raise her child.” The Second Circuit revisited the issue of conditional intent in Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013) where the district court found that “although [the father] had consented to the children’s removal to the United States, that consent was a conditional one, contingent on his accompanying them and residing with them and [the mother] as a family in the United States.” The Second Circuit affirmed, agreeing that Canada remained the children’s habitual residence. Quoting Mota, the Second Circuit reiterated that “if the parents here did not agree that the children would live indefinitely in the United States regardless of their father’s presence, it cannot be said that the parents ‘shared an intent’ that New York would be the children’s state of habitual residence.” Although the parents had a shared intent to relocate to New York, “the extent to which that intent was shared was limited by [the father’s] conditional agreement that the relocation was to be accomplished as a family.” Mota and Hofmann were persuasive. The Eleventh Circuit held that the intent to change the habitual residence of a child from one country to another can be conditioned on the ability of one parent to be able to live in the new country with the child. In our view, there is no reason why such a conditional intent cannot be expressed in a document that permits the child to travel to her new country for a limited period of time. To the extent that the district court here believed that the travel consent form executed by Mr. Calixto could not render his intent about M.A.Y.’s habitual residence in the United States conditional, it was mistaken.

          Mr. Calixto and Ms. Lesmes disagreed about whether they shared an intent to change M.A.Y.’s habitual residence to the United States. Their dispute revolved around the status of their relationship in November of 2015, and the meaning of the November 2016 return date on the travel consent form. The district court did not resolve these factual disputes. On this record the Court did not believe that the district court could have decided the issue of M.A.Y.’s habitual residence without making factual findings about the state of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015 and the meaning of the return date on the travel consent form. And it could not have resolved the matter of shared intent the way that it did by crediting Mr. Calixto’s testimony. It concluded that the district court had to resolve the conflicts between the accounts of Mr. Calixto and Ms. Lesmes in order to properly decide the question of M.A.Y.’s habitual residence. It directed the district court to also address on remand whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence as set forth in Ruiz, 392 F.3d at 1254. The case was remanded to the district court for further factual findings as set forth in this opinion.